552 Wheat Appellant V E Lacon Co LTD Respondents PDF

552 HOUSE OF LORDS [1966]
A
[HOUSE OF LORDS]
H. L. (E.)* WHEAT APPELLANT

196
_ 6 AND
Dec. 13,
H
i&66: E. LACON & CO. LTD RESPONDENTS
B
Feb. 15
Occupiers? Liability—" Occupation "—Inn—Manager employed by
owners of inn—Manager's wife allowed to take in paying guests in
private part of premises—Right of owners to enter private part for
specific purposes—Paying guest killed by fall on staircase in
private part—Whether owners in " occupation "—Whether any
duty of care owed—Whether in breach of duty—Occupiers' „
Liability Act, 1957 (5 & 6 Eliz. 2, c. 31), ss. 1, 2. °
Occupiers' Liability—Common duty of care—Inn—Paying guest killed
by fall on staircase—Staircase left unlighted by manager—Stan
dard of care—Liability of owners of inn—Occupiers' Liability
Act, 1957, ss. 1, 2.
Negligence—Contributory negligence—Duty owed by injured party—
Descending staircase in dark—Duty to act carefully—Death of D
injured party—Whether contributory negligence.
Court of Appeal—Fact, question of—Appeal from lower court—
Duty of appellate court to decide what inference should be drawn
from undisputed evidence—Fall down stairs in dark—Cause of
fall.
The defendants, who were brewers, were the owners of a jg
public-house the management of which they entrusted to a
manager (who was also the licensee) employed by them under a
service agreement. The agreement required him to carry on the
business of selling the defendants' drinks on their behalf in the
licensed portion of the premises (the ground floor) and to comply
with their directions in relation to that business. He was to allow
the defendants to enter the premises for the purpose of viewing the JI
state of repair, testing or inspecting the stocks and was not to part
with possession of the premises or any part thereof.
Clause 7 provided:
"The manager shall and may so long as he shall continue
in the service of the employers occupy the same public-house
without paying any rent, rates, or taxes for the same but
shall quit . . . immediately upon ceasing to be employed by Q.
the employers or at any time on receiving 28 days' notice
in writing. . . . Such occupation shall not . . . create any
tenancy as between the parties hereto nor give the manager
any estate or interest in the premises."
* Present: VISCOUNT DILHORNE, LORD DENNING, LORD MORRIS

OF BORTH-Y-GEST, LORD PEARCE and LORD PEARSON.
A.C. AND PRIVY COUNCIL 553
A There was no direct access between the licensed premises on H. L. (E.)

the ground floor and the living accommodation on the first floor. j ^
There was a separate entrance through a door marked " P r i -
vate " which opened onto a staircase leading to the first floor. Wheat
There was also a back staircase from the first floor, at the bottom E. Lacon
of which there was a door opening onto a back yard, which gave & Co^Ltd.
access to the serving area behind the bars. The defendants
B allowed the manager's wife, as a privilege, to take in paying guests
in the upper part of the premises.
The plaintiff and her husband were staying in the private part
of the premises as paying guests of the manager's wife. At about
9 p.m. on September 4, 1958, the husband left the plaintiff on
the first floor to go to buy some drinks from the bar. He was
subsequently found at the foot of the back staircase with a
Q fractured skull from which he died. There was an electric light
at the top of the staircase but there was no bulb in it at the time
of the accident. There was also a handrail down the left-hand
side of the staircase terminating directly above the third step.
The plaintiff brought an action under the Fatal Accidents
Acts, 1846-1908, and the Law Reform (Miscellaneous Provisions)
Act, 1934, against the defendants for damages in respect of her
_ husband's death, alleging negligence and breach of duty under
D
the Occupiers' Liability Act, 1957.1 Winn J. found that the
probability was that the deceased fell from about the third
step and was caused to fall by the fact that his hand which he
had been running along the handrail came to the end of it. He
probably stepped out with confidence thinking he had come to the
bottom of the stairs. He found that there were two concurrent
causes of the fall, the fact that the handrail did not extend to the
E foot of the stairs and " the absence of any light." Winn J. held
that the defendants were in occupation of the back staircase and
therefore owed the common duty of care under the Occupiers'
Liability Act, 1957, but that they were not in breach of any duty
1
Occupiers' Liability Act, 1957, enacted the persons who are to be
s. 1: "(1) The rules enacted by the treated as an occupier and as his
■j. two next following sections shall visitors are the same . . . as the
* have effect, in place of the rules of persons who would at common law
the common law, to regulate the be treated as an occupier and as his
duty which an occupier of premises invitees or licensees. . . ."
owes to his visitors in respect of S. 2: " (1) An occupier of premises
dangers due to the state of the pre- owes the same duty, the ' common
mises or to things done or omitted duty of care,' to all his visitors,
to be done on them. (2) The rules except in so far as he is free to and
so enacted shall regulate the nature does extend, restrict, modify or
n of the duty imposed by law in con- exclude his duty to any visitor or
** sequence of a person's occupation or visitors by agreement or otherwise.
control of premises and of any (2) The common duty of care is a
invitation or permission he gives (or duty to take such care as in all the
is to be treated as giving) to another circumstances of the case is reason-
to enter or use the premises, but able to see that the visitor will be
they shall not alter the rules of the reasonably safe in using the premises
common law as to the persons on for the purposes for which he is
whom a duty is so imposed or to invited or permitted by the occupier
whom it is owed; and accordingly to be there."
for the purpose of the rules so
H. L. (E.) since the staircase was only dangerous if not lit and they could A
jggg not reasonably foresee that the manager or his wife would have
left it unlighted and he dismissed the plaintiff's claim. The Court
Wheat 0 f Appeal (Sellers L.J. dissenting) held that since the defendants
E. Lacon had precluded themselves from entering the private part of the
& Co. Ltd. premises (except for certain specific purposes) they were not in
occupation of the premises and therefore did not owe the
common duty of care in respect of the back staircase. On the B
plaintiff's appeal: —
Held, that the defendants were in occupation of the first floor
of the premises for the purposes of the Occupiers' Liability Act,
1957, and owed the plaintiff and her husband the common duty
of care; but that there was no evidence of any breach of that duty
and, accordingly, the appeal failed (post, pp. 574B, 576G, 581F,
585D, 586E-F, 587B, 590G—591A). 0
Per Lord Denning, Lord Morris of Borth-y-Gest, Lord Pearson
and Lord Pearce. Two persons may be occupiers of the same
premises at the same time and both be under a duty of care to
visitors (post, pp. 581A, 585D, 587B).
Per Viscount Dilhorne. There being no dispute as to the
primary facts and no direct evidence as to the cause of the fall it
is the duty of the appellate court to evaluate the evidence and to D
decide what inference, if any, can be drawn from the undisputed
evidence. The evidence was not sufficient to enable any deduction
to be made as to the probable cause of the fall (post, pp. 569E,
570D).
Benmax v. Austin Motors Ltd. [1955] A.C. 370; [1955] 2
W.L.R. 418; [1955] 1 All E.R. 326, H.L.(E.) applied.
Per Viscount Dilhorne. The defendants did not, by their -n
service agreement with the manager, divest themselves of the
occupation of any part of the public-house (post, pp. 571G—572A).
The agreement did not distinguish between one part of the
premises and another and it was not right to infer it from the
facts (post, p. 572B-D). The manager occupied the premises as a
servant on behalf of the defendants and not on his own account
(post, pp. 573F—574A). -p
Dicta of Tindal C.J. in Dobson V. Jones (1844) 5 Man. & Gr.
112, 120; Glasgow Corporation v. Johnstone [1965] A.C. 609;
[1965] 2 W.L.R. 657; [1965] 1 All E.R. 730, H.L. (Sc.) and Tennant
v. Smith [1892] A.C. 150; 8 T.L.R. 434, H.L.(Sc.) applied.
Per Lord Denning. No guidance is to be obtained from the use
of " occupier " in other branches of the law (post, p. 577F). The
test in Salmond on Torts, 14th ed. (1965), p. 372, that an occupier
is "he who has the immediate supervision and control and the "
power of permitting or prohibiting the entry of other persons " is
too narrow. There are other people who are occupiers even
though they do not say " Come in." If a person has any degree of
control over the state of the premises it is enough (post, pp. 578F—
579A).
Per Lord Morris of Borth-y-Gest. It may be that the extent
of the particular control which is exercised within the sphere of
A joint occupation will become a pointer as to the nature and extent H. L. (E.)
of the duty which reasonably devolves on a particular occupier j ^
(post, p. 586D).
Per Lord Pearson. The foundation of occupier's liability is Wheat
occupational control, i.e., control associated with and arising from E. Lacon
&
the presence in and use of or activity in the premises (post, Co. Ltd.
p. 589F).
B Duncan v. Cammell Laird & Co. Ltd. [1943] 2 All E.R. 621
applied.
Decision of the Court of Appeal [1966] 1 Q.B. 335; [1965]
3 W.L.R. 142; [1965] 2 All E.R. 700, C.A., affirmed on different
grounds.
APPEAL from the Court of Appeal (Harman and Diplock

C L.JJ., Sellers L.J. dissenting).
This was an appeal, by leave of the Court of Appeal, by
Heather Coral Wheat, as widow and administratrix of the estate
of Walter Wheat, deceased, who was the plaintiff in the action,
from a decision of the Court of Appeal, dated April 13, 1965,
dismissing an appeal from a decision of Winn J., dated October 7,
D 1964, in which he dismissed a claim by the appellant under the
Fatal Accidents Acts, 1846-1908, and the Law Reform (Miscel-
laneous Provisions) Act, 1934, against the respondents, E. Lacon
& Co. Ltd., for damages for negligence and breach of the common
duty of care under the Occupiers' Liability Act, 1957.
The Golfers' Arms was a licensed public-house owned by the
E respondents, and managed on their behalf by Leonard Henry
Richardson, who was employed by the respondents under an
agreement in writing dated April 3, 1951.* The manager's wife
was not employed by the respondents but was expected to assist
her husband in the performance of his duties. The ground floor
of the premises was largely occupied by the bars customary in an
F ordinary licensed house. Besides the entrances to the bars there
was also an entrance marked "Private" which led to the upper
part of the premises by means of a staircase (the front staircase).
Another staircase (the back staircase) led down from the upper
part of the premises to a small vestibule and then through a door
into an enclosed yard. From that yard there was access to the
^ street through a gate as well as access to the service part of
the bars through the beer store and another yard. The back
staircase was rather steep and the stairs only 27 inches wide.
The staircase was enclosed on both sides by walls until within
three steps of the bottom, when both walls receded. There
* The relevant clauses of the agreement are set out in the opinion of
Viscount Dilhorne, post, p. 571D-G.
H. L. (E.) was a handrail on the wall but that stopped prematurely at the A
1966 point where the walls receded. For the last three steps there was
Wheat no rail and no support on either side. That staircase was installed
E Lacon ^y the respondents in 1938 primarily as an alternative means of
& Co. Ltd. escape in case of fire. The manager and his wife lived in the upper
part of the premises, which comprised six bedrooms, a kitchen, a
living-room and sitting-room. All the furniture belonged to them. B
The respondents paid for the lighting and heating of the whole of
the premises and they supplied all the electric bulbs required.
They also paid the rates. The manager's wife obtained the respon-
dents' permission to take in paying guests in the upper part of the
premises during the summer. That was regarded by the respon-
dents as a privilege and they took no part of the receipts: viz., C
minutes of meeting of managers dated April 23, 1954, a clause of
which read:
"Authority for summer letting was a generous privilege
granted by the company and no charges were made to
managers for the use of accommodation, lighting and heating.
It was not this company's intention, at the moment, to remove JJ
this privilege, but some concern was felt that, in certain in-
stances, managers' wives were not fulfilling their obligations
to the company as they were giving more attention than was
justified to this letting. Managers were, therefore, requested
to give attention to this matter to avoid the possibility of the
withdrawal of this privilege."
The deceased and his family were staying in the upper part of E
the Golfers' Arms as paying guests. They arrived on August 30,
1958, and were to remain there for one week. At about 9 p.m. on
September 4, 1958, the deceased was found at the foot of the back
staircase. He was gravely injured, having fractured his skull, and
he died some hours later. It was getting dark at that time. Sunset
that day was 7.41 p.m. and the moon did not rise until 10.31 p.m. F
There was an electric light at the top of the staircase, but at the
time of the accident there was no bulb in it.
Winn J. ruled that a reasonable and probable conclusion on the
evidence was that the deceased fell from about the third step from
the bottom of the stairs; that he was directly caused so to fall by
the fact that his hand came to the end of the handrail and that what G
probably happened was that he then stepped out with the
confidence that his foot was about to come upon the floor level,
thinking he had come to the bottom of the staircase. Winn J.
held that there were two concurrent causes of the deceased's fall:
the premature termination of the handrail and the absence of
light; that the respondents were occupiers of the premises and
A owed the deceased a duty under the Act of 1957 but that they H. L. (E.)
were not liable to the plaintiff because they could not reasonably 1966
have foreseen that the deceased would use the back staircase when wheat
it was not adequately lit; and because the removal of the bulb „ 7^
from the light at the top of the stairs was a novus actus interveniens. & Co. Ltd.
The appellant appealed to the Court of Appeal, who held by
B a majority that the respondents were not in occupation of the
staircase.
The appellant appealed.
The facts are more fully set out in the opinion of Viscount
Dilhorne.
C David Croom-Johnson Q.C. and /. D. Hayman for the plaintiff.

There is no definition in the Occupiers' Liability Act, 1957, of
occupation or control, although the statute is specifically stated
by subsection (1) of section 1 to regulate the duty of an occupier
and subsection (2) introduces the word " control." The section as
a whole envisages that the duty shall be on the person who is him-
D self physically in occupation; or someone who is vicariously in
occupation through his servant or agent; or the person who is in
control for the relevant purpose. Occupation and control may be
the same in some cases and not in others. It is to be emphasised
that the words of section 1 (2) are apt to cover the ordinary duty of
an occupier. Provided a visitor is lawfully there the person in
E occupation or control owes him a duty. Diplock L.J.2 in the Court
of Appeal dealt with a possible alternative argument that Lacons
were in breach of their duty under Donoghue v. Stevenson3 but
the case was not pleaded in that way and in any event the plaintiff
appears to be in a better position under the Act of 1957.
The questions that arise for consideration are: (1) the relation-
F ship between Lacons and Richardson; (2) whether Lacons were in
occupation or control either wholly or partially in relation to the
relevant danger, i.e., the structural condition of the staircase;
(3) whether the deceased was someone to whom Lacons had given
permission to come on the premises or someone whom Lacons
were deemed to have permitted to come on the premises;
G (4) whether Lacons had knowledge of such facts as should have
told them that the stairs were or might be a danger to somebody
such as the deceased; (5) whether the deceased fell because of that
danger; and (6) whether he was guilty of contributory negligence.
2
[1966] 1 Q.B. 335, 367; [1965] » [1932] A.C. 562; 48 T.L.R.
3 W.L.R. 142; [1965] 2 All E.R. 700, 494, H.L.(Sc).
C.A.
558 HOUSE OF LORDS [1966J
H. L. (E.) The first two questions involve a consideration of the service A

i%6 agreement of April 3, 1951, under which Richardson was appointed
a
Wheat full-time resident manager. That agreement placed no obligation
on
E Lacon Ri c n a r d s o n regarding the structural condition of the Golfers'
& Co. Ltd. Arms. Lacons owed the Richardsons a common law duty to keep
the premises in proper structural condition and had anything hap-
pened as a result of bad structure or failure to repair, Lacons B
would have been in breach of an implied term of the master and
servant contract. While Mrs. Richardson was not mentioned in
the service agreement, a wife was considered in the trade as being
included in the agreement. The duty to repair remained with
Lacons and the whole tenor of the agreement indicates that it
would remain there; accordingly, Lacons remained in occupation C
and control.
Although Diplock L.J.4 draws a distinction between upstairs
and the ground floor, the agreement draws no such distinction. It
refers to the whole building as " the public-house called the
Golfers' Arms " and refers to " public-house " and " premises "
interchangeably. Had it referred to licensed premises (which it D
does not) it would only have referred to the ground floor. It is
submitted that the brewers were in occupation of the whole of the
Golfers' Arms and never divested themselves of any part of it.
There was no tenancy and the agreement expressly disclaims one:
see cl. 7. Richardson was a service occupier who had to devote his
whole time to running the business and it was necessary for him E
to live upstairs for the proper performance of his duties as the
manager of the public-house and clause 7 required him to do so,
but the word " occupation " in that clause is not a term of art, any
more than is " possession " in clause 6.
Lacons were the de facto occupiers, have never divested them-
selves of occupation, and are listed as the rateable occupiers of P
the whole premises. They were in occupation through their ser-
vant or agent, but if Richardson did have some occupation
different from Lacons, Lacons were still in control. If Richardson
was the occupier he was the occupier on behalf of Lacons and was
there to administer the occupation of Lacons. Occupation may
be personal or by putting another person in one's own place. Gr
Jenkins L.J. in Pegler v. CravenB crystallised the position of
Lacons in the Golfers' Arms when he says that occupation is not
necessarily confined to actual personal occupation of the occupier
4 5
[1966] 1 Q.B. 335, 370; [1965] [1952] 2 Q.B. 69, 74; [1952] 1
3 W.L.R. 142. T.L.R. 586; [1952] 1 All E.R. 685,
C.A.
A.C AND PRIVY COUNCIL 559
A himself and that in certain circumstances it extends to vicarious H - L - CE.)

occupation by a caretaker or other servant or by an agent. White 1966
v. Bayley 6 does not quite cover the point because the servant was wheat
trying to establish a tenancy against his master: see Willes J. and E j ^
Byles J.7 Glasgow Corporation v. Johnstone8 is a rating case in & Co. Ltd.
which much was said about the occupation of a servant: see in
B particular Lord Hodson9 and Lord Guest.10 Whatever the test
in rating cases it is amply satisfied in the present case. [Reference
was made to Mayhew V. Suttle " and Reg. v. Spurrell.12]
On the second question, the Act of 1957 deliberately states
that occupation and control must be considered in relation to the
common law. These may be the same thing, but the use of the
C words together in section 1 (2) suggests that they are not and as
the statute refers back to the common law and the earlier cases
refer to occupation and control as being different, the statute must
have meant to import some distinction.
Salmond on Torts, 14th ed. (1965), p. 372, defines " occupier "
as the person " who has the immediate supervision and control and
D the power of permitting or prohibiting the entry of other persons."
The definition is not exhaustive and does not distinguish between
possession and control, which are clearly not synonymous. [Refer-
ence was made to Reed v. Cattermole13 and Tennant v. Smith.14]
Hartwell v. Grayson, Rollo and Clover Docks Ltd}5 indicates
that occupation need not be exclusive and adopts the passage
E from Lord Wright in Glasgow Corporation V. Muir.™ The cases
show that where the occupier is on the spot he is in control but a
person may be in control who is not physically there. If Diplock
L.J.17 was right in saying that the Richardsons had an exclusive
licence to live upstairs they had the same sort of licence as the
plaintiffs in Greene v. Chelsea Borough Council.1* The summer
visitors must be there as licensees (visitors under the Act of 1957)
of Lacons, if they are there with Lacons' permission. If not, they
are trespassers.
[LORD MORRIS OF BORTH-Y-GEST. What if Richardson put
,, e (1861) 10 C.B.N.S. 227. « [1892] A.C. 150; 8 T.L.R. 434,

u
' Ibid. 232 et seq. H.L.(Sc).
s [1965] A.C. 609; [1965] 2 « [1947] K.B. 901, 913, C.A.
W.L.R. 657; [1965] 1 All E.R. 730, " [1943] A.C. 448, 462-463; 59
H.L.(Sc). T.L.R. 226; [1943] 2 All E.R. 44,
» [1965] A.C. 609, 626. H.L.
17
i° Ibid. 628-629. [1966] 1 Q.B. 335, 371; [1965]
11
(1854) 4 E. & B. 347. 3 W.L.R.
18
142.
12 (1865) L.R. 1 Q.B. 72. [1954] 2 Q.B. 127, 135, 136;
" [1937] 1 K.B. 613; 53 T.L.R. [1954] 3 W.L.R. 12; [1954] 2 All
369; [1937] 1 All E.R. 541, C.A. E.R. 318, C.A.
H. L. (E.) down highly polished lino with a mat on top and someone slipped A
i%6 on the mat?]
Wheat Lacons would owe a duty. Whether they would be liable
E Lacon would be another question. The Act does not refer to invitors or
& Co. Ltd. licensors but to persons in possession or control of premises and
the invitation or permission given by the person in possession or
control. [Reference was made to Hawkins v. Coulsdon and B
Purley U.D.C.™]
Where the person who has possession in law, i.e., Lacons, has
reserved to himself control in a material matter, i.e., the structural
condition and repairs, that is a degree of control which places on
that person the common duty of care under the Occupiers' Liability
Act, 1957: see Nicholls v. Lyons,20 in which the conclusion, G
although there was a difference of opinion on the facts, was that
Greene's test 21 was the right one.
Dual occupation is possible but would only arise if Richardson,
instead of being in occupation as a servant, was in some circum-
stances an occupier under the Act: see Fisher v. C.H.T. Ltd.,22 in
which Edmund Davies J. applies Hills {Patents) Ltd. v. University D
College Hospital Board of Governors.2*
John Hayman following. There are two circumstances in
which the owner is the occupier under the Act of 1957 when he is
not in de facto possession, first, where the de facto possessor is
the owner's servant or agent and is occupying or in possession on
his behalf; and, secondly, where the owner retains control of the B
material part of the premises if the servant or agent is not in occu-
pation on his behalf. It is submitted that Lacons came into the
first category, but if not they must come in the second.
W. H. Griffiths Q.C. and K. G. Jupp for the respondents, the
defendants. The following matters are put forward for considera-
tion: (1) causation and whether the plaintiff discharged the F
burden of proving that the absence of the handrail on the last
three steps caused the accident; (2) the proper test to be applied
to determine whether a person owes the duty of an occupier within
the meaning of the Occupiers' Liability Act, 1957; (3) applying
such a test, whether Lacons were occupiers within the meaning of
the Act of 1957; (4) if so, what duty they owed to the deceased; G
(5) whether they were in breach of such a duty; (6) whether such a
breach was a cause of his death; and (7) contributory negligence.
" [1954] 1 Q.B. 319; [1954] 2 22 [1965] 1 W.L.R. 1093; [1965]
W.L.R. 122; [1954] 1 All E.R. 97, 2 All E.R. 601.
C.A. 23 [1956] 1 Q.B. 90; [1955] 3
20 [1955] N.Z.L.R. 1097. W.L.R. 523; [1955] 3 All E.R. 365, .
2i [1954] 2 Q.B. 127. C.A.
A On causation, there was virtually no dispute as to the primary H. L. (E.)

facts found by the judge. The dispute only arises on the secondary 1966
facts or the inferences to be drawn from the primary facts. An wheat
appellate court is in as good a position as the judge at first instance E ^ ^
to draw the inferences from the facts: Benmax v. Austin Motor & Co. Ltd.
Co. Ltd.2* The indications are that the Court of Appeal would
B have found in the defendants' favour, had they not felt inhibited
by Winn J.'s findings. It is unlikely that the deceased fell from the
fourth step because he would have put out his hands to save him-
self, but even if he did not it would be difficult to fall on his head
from only two feet above the ground. It is more likely that he fell
from higher up the staircase or that, having reached the fourth stair,
C he decided to turn back and, pivoting round, fell backwards.
It is submitted that the occupier under the Act of 1957 is that
person who, in relation to the state of the premises, was so in
command of the situation that brought about the injury that he
ought in law to bear the responsibility for the damage. It is a test
based upon control. [Reference was made to Pegler v. Craven 25
D and Aldrich v. Henry Boyer Ltd.26]
Little can be gained from a study of the Act of 1957, which was
passed to eliminate the distinction between licensee and invitee and
the rule in Cavalier v. Pope,27 and did not deal with the meaning
of occupier which remained the same as it had always done at
common law. The common law has always looked for control and
E the word " occupier " is the name-tag which has emerged. In most
cases the occupier is in control, but there may be cases where one
person is in occupation and another in control. No assistance is to
be gained from rating or revenue cases. In Reed v. Cattermole28
Lord Wright M.R. does indicate that in considering the occupier
for revenue purposes he is considering the sole occupier because in
F revenue cases one is trying to fix thefinancialburden on one person.
Lord Wright M.R.29 refers with approval to a citation of principle
by Tindal C.J. in Dobson V. Jones,*0 a case of non-enfranchise-
ment. The difficulties of applying a rating or revenue test are
apparent when one considers that in those cases the purpose is to
find a single occupier. Another difficulty is that even if Lacons
had not reserved the right to go in to do repairs and Richardson
" [1955] A.C. 370, 376; [1955] 3 « [1906] A.C. 428; 22 TJL.R.
W.L.R. 418; [1955] 1 All E.R. 326, 648, H.L.(E.).
28
H.L.(E.). [1937] 1 K.B. 613, 620.
2= [1952] 2 Q.B. 69. ™ Ibid. 624.
30
*• Unreported, January 15, 1960, (1844)5 Man. &G. 112,120.
C.A. Bar Library Transcript No.
14 of 1960.
AC. 1966. 36
H. L. (E.) had been responsible for the internal structure, Lacons would still A
1966 have been the occupiers for the purpose of the rating test.
Wheat ^ i s s a id that Lacons are in occupation by virtue of their ser-
E v- vants and therefore are responsible, but common-sense revolts at
& Co. Ltd. the notion that Lacons should be responsible for the Richardsons'
furniture, their highly polished floors or their failure to put on a
light when their guests arrive. Clearly one can have a case where B
a master is in occupation by his servant, and.therefore any breach
of occupiers' duty by the servant is a breach by the master, but that
is not the present case. If one applies the test of control, the whole
situation is simplified. [Reference was made to Canter v. / .
Gardner (J.) & Co. Ltd.31; Duncan v. Cammell Laird & Co. Ltd.32;
Prenton v. General Steam Navigation Co. Ltd.33; Hartwell v. C
Grayson Rollo and Clover Docks Ltd}4 Hawkins V. Coulsdon
and Parley U.D.C.35; Greene v. Chelsea Borough Council36; Creed
v. McGeoch & Sons Ltd."; Fisher v. C.H.T. Ltd.38; Kearney v.
Eric Waller Ltd.3" and Humphreys v. Dreamland (Margate) Ltd.i0]
Putting aside the rating cases, the current running through all the
cases is the concept of control. If that is right it would provide the D
proper answer to cases of occupiers' liability. Both Lacons and
Richardsons are in occupation of the ground floor. The control of
the staircase and the first floor is in the Richardsons. Had the
staircase been an internal one with access from the public rooms it
might have been difficult to draw the line.
Prima facie Lacons divested themselves of control of the E
premises. They came back into control of the ground floor because
Richardson is in occupation there as their servant and manager.
Even if the service agreement draws no distinction between the
various parts of the premises one must look at the common-sense
position and distinguish between the activities carried on by
Richardson on the ground floor on behalf of Lacons, and the p
activities carried on by Richardson upstairs in which Lacons had
no interest at all.
Assuming that the principle underlying occupiers' liability is
the concept of control, and applying it to the facts, the person in
control of the staircase qua the deceased was undoubtedly Mrs.
Richardson; it was she who invited the guests for her own profit.
« [1940] 1 All E.R. 325; 56 " [1955] 1 W.L.R. 1005, 1008;

T.L.R. 305. [1955] 3 All E.R. 123.
3
32 [1943] 2 All E.R. 621, 627. « [1965] 1 W.L.R. 1093.
33 (1944) 77 L1.L.R. 174. ™ [19661 2 W.L.R. 208; [1965] 3
s^ [1947] K.B. 901, 915. All E.R. 352.
40
3» [1954] 1 Q.B. 319, 338. (1930) 100 L.J.K.B. 137; 144
so [1954] 2 Q.B. 127, 138. L.T. 529, H.L.
A.G AND PRIVY COUNCIL 563
A She was complete master in relation to the staircase because she H- L- (E->
could forbid its use and decide whether the light should be left on 1966
or not. The only contrary indication is that Lacons reserved the wheat
right to go in to do repairs, and that, it is submitted, is not sufficient E L^con
in view of all the facts, to give Lacons control. & Co. Ltd.
In the case of landlord and tenant, the landlord does not owe
B a duty of care where he has reserved the right to enter and do
repairs if necessary. It only arises where he has undertaken the
more onerous obligation to maintain and repair the premises: see
s. 4 (1) and (7) of the Act of 1957. Greene's case41 is quite dif-
ferent because the local authority had been called in to look at
the ceiling and said it was all right. In Hawkins' case42 the accident
0 occurred on the step outside the premises over which the local
authority would in any event have retained control.
Assuming, contrary to the previous submissions, that Lacons
were in occupation under the Act of 1957, the only duty they could
owe would be in relation to structural defects and not in regard
to the Richardsons' position as hosts to the guests they invited.
D Accordingly Lacons' duty could only relate to the handrail.
Section 2 (5) may be relevant since the deceased must have willingly
accepted the risks entailed in walking down the dark stairs, but the
respondents really rely on subsection (3). The handrail has been
referred to as a trap but there is a danger of confusing foresight
with hindsight. This is clearly the latter. The test is not what an
B astute lawyer can think up as a remotely foreseeable possibility,
but whether there is a real likelihood of injury.
If contributory negligence arises at all in the present circum-
stances, the accident was due wholly to the deceased's fault in
descending the stairs in the prevailing circumstances.
K. G. Jupp following. A landlord can divest himself of occu-
F pation of part of premises. There is nothing abhorrent in Lacons
divesting themselves of the occupation of the whole of the premi-
ses, but because the licensed part was managed by their servant on
their behalf, anyone injured in the licensed part could look to
Lacons. However, if friends of the Richardsons, calling after
licensing hours, injured themselves on the ground floor, Lacons
G would not be responsible.
Croom-Johnson Q.C. in reply. If one could not see where the
handrail ended, it could be a trap. The deceased could have
fallen from anywhere, but if one finds a man lying near a trap at
dusk when the danger was not potential but actual and the injury
41 42
[1954] 2 Q.B. 127. [1954] 1 Q.B. 319.
H. L. (E.) w a s one which might reasonably be brought about because of that A

1966 danger, it is a proper inference that the danger caused the injuries
Wheat especially in the absence of any other explanation.
E Lacoo ^ n e r a t m § t e s t i s relevant, although it is not suggested that the
& Co. Ltd. occupier for the purposes of the Act of 1957 is the rateable
occupier. Such a test would clearly be useless in the case of build-
ing contractors with transient control. But where property is B
owned by a limited company, who can only control vicariously
through a servant or agent, the relevant tests under the Act of 1957
are the same as those to see whether a person is a service occupant
in a rating case. The argument based on section 4 of the Act of
1957 makes a false point. If Greene's case is is rightly decided, it
would come under subsection (6) and not subsection (4) of section U
4. As long as a person has control, that is sufficient to render him
liable as the occupier. One does not have to foresee the precise
accident, one only has to foresee that the handrail may be a danger
in the course of its use. The question of contributory negligence is
really a matter of first impression. Reliance is placed on Hawkins'
case **; everything looks all right on the top and it is not until you D
get to the bottom that the trap is sprung.
Their Lordships took time for consideration.

Feb. 15, 1966. VISCOUNT DILHORNE. My Lords, on September
4, 1958, at about 9 p.m., Mr. Wheat, the husband of the appellant, jg
fell while going down the back stairs of a public-house called " The
Golfers' Arms " at Great Yarmouth. He was found lying on the
floor of the vestibule at the bottom of the stairs and shortly there-
after he died. It was a concrete floor covered with linoleum. He
had fractured his skull. The surgeon who gave evidence at the
inquest said that there was a bruise on the left side of his head p
three-quarters of the way up the skull which ran from the ear to
the base of the skull and that the fracture which underlay this
bruise also extended to the base of the skull. He said that there
were no other signs of injury to the body.
Mr. Wheat, who was 42 years of age, must therefore have
fallen in such a way as to land heavily on the left side of his head, Q
so heavily as to cause this fracture of his skull. In the surgeon's
opinion if Mr. Wheat had fallen heavily enough, the fall could
have been from ground level and he said that the injury was
consistent with his having fallen down two or three or even a
flight of stairs.
« [1954] 2 Q.B. 127. " [1954] 1 Q.B. 319.
A On August 19, 1960, Mrs. Wheat, his widow, commenced an H. L. (E.)

action against E. Lacon & Co. Ltd., the respondents to this appeal, 1966
and the owners of the public-house; Mr. Richardson, the manager wheat
of it, and Mrs. Richardson his wife. She claimed as widow of Mr. E Lacon
Wheat and as his administratrix under the Fatal Accidents Acts, & Co- Ltd.
1846-1908, and the Law Reform (Miscellaneous Provisions) Act, VISCOUNT
J3 1934, damages in respect of her husband's death by reason of the DlLH0RNB
negligence and breach of duty of the defendants.
The action was heard by Winn J. at Norwich Assizes on
October 6 and 7, 1964, and he gave judgment for the defendants.
Mrs. Wheat appealed to the Court of Appeal against the finding in
the respondents' favour. She did not appeal against the decision in
0 favour of the other two defendants. The Court of Appeal* by a
majority (Harman and Diplock L.JJ., Sellers L.J. dissenting)
dismissed the appeal; and now Mrs. Wheat appeals to your
Lordships.
Mr. and Mrs. Wheat had gone with their daughter and Mrs.
Wheat's parents to stay at the public-house for a week's holiday
D on August 30, 1958. Mrs. Wheat had agreed terms for board and
lodging with Mrs. Richardson, who was allowed by the
respondents to take summer visitors.
On the ground floor of the public-house, which was on a
corner, there were the usual bars, lounges, etc. On the first floor
there were a kitchen and larder, a living-room and a sitting-room,
E a bathroom and w.c. and six bedrooms. A door with a glass panel
and marked "Private" led from the street into an entrance hall
which gave access to a staircase leading to the first floor. That
floor was in the shape of a " U " and these stairs, the front stairs,
were in the right-handed upper part of the " U." On the left-hand
upper part of the " U " were the back stairs. They led from the
F first floor to the vestibule from which a door gave access to a
yard at the back of the public-house. From this yard it was
possible, by going through the beer store and another yard, to get
to the service area behind the bars. There was no direct access
from the ground floor to thefirstfloor.
On the evening of September 4, 1958, Mr. and Mrs. Wheat had
G been out. They returned about 9 p.m., and went to the first floor.
Mr. Wheat then went to get some soft drinks for himself and his
family. He had previously said that he thought that it would be
much simpler to get to the bars down the back stairs. If he went
down the front stairs, he would have to go out into the street and
then into a bar from the street.
1
[1966] 1 Q.B. 335; [1965] 3 W.L.R. 142; [1965] 2 All E.R. 700, C.A.
H. L. (E.) A little later he was found at the bottom of the back stairs. A
1966 They were steep and narrow. The slope was only a little less than
Wheat the maximum recommended. The width of each tread was nine
E. Lacon inches. There were 14 stairs and on each side of the staircase
& Co. Ltd. there was, as one descended, a wall. The distance between the two
VISCOUNT walls was 2 ft. 9 in.: these walls did not go to the bottom of the
LH0RNE
staircase. The vestibule appears to have been built onto the outside B
of the main wall of the building and the last two steps of the
staircase were in the vestibule. That was wider than the distance
between the two walls. The wall, on the left side of the vestibule
as one descends, is set back a few inches from the wall which goes
along the rest of the staircase. The wall on the right side is set
back more. The vestibule is quite small, the distance from the 0
bottom step to the door, which was opposite the staircase and
which led into the yard, being 4 ft. 3in.
On the left side of the staircase where it was only 2 ft. 9 in. in
width a grooved handrail was fixed. This handrail ended imme-
diately above the third step from the bottom where the staircase
entered the vestibule. There was no knob at the end of it. D
There was nothing to indicate the place where Mr. Wheat's
fall began. An inspector of police who examined the staircase
the next morning could find no indication of anything which had
been struck by Mr. Wheat's head.
In the landing which led to the top of the staircase there were
two electric lights suspended from the ceiling. One, which was E
some distance away from the top of the stairs, was by the bath-
room. The other was at the top of the stairs. Unfortunately at
the time Mr. Wheat met with his accident, the bulb was missing
from this light.
In the main wall of the building opposite the top of the
staircase there was a window, the bottom of which was slightly F
above the level of the floor of the landing. The top part of the
door leading from the vestibule to the yard was of glass. The only
illumination of the staircase when Mr. Wheat went down it came
from the light by the bathroom and such daylight as there was at
that time coming through the window and the glass panel in the
door. No light could have come through the window on to the G-
bottom stairs and to the vestibule.
Mrs. Wheat said that it was getting quite dark when they
returned to the public-house. Mr. Hunt, an expert called for the
plaintiff, said that when he had gone down the stairs between
9.30 and 10 p.m., on the night of October 5, 1964, with the light
at the top of the stairs turned off, he could see the first few treads
A dimly, but that at the bottom it was quite dark, so dark that he H - L - CE.)
could not see the handrail at the bottom. A Mr. Ginn, a builder's 1966
foreman, said that he had been in the bar on the evening of wheat
September 4, 1958, when Mr. Richardson called him; that they E ^tCon
had gone to the door of the vestibule, that they could only open & Co- Ltd.
that door a little and that with the aid of a match he had seen VISCOUNT
DlLH0RNB
B Mr. Wheat on the floor of the vestibule. He had then gone round
and up the front stairs to the first floor and when he looked down
the stairs from the landing, the light at the top of the stairs was
out but he was able to see Mr. Wheat and Mrs. Wheat's father at .
the bottom of the stairs and he could see the staircase, the steps
and the handrail.
(3 N o witness was prepared to say that the staircase itself was
dangerous. T h e only unusual feature was the ending of the
handrail immediately above the edge of the third stair so that
there was no handrail alongside the bottom two stairs. M r . Hunt
thought that this constituted a danger in that a person's hand
could slip off the end of the handrail.
D Winn J. thought that it was a reasonable and probable con-
clusion that Mr. Wheat fell from the second, third or fourth steps
from the bottom " and that he was directly caused so to fall by
the fact that his hand, which " (the judge found) " he had been
running down along the rail, came to the end of it and he was no
longer supported by any rail." I n his judgment it was not necessary
E to infer that he was leaning heavily upon the rail and fell because
the rail was no longer there to support him. I n his view he s a i d :
" it is far more likely that he interpreted the cessation of the
rail by the fact that his fingers were no longer running along
it. . . . I think what probably happened is that he then
stepped out with the confidence that his foot was about to
p come upon the floor level, thinking he had come to the
bottom of the stairs, and as a result fell. . . ."
He held that there were two concurrent causes of the fall, the
fact that the handrail did not extend to the foot of the stairs, and
" the absence of any light."
Sellers L.J. found it most difficult to decide how the deceased
Q came to fall. He said 2 :
" People of all ages and differing types do fall down stairs
and elsewhere on occasions in circumstances where there is
nothing to account for the fall except a stumble which may
befall anyone."
He went on to say that if a jury had found as the judge found, he
2
[1966] 1 Q.B. 335, 356.
H. L. (E.) doubted whether the finding could have been disturbed and that A
1966 he was not prepared to say that the judge's conclusion was wrong.
Wheat Harman L.J. 8 said that he felt the gravest doubt about the
E Laoon judge's finding, that it was possible that Mr. Wheat had fallen in
& Co. Ltd. the way the judge held he had, but that he hesitated to find it more
VISCOUNT probable than alternatives. In view of his opinion on the rest of
DILHORNB t h e case _ h e d i d n Q t r e s o l v e t h e d o u b t h e f e i t B
Diplock L.J. said that upon a mere perusal of the transcript
he could not be confident that the judge's reconstruction of the
accident was over the borderline *
" twixt possibility and probability. But to have heard and
seen the witnesses might well have made a difference and I
am not prepared to say that the judge, who did hear them and C
see them, was not entitled to make the finding of fact that
he did."
There was no conflict of evidence as to the staircase. There
was no evidence as to the cause of Mr. Wheat's fall. The judge's
conclusion was an inference he drew from the evidence. In these
circumstances I do not see that the fact that the judge heard and D
saw the witnesses placed him in a better position than the Court
of Appeal and your Lordships to decide how the accident
occurred.
In Benmax v. Austin Motor Co. Ltd? Viscount Simonds said:
" Fifty years ago, in Montgomerie & Co. Ltd. v. Wallace- -g
James,6 Lord Halsbury L.C. said: ' But where no question
arises as to truthfulness, and where the question is as to the
proper inferences to be drawn from truthful evidence, then
the original tribunal is in no better position to decide than
the judges of an appellate court.' And in Mersey Docks and
Harbour Board v. Procter1 Lord Cave L.C. said: ' T h e
procedure on an appeal from a judge sitting without a jury
is not governed by the rules applicable to a motion for a new
trial after a verdict of a jury. In such a case it is the duty of
the Court of Appeal to make up its own mind, not dis-
regarding the judgment appealed from and giving special
weight to that judgment in cases where the credibility of
witnesses comes into question, but with full liberty to draw
its own inference from the facts proved or admitted, and to
decide accordingly.' It appears to me that these statements Q
are consonant with the Rules of the Supreme Court, which
prescribe that ' all appeals to the Court of Appeal shall be
8 6
[1966] 1 Q.B. 335, 361. [1904] A.C. 73, 75, H.L.
4
Ibid. 365. ' [1923] A.C. 253, 258-259; 39
»' [1955] A.C. 370, 372; [1955] 2 T.L.R. 275, H.L.(E.).
W.L.R. 418; [1955] 1 All E.R. 326,
H.L.(E.).
A by way of rehearing' (R.S.C., Ord. 58, r. 1), and that ' the H. L. (E.)
Court of Appeal shall have power to draw inferences of fact 1966
and to give any judgment and make any order which ought to — —
ea
have been made' (r. 4). This does not mean that an appellate v
court should lightly differ from the finding of a trial judge on E. Lacon
a question of fact, and I would say that it would be difficult & C o - Ltd -
for it to do so where the finding turned solely on the credibility VISCOUNT
B of a witness." DILHORNE
He went on to say 8 :
" In a case like that under appeal where, so far as I can
see, there can be no dispute about any relevant specific fact,
much less any dispute arising out of the credibility of wit-
nesses, but the sole question is whether the proper inference
C from those facts is that the patent in suit disclosed an
inventive step, I do not hesitate to say that an appellate
court should form an independent opinion, though it will
naturally attach importance to the judgment of the trial
judge."
Lord Reid in the same case said":
D " But in cases where there is no question of the credibility
or reliability of any witness, and in cases where the point in
dispute is the proper inference to be drawn from proved facts,
an appeal court is generally in as good a position to evaluate
the evidence as the trial judge, and ought not to shrink from
that task, though it ought, of course, to give weight to his
opinion."
® There being in this case no dispute as to the primary facts and
no direct evidence as to the cause of Mr. Wheat's fall it is, I think,
the duty of your Lordships not to shrink from the task of evaluating
the evidence and to decide what inference, if any, can properly be
drawn from the undisputed evidence.
I cannot myself see that it is probable that Mr. Wheat's fall
occurred in the way the judge held it did. It is a possibility but
in fact the termination of the handrail before the bottom step may
have had nothing to do with the accident. If he had fallen forward,
it is to be expected that he would instinctively have put his hands
out to save himself. There was no sign of injury to his hands.
If he had fallen from the second, third or fourth step from the
bottom after stepping out with confidence thinking that he had
reached the floor, one would have expected him to have hit the
door. There was no mark on the door. He landed in the vestibule
on the left side of his head, almost as if he had dived from the
stairs. There was no injury to the front of his head.
9
s [1955] A.C. 370, 374. Ibid. 376.
H. L. (E.) It is, I think, equally possible that if he had been relying on A

1966 the handrail and putting his weight upon it, his hand slipping off
Wheat the handrail caused him to lose his balance and fall.
E. Lacon ^ r - Griffiths, for the respondents, suggested that at some stage
& Co. Ltd. of his descent Mr. Wheat had decided to turn back, perhaps
VISCOUNT realising that the staircase did not lead to the bars, perhaps
DILHORNE because the bottom of the staircase was in darkness, and that in B
the course of turning to his right on the narrow treads, he had lost
his balance and fallen. If this had happened, he contended that it
was consistent with the injury on the left side of the deceased's
head. The surgeon who gave evidence at the inquest said that
from Mr. Wheat's injuries " one would suppose that he fell side-
ways, again it depends on the relation of his head to his body C
as he fell."
I think that it is, if anything, more likely that Mr. Wheat fell
in the way suggested by Mr. Griffiths than in the way held by the
judge, but I cannot on the evidence reach the conclusion that it
was probable that he did so. In my opinion, the evidence was not
sufficient to enable any deduction to be made as to the probable D
cause of his fall.
The judge held that Mr. Wheat was not guilty of contributory
negligence. He said that he had felt very serious doubts about this.
Sellers L.J. thought that he clearly was. So did Harman L.J.
Diplock L.J. did not express an opinion on the matter, though
certain of the observations he made are consistent with his E
holding the same opinion.
If the accident happened as the judge held it did, Mr. Wheat
was, in my view, guilty of a very high degree of contributory
negligence. He was going down a staircase which he had not
apparently used before. It was clearly badly lit, though it is not
possible to determine how dark it was with any degree of F
precision. It was clearly very much darker at the bottom. It was
incumbent on him to use very great care for his own safety. If
he " stepped out with the confidence that his foot was about to come
upon the floor level" when he got to the end of the handrail, he
was in my opinion very negligent. This finding assumes that he
could not have seen the bottom steps. If he could not see them or G
the floor, it was incumbent on him to use the greatest caution and
not to step out with confidence.
The appellant claimed that the respondents were occupiers of
the public-house and so owed to Mr. Wheat as a visitor to the
public-house the duty prescribed by the Occupiers' Liability Act,
1957.
A Winn J. held that the respondents and the Richardsons were H. L. (E.)
occupiers of the premises and ruled that the respondents were 1966
occupiers of the material part of the premises. Wheat
Sellers L.J. held that the respondents were in occupation of the E ^C0B
whole building. Harman L.J. and Diplock L.J., on the other hand, & Co. Ltd.
held that Mr. Richardson, the manager, was in occupation of the VISCOUNT
PlLH0RNB
B private part of the premises which included the back stairs and
that the respondents were not in control of that part.
By an agreement made between the respondents and Mr.
Richardson on April 3, 1951, the respondents agreed to employ
Mr. Richardson and he agreed to enter their service as manager
of " The Golfers' Arms " at a weekly salary. He was required to
C sell ales and spirits, etc., for the sole benefit of his employers and
to devote the whole of his time (except during holidays) to
managing the business of a spirit, wine and beer seller. He was
required to obey all lawful commands and directions of his
employers in relation to the business.
Clause 5 of the agreement provided that he should permit his
D employers, their servants or agents
" to enter into and upon the said premises for the purpose of
viewing the condition and state of repair thereof or testing
the strength of spirits or gauging or inspecting the stock of
beer, porter, ale, stout and other malt liquors wines or spirits
in or upon the same."
^ Clause 6 provided :
" The manager shall not part with the possession of the
said premises or any part thereof without the consent of the
employers or their duly authorised agents first obtained."
Clause 7 reads as follows :
F " The manager shall and may so long as he shall continue
in the service of the employers occupy the same public-house
without paying any rent, rates, or taxes for the same but shall
quit and deliver up peaceable and quiet possession of the
same immediately upon ceasing to be employed by the
employers or at any time on receiving 28 days' notice in
writing. . . . Such occupation shall not nor shall anything
(} herein contained create any tenancy as between the parties
hereto nor give the manager any estate or interest in the
premises."
The respondents, being a limited company, can only occupy
premises by their servants. By this agreement, did they divest
themselves of the occupation of the public-house or any part of it?
In my opinion, the answer is in the negative. The agreement was
H. L. (E.) for the occupation of the whole of the public-house by their A

1966 servant, Mr. Richardson. It was not contended on their behalf
Wheat that they had divested themselves of occupation and control of
E Laoon ^ e g r o u n d floor of the premises. There it was agreed that they
& Co. Ltd. were in occupation and control.
VISCOUNT The agreement does not distinguish between the first floor
DILHORNE ( w hich I treat as including both staircases and entrances leading B
to them) and the ground floor. Much reliance was placed for the
respondents on clauses 5, 6 and 7 of the agreement, These clauses,
which were perhaps more apt for a tenancy agreement than for
one dealing with the employment of and occupation by a manager,
did not distinguish between one part of the premises and another.
They applied to all the premises. It might have provided that 0
Mr. Richardson should occupy the ground floor as their servant
and that he should occupy the first floor on his own account. It
did not do so and I do not think that it is right to infer from the
facts that Mr. and Mrs. Richardson had their living accommoda-
tion on the first floor, that Mrs. Richardson was allowed by the
respondents to have summer visitors and that the street entrance ^
leading to the front staircase to the first floor was marked
"Private," that the agreement operated to divest the respondents
of occupation and control of the first floor while leaving them
through their servant Mr. Richardson in control and occupation
of the ground floor. g
In Reed v. Cattermole,10 a decision on whether the amount of
the Schedule A tax and rates paid on his behalf by the Church
on a manse occupied by a Methodist minister formed part of his
emoluments and so were liable to tax under Schedule E, Lord
Wright M.R. 11 cited with approval the statement of principle by
Tindal C J . in Dobson v. Jones,12 where, referring to an earlier and ^
similar case, Hughes v. Chatham Overseers™ he s a i d " :
" We drew the distinction between those cases where
officers or servants in the employment of government are
permitted to occupy a house belonging to the government as
part remuneration for the services to be performed, and those
in which the places of residence are selected by the govern-
ment, and the officers or servants are required to occupy them,
with a view to the more efficient performance of the duties
or services imposed upon them."
12
™ [1937] 1 K.B. 613; 53 T.L.R. (1844) 5 Man. & Gr. 112, 120.
369; [1937] 1 All E.R. 541, C.A. " (1843) 5 Man. & Gr. 54.
11
[1937] 1 K.B. 613, 624. " 5 Man. & Gr. 112, 120.
A In Glasgow Corporation v. Johnstone," where it was held that H. L. (E.)

a house occupied by a church officer was occupied by a charity 1966
and so not liable for full rates, Lord Reid 1 6 cited this passage, wheat
and in the same case Lord Hodson said " : ^ v.
E. Lacon
& Ltd
" The distinction is usually shortly stated in this way: if ^ -
the servant is given the privilege of residing in the house of VISCOUNT
B the master as part of his emoluments the occupation is that DILHORNE
of the servant. He is treated for occupation purposes as being
in the same position as that of a tenant. If, on the other hand,
the servant is genuinely obliged by his master for the purposes
of his master's business or if it is necessary for the servant
to reside in the house for the performance of his services the
occupation will be that of the master."
^ In Tennant v. Smith18 it was held that a bank manager was
not taxable on any benefit he received from having a rent-free
residence in which he was bound to reside. Lord Macnaghten
said " :
" He is not entitled to sublet the bank house or to use it for
other than bank business, and in the event of his ceasing to
^ hold his office he is under obligation to quit the premises
forthwith. Property, therefore, in the house he has none, of
any sort or kind. He has the privilege of residing there. But
his occupation is that of a servant...."
Although it is possible to draw distinctions between occupation
for the purposes of taxation and rating and occupation for the
E purposes of the Occupiers' Liability Act, 1957, in all these cases
the same question has to be determined, namely, who was the
occupier at the relevant time. In some cases occupation of a
temporary character, e.g., in relation to a contractor's liability under
the Occupiers' Liability Act, 1957, will suffice. In others it will
not. In my view, the principle formulated by Tindal C.J.20 and
F approved by Lord Wright,21 Lord Reid 22 and Lord Hodson 28 is
a useful test for determining whether the occupation is in the
capacity of a servant and so of the master or in the servant on
his own account. Mr. Richardson was not given the privilege of
residing in the public-house as part of his emoluments. He was
obliged to live there for the purpose of his master's business and
G for the performance of his services. To adapt the words of Lord
" [1965] A.C. 609; [1965] 2 20 Dobson v. Jones, 5 Man. &
W.L.R. 657; [1965] 1 All E.R. 730, Gr. 112, 120.
21
H.L.(Sc.). Reed v. Cattermole [1937] 1
is [1965] A.C. 609, 618. K.B. 613, 624.
17 22
Ibid. 626. Glasgow Corporation v. John-
18 [1892] A.C. 150; 8 T.L.R. 434, stone
2S
[1965] A.C. 609, 618.
H.L.(Sc.). Ibid. 626.
i» [1892] A.C. 150, 162.
H. L. (E.) Macnaghten,24 he was not entitled to sublet the first floor or to use A
1966 it for any purpose other than one approved by the respondents.
Wheat In the event of his ceasing to hold office, he was under obligation
E L c n t o ^ u ^ t n e P r e i m s e s forthwith. Property in the house he had none,
& Co. Ltd. of any sort or kind. He had the privilege of residing there. But
VISCOUNT his occupation was that of a servant.
DimoRNE j therefore have come to the conclusion that Winn J. and B
Sellers L.J. were right in holding that the respondents were at the
time occupiers of the material part of the premises.
Your Lordships' attention was drawn to the minutes of a
meeting the respondents had with their managers on April 23,
1954. Under the heading " Summer Letting " appears the sentence
" Authority for summer letting was a generous privilege granted 0
by the company." Since the only accommodation for summer
visitors was on the first floor, this minute supports the view that
even if the respondents were not occupiers of the first floor through
their servant, they had at least control over it.
In Salmond on Torts, 10th ed. (1945) at p. 469,25 the following
passage appears: D
" In dealing with dangerous premises it is necessary to
distinguish between the responsibilities of the owner and those
of the occupier or possessor. Generally speaking, liability in
such cases is based on occupancy or control, not on ownership.
The person responsible for the condition of the premises is
he who is in actual possession of them for the time being, c,
whether he is the owner or not. For it is he who has the
immediate supervision and control and the power of permitting
or prohibiting the entry of other persons."
This passage was cited with approval by Roxburgh J. in
Hartwell v. Grayson, Rollo and Clover Docks Ltd.2" and by
Diplock L.J.27 in this case. „
While it is clearly right that, generally speaking, liability for
dangerous premises is based on occupancy or control, not on
ownership, it does not necessarily follow that the person in actual
occupation of the premises is responsible for their condition.
A servant in actual possession of premises may not be respon-
sible for their condition and in this case the agreement with Mr. „
Richardson did not place on him any responsibility for the condi-
tion of the premises.
I do not myself regard this passage from Salmond as assisting
20
" Tennant v. Smith [1892] A.C. [1947] K.B. 901, 917, C.A.
27
150,162. [1966] 1 Q.B; 335, 368.
25 See also 14th ed. (1965) at p.
371. . . .
A in determining whether, in the circumstances of a particular case, H. L. (E.)

the occupation by a servant is occupation on behalf of his employers 1966
or on his own account. Wheat
Having reached the conclusion that the occupation by Mr. E .y-
Richardson of the whole of the public-house was occupation on & Co. Ltd.
behalf of his employers and not on his own account, it is not, I VISCOUNT
B think, necessary to consider whether, if Mr. Richardson occupied DILHORNE
the first floor on his own account, the respondents still retained
sufficient control to render them responsible; nor is it necessary
to determine whether Mr. and Mrs. Richardson were also to be
regarded as owing a duty under the Occupiers' Liability Act, 1957,
to their visitors. Mr. and Mrs. Richardson are not parties to this
C appeal and, without hearing argument directed to this issue, I do
not propose to express any opinion on the point. If they owed any
such duty, it may well be that it differed in extent and character
from that owed by the respondents;
The common duty of care imposed by section 2 of the Occu-
piers' Liability Act on the occupier of premises in relation to all
D his visitors was not in this case.restricted in any way. The respon-
dents were under a duty " t o take such care as in all the circum-
stances of the case is reasonable to see that the visitor will be
reasonably safe in using the premises for the purposes for which
he is invited or permitted by the occupier to be there " (Occupiers'
Liability Act, 1957, s. 2 (2)).
ifi The persons who are to be treated as an occupier and his
visitors are the same as the persons who would at common law
be treated as an occupier and as his invitees or licensees (ibid,
s. 2(2)).
Winn J. held that persons coming to the first-floor bedrooms
and any part of the premises from which they were not excluded
F and which they might reasonably think were open to them for
their use as guests came there as persons invited by Mrs. Richard-
son with the prior authority and tolerance of the respondents. He
said that they were present on the premises as licensees of the
respondents and therefore as visitors within the meaning of the
Occupiers' Liability Act. I agree with him. The respondents
G permitted the accommodation of summer visitors on the premises.
Any person who came as a summer visitor by arrangement with
her, came upon the premises with the permission of the respondents
and so as a licensee.
Did the respondents fail to take such care as in all the circum-
stances was reasonable to see that Mr. Wheat was reasonably safe
in using the premises?
576 HOUSE OF LORDS [19661
H. L. (E.) They had built the staircase in 1938. Between then and 1958 A
1966 no accident had happened on it. Winn J. held that the steepness
Wheat °f t n e stairs was not such as of itself to make the stairs dangerous.
v. The only unusual feature was the ending of the handrail before
& Co. Ltd. the bottom of the stairs so that the last two stairs had no handrail
VISCOUNT beside them.
DILHORNE The respondents had provided a light at the top of the stairs, B
operated at the top and bottom of the staircase. The fact that the
bulb was missing at the time of the accident was no fault of theirs.
Winn J. held that its removal by whomever it was effected was a
novus actus and that there was no ground upon which to find
that Mrs. Richardson knew that the bulb was missing in time to
see it was replaced. 0
Ought, then, the respondents reasonably to have foreseen that
a visitor would use the staircase when it was dark or insufficiently
lit? And, if so, ought they to have made some further provision
with regard to it?
I think that the respondents ought to have foreseen that a visitor
might use the staircase when unlit. A visitor might not discover D
the switch to operate the light.
But I do not myself consider that this staircase if unlit was a
dangerous staircase for someone to use who was taking proper
care for his own safety. Though steep it was not dangerously
steep and it was straight.
Anyone who chose to go down it in the dark and who took E
care to see that the foot he put forward was resting on something
solid before he put his weight on it could have gone down it
perfectly safely.
I do not think that the respondents could be reasonably expec-
ted to have foreseen that Mr. Wheat when he reached the end of
the handrail would " step out with the confidence that his foot P
was about to come upon the floor level" if he could not see the
floor.
As Diplock L.J. said 2 8 : " My neighbour does not enlarge my
duty to care for his safety by neglecting it himself."
Whether the accident happened in the way Winn J. thought
probable or in some other way, in my opinion, there was no breach
of the duty on the part of the respondents to take such care as in
all the circumstances was reasonable to see that visitors were
reasonably safe in using the premises.
I would dismiss the appeal.
*• [1966] 1 Q.B. 335, 372.

A LORD DENNING. My Lords, The " Golfers' Arms " at Great H. L. (E.)
Yarmouth is owned by the brewery company, E. Lacon & Co. Ltd. 1966
The ground floor was run as a public-house by Mr. Richardson as wiieat
manager for the brewery company. The first floor was used by E /•
Mr. and Mrs. Richardson as their private dwelling. In the summer & Co. Ltd.
Mrs. Richardson took in guests for her private profit. Mr. and
B Mrs. Wheat and their family were summer guests of Mrs. Richard-
son. About 9 p.m. one evening, when it was getting dark, Mr.
Wheat fell down the back staircase in the private portion and was
killed. Winn J. held that there were two causes: (i) the handrail
was too short because it did not stretch to the foot of the stairs;
(ii) someone had taken the bulb out of the light at the top of the
C stairs.
The case raises this point of law: did the brewery company owe
any duty to Mr. Wheat to see that the handrail was safe to use or
to see that the stairs were properly lighted? That depends on
whether the brewery company was " an occupier " of the private
portion of the " Golfers' Arms," and Mr. Wheat its " visitor"
D within the Occupiers' Liability Act, 1957: for, if so, the brewery
company owed him the " common duty of care."
In order to determine this question we must have resort to the
law before the Act: for it is expressly enacted [in section 1 (2) ]
that the Act
" shall not alter the rules of the common law as to the persons
E on whom a duty is so imposed or to whom it is owed; and
accordingly . . . the persons who are to be treated as an
occupier and as his visitors are the same . . . as the persons
who would at common law be treated as an occupier and as
his invitees or licensees."
At the outset, I would say that no guidance is to be obtained
F from the use of the word " occupier " in other branches of the
law: for its meaning varies according to the subject-matter.
In the Occupiers' Liability Act, 1957, the word " occupier " is
used in the same sense as it was used in the common law cases on
occupiers' liability for dangerous premises. It was simply a con-
venient word to denote a person who had a sufficient degree of
control over premises to put him under a duty of care towards
those who came lawfully on to the premises. Those persons were
divided into two categories, invitees and licensees: and a higher
duty was owed to invitees than to licensees. But by the year 1956
the distinction between invitees and licensees had been reduced to
vanishing point. The duty of the occupier had become simply a
A.C. 1966. 37(1)
H. L. (E.) duty to take reasonable care to see that the premises were reason- A
1966 ably safe for people coming lawfully on to them: and it made no
vviieat difference whether they were invitees or licensees: see Slater v.
E Lacon â^ ^ross Co. Ltd.29 The Act of 1957 confirmed the process. It
& Co. Ltd. did away, once and for all, with invitees and licensees and classed
LORD them all as " visitors "; and it put upon the occupier the same
PENNING duty to all of them, namely, the common duty of care. This duty B
is simply a particular instance of the general duty of care which
each man owes to his " neighbour." When Lord Esher first essayed
a definition of this general duty, he used the occupiers' liability as
an instance of it: see Heaven v. Pender30; and when Lord Atkin
eventually formulated the general duty in acceptable terms, he,
too, used occupiers' liability as an illustration: see Donoghue v. C
Stevenson,"1 and particularly his reference32 to Grote v. Chester
Railway Company.™ Translating this general principle into its
particular application to dangerous premises, it becomes simply
this: wherever a person has a sufficient degree of control over
premises that he ought to realise that any failure on his part to
use care may result in injury to a person coming lawfully there, D
then he is an " occupier " and the person coming lawfully there is
his " visitor ": and the "occupier " is under a duty to his " visitor "
to use reasonable care. In order to be an " occupier " it is not
necessary for a person to have entire control over the premises.
He need not have exclusive occupation. Suffice it that he has some
degree of control. He may share the control with others. Two or E
more may be " occupiers." And whenever this happens, each is
under a duty to use care towards persons coming lawfully on to
the premises, dependent on his degree of control. If each fails in
his duty, each is liable to a visitor who is injured in consequence
of his failure, but each may have a claim to contribution from the
other. F
In Salmond on Torts, 14th ed. (1965), p. 372, it is said that an
" occupier " is " he who has the immediate supervision and control
and the power of permitting or prohibiting the entry of other
persons." This definition was adopted by Roxburgh J. in Hartwell
v. Grayson, Rollo and Clover Docks Ltd.** and by Diplock L.J. in
the present case.35 There is no doubt that a person who fulfils that G
test is an " occupier." He is the person who says " come in." But
29
[1956] 2 Q.B. 264, 269; [1956] "i [1932] A.C. 562, 580; 48 T.L.R.
3 W.L.R. 232; [1956] 2 All E.R. 494, H.L.(Sc).
625,
80
C.A. 32 [1932] A.C. 562, 586-587.
(1883) 11 Q.B.D. 503, 508-509, ™ (1848) 2 Ex. 251.
C.A. 84 [1947] K.B. 901, 917.
35
[1966] 1 Q.B. 335, 368.
A I think that test is too narrow by far. There are other people who H. L. (E.)
are "occupiers," even though they do not say "come in." If a 1966
person has any degree of control over the state of the premises it is wheat
enough. The position is best shown by examining the cases in _v-
four groups. & Co. Ltd.
First, where a landlord let premises by demise to a tenant, he J ^
B was regarded as parting with all control over them. He did not DENNING
retain any degree of control, even though he had undertaken to
repair the structure. Accordingly, he was held to be under no
duty to any person coming lawfully on to the premises, save only
to the tenant under the agreement to repair. In Cavalier v. Pope 38
it was argued that the premises were under the control of the
C landlord because of his agreement to repair: but the House of
Lords rejected that argument. That case has now been overruled
by section 4 of the Act of 1957 to the extent therein mentioned.
Secondly, where an owner let floors or flats in a building to
tenants, but did not demise the common staircase or the roof or
some other parts, he was regarded as having retained control of all
D parts not demised by him. Accordingly, he was held to be under
a duty in respect of those retained parts to all persons coming
lawfully on to the premises. So he was held liable for a defective
staircase in Miller v. Hancock37; for the gutters in the roof of
Hargroves, Aronson & Co. v. Hartopp 3S and for the private bal-
cony in Sutcliffe v. Clients Investment Co. Ltd.39 The extent of
E the duty was held to be that owed to a licensee, and not to an
invitee: see Fairman v. Perpetual Investment Building Society*";
Jacobs v. London County Council.*1 Since the Act of 1957 the
distinction between invitees and licensees has been abolished, and
the extent of the duty is now simply the common duty of care. But
the old cases still apply so as to show that the landlord is respon-
F sible for all parts not demised by him, on the ground that he is
regarded as being sufficiently in control of them to impose on him
a duty of care to all persons coming lawfully on to the premises.
Thirdly, where an owner did not let premises to a tenant but
only licensed a person to occupy them on terms which did not
amount to a demise, the owner still having the right to do repairs,
G he was regarded as being sufficiently in control of the structure
to impose on him a duty towards all persons coming lawfully on to
30
[1906] A.C. 428; 22 T.L.R. 648, ™ [1924] 2 K.B. 746, C.A.
4
H.L.(E.). ° [1923] A.C. 74; 39 T.L.R. 54,
« [1893] 2 Q.B. 177; 9 T.L.R. H.L.
512, C.A. « [1950] A.C. 361; 66 T.L.R.
38
[1905] 1 K.B. 472; 21 T.L.R. (Pt. 1) 659; [1950] 1 All E.R. 737,
226, D.C. C.A.
A.C. 1966. 37(2)
H. L. (E.) the premises. So he was held liable for a visitor who fell on the A
1966 defective step to the front door in Hawkins v. Coulsdon and Purley
Wheat U.D.C."; and to the occupier's wife for the defective ceiling which
_ v. fell on her in Greene v. Chelsea Borough Council.4* The extent of
& Co. Ltd. the duty was that owed to a licensee, but since the Act of 1957 the
L0RD duty is the common duty of care to see that the structure is
DENNING reasonably safe. B
Fourthly, where an owner employed an indepedent contractor
to do work on premises or a structure, the owner was usually still
regarded as sufficiently in control of the place as to be under a
duty towards all those who might lawfully come there. In some
cases he might fulfil that duty by entrusting the work to the inde-
pendent contractor: see Haseldine v. C. A. Daw & Son** and C
section 2 (4) of the Act of 1957. In other cases he might only be
able to fulfil it by exercising proper supervision himself over the
contractor's work, using due diligence himself to prevent damage
from unusual danger: see Thomson v. Cremin4* as explained by
Lord Reid in Davie v. New Merton Board Mills Ltd.46 But in
addition to the owner, the courts regarded the independent contrac- D
tor as himself being sufficiently in control of the place where he
worked as to owe a duty of care towards all persons coming lawfully
there. He was said to be an "occupier" also: see Hartwell's
case "; but this is only a particular instance of his general duty of
care: see Billings (A.C.) & Sons Ltd. v. Riden,** per Lord Reid.
In the light of these cases, I ask myself whether the brewery ^
company had a sufficient degree of control over the premises to
put them under a duty to a visitor. Obviously they had complete
control over the ground floor and were " occupiers " of it. But I
think that they had also sufficient control over the private portion.
They had not let it out to Mr. Richardson by a demise. They had
only granted him a licence to occupy it, having a right themselves *
to do repairs. That left them with a residuary degree of control
which was equivalent to that retained by the Chelsea Corporation
in Greene's case.49 They were in my opinion " an occupier " within
the Act of 1957, Mr. Richardson, who had a licence to occupy, had
« [1954] 1 Q.B. 319; [1954] 2 *8 [1959]' A.C. 604, 642-645; G
W.L.R. 122; [1954] 1 All E.R. 97, [1959] 2 W.L.R. 331; [1959] 1 All
C.A. E.R. 346, H.L.
« [1954] 2 Q.B. 127; [1954] 3 " [1947] K.B. 901, 912-913.
W.L.R. 12; [1954] 2 All E.R. 318, « [1958] A.C. 240, 250; [1957]
C.A. 3 W.L.R. 496; [1957] 3 All E.R. 1,
" [1941] 2 K.B. 343; 58 T.L.R. 1; H.L.
[1941] 3 All E.R. 156, C.A. *» [1954] 2 Q.B. 127.
« [1956] 1 W.L.R. 103n.; [1953]
2 All E.R. 1185, H.L.
A also a considerable degree of control. So had Mrs. Richardson, H. L. (E.)

who catered for summer guests. All three of them were, in my i%6
opinion, " occupiers " of the private portion of the " Golfer's wheat
Arms." There is no difficulty in having more than one occupier *•
at one and the same time, each of whom is under a duty of care & Co. Ltd.
to visitors. The Court of Appeal so held in the recent case of LoRD
B Crockfords Club.™ PENNING
What did the common duty of care demand of each of these
occupiers towards their visitors? Each was under a duty to take
such care as " in all the circumstances of the case " is reasonable
to see that the visitor will be reasonably safe. So far as the brewery
company are concerned, the circumstances demanded that on the
C ground floor they should, by their servants, take care not only of
the structure of the building, but also the furniture, the state of the
floors and lighting, and so forth, at all hours of day or night when
the premises were open. But in regard to the private portion, the
circumstances did not demand so much of the brewery company.
They ought to see that the structure was reasonably safe, including
D the handrail, and that the system of lighting was efficient. But I
doubt whether they were bound to see that the lights were properly
switched on or the rugs laid safely on the floor. The brewery
company were entitled to leave those day-to-day matters to Mr. and
Mrs. Richardson. They, too, were occupiers. The circumstances
of the case demanded that Mr. and Mrs. Richardson should take
E care of those matters in the private portion of the house. And of
other matters, too. If they had realised the handrail was dangerous,
they should have reported it to the brewery company.
We are not concerned here with Mr. and Mrs. Richardson. The
judge has absolved them from any negligence and there is no
appeal. We are only concerned with the brewery company. They
F were, in my opinion, occupiers and under a duty of care. In this
respect I agree with Sellers L.J. and Winn J., but I come to a differ-
ent conclusion on the facts. I can see no evidence of any breach
of duty by the brewery company. So far as the handrail was con-
cerned, the evidence was overwhelming that no one had any reason
before this accident to suppose that it was in the least dangerous.
G So far as the light was concerned, the proper inference was that it
was removed by some stranger shortly before Mr. Wheat went
down the staircase. Neither the brewery company nor Mr. and
Mrs. Richardson could be blamed for the act of a stranger.
I would, therefore, dismiss this appeal.
50
Fisher v. C.H.T. Ltd. [1965] 1 W.L.R. 1093; [1965] 2 All E.R. 601.
H. L. (E.) LORD MORRIS OF BORTH-Y-GEST. My Lords, the tragic death A

1966 of the appellant's husband set a perplexing problem of deciding
wheat how it came about. He was no more than 42 years of age and
E L' n en J°y e d good health. He purposed to go to the lower part of the
& Co. Ltd. premises and he proceeded to use the back staircase. In some way
and for no readily ascertainable reason he fell. He came down
heavily on the left side of his head. His skull was fractured. What, B
then, was it that happened? The learned judge at the trial was
presented with an issue of extreme difficulty. As to the basic facts
there was little doubt or dispute. The position where the body
was found, the nature of the injuries, the style and description of
the staircase, its relevant measurements, its siting by reference to
the surrounding parts of the structure, the prevailing state or lack 0
of light and of lighting—all these matters were the subjects of
detailed evidence and of carefulfindingsby the learned judge. Could
a consideration of them lead to a conclusion as to the probable
cause of the fall? It was a case where many conjectures could be
made and many possibilities propounded. Could the stage of mere
surmise or pure guesswork be passed? Could one of the several D
possibilities be selected for promotion above the others so as to
take sole place as a probability? Had the case been for decision
by a jury any clear finding as to probability would have been
difficult to assail as lacking a reasonable foundation of evidence. As
the case was not so tried it would, I think, be open to an appellate
court to differ from the conclusion of the learned judge on the issue E
as to how the death came about. I do not, however, find it necessary
to pursue this aspect of the case further. I propose to examine the
matter on the assumption that the view formed by the learned
judge (which merits great respect) was correct.
On this approach two main questions arise: (1) Were the
respondents (whom I will call Lacons) in occupation? (2) If the F
accident happened in the way that the learned judge held, were
Lacons at fault, i.e., were they negligent or in breach of duty?
It is to be noted that the Occupiers' Liability Act, 1957, regu-
lates the duty of an occupier but does not alter the rules of the
common law which determine the question as to who is an occupier.
When someone is an occupier then the rules laid down in the Act G
(in sections 2 and 3) take the place of the rules of the common law.
For the purpose of those rules the persons " who are to be treated
as an occupier and as his visitors " are (subject to one qualification)
the same as the persons who would at common law " be treated
as an occupier and as his invitees or licensees."
The statutorily regulated duty of the occupier to his visitors
H L
A (unless the occupier is free to and does make variation by agree- - - (E-)
ment or otherwise) is the common duty of care. He must take 1966
such care as in all the circumstances of the case is reasonable to wheat
see that the visitor will be reasonably safe in using the premises for E ^
the purposes for which he is invited or permitted by the occupier & Co. Ltd.
to be there. LORD
1
B Who, then, for this purpose is an occupier? I say "for this ^^s.y?F
GEST
purpose " because in other circumstances there may be different
identification (e.g., in connection with rating or in connection with
the franchise). Section 1 (1) of the Act speaks of " an occupier of
premises." Section 1 (2) refers to " a person's occupation or control
of premises " : it goes on to refer to " any invitation or permission
C he gives (or is to be treated as giving) to another to enter or use
the premises." This I think shows that exclusive occupation is not
necessary to constitute a person an occupier. In his speech in
Glasgow Corporation v. Muir51 Lord Wright said S2 :
" Before dealing with the facts, I may observe that in cases of
' invitation' the duty has most commonly reference to the
D structural condition of the premises, but it may clearly apply
to the use which the occupier (or whoever has control so far as
material) of the premises permits a third party to make of the
premises."
This illustrates that there may be someone who would ordinarily be
regarded as the occupier of premises while at the same time there
E may be another occupier who has "control so far as material."
Lord Wright gave the illustration of an occupier of a theatre per-
mitting an independent company to give performances: and the
further illustration of a person holding a fair who grants concessions
to others to hold side shows. Lord Wright 53 had referred to the
duty laid down in Indermaur v. Dames5* as being "limited to
F occupiers, or persons in control" of premises. So also in Hartwell
v. Grayson, Rollo and Clover Docks Ltd." Lawrence L.J. said in
his judgment 56 :
" Invitors, of course, do not as a rule invite others on business
to premises in which the invitors have no business interest
or control, but they may have an interest and control which
G falls short of exclusive occupation, and where they have such
an interest and control and invite others to come to the spot
on business they are bound, in my opinion, to warn the invitee
against concealed dangers of which they know, or ought to
si [1943] A.C. 448; 59 T.L.R. 266; " (1867) L.R. 2 C.P. 311.
B5
[1943] 2 All E.R. 44, H.L. M
[1947] K.B. 901.
52 [1943] A.C. 448, 462. Ibid. 913.
°s Ibid. 461.
H. L. (E.) know, even if such dangers are not created by their own A
1966 positive acts."
Wheat Questions of fact may arise as to the nature and extent of occupa-
E Lacon ^ o n anc * control. Thus in Prenton v. General Steam Navigation
& Co. Ltd. Co. Ltd." there was a question whether contractors were sufficiently
LORD in occupation of the 'tween decks of a ship for the purposes of
tne r w o r
'BOFSH-Y?' ^ k t 0 o w e a duty to an employee of their sub-contractors. B
GEST
It was said by Jenkins L.J. in Pegler v. Craven5B that the concep-
tion of " occupation " is not necessarily and in all circumstances
confined to the actual personal occupation of the person termed
the occupier himself and that in certain contexts and for certain
purposes it extends to vicarious occupation by a caretaker or other
servant or by an agent. 0
This brings me to the question whether Lacons were in occupa-
tion or control. The Richardsons were not made parties to the
appeal and are not before your Lordships. No question as to
their liability calls for investigation. It is impossible, however, to
avoid considering how they as well as Lacons stood in regard to
occupation or control. Much turns upon the facts and also upon D
the effect of the agreement of April 3, 1951. That was a service
agreement. Lacons were called " the employers." Mr. Richardson
was being employed as " the manager" of the public-house
called the " Golfers' Arms." He was being employed upon the
terms and conditions of the agreement. He was to devote all his
time (except for holiday periods) to managing the business. He was E
to do his best for the business. There was a clause (clause 5) which
fits somewhat oddly into a service agreement, which required the
manager to permit his employers their servants or agents " at all
times to enter into and upon the said premises" for the purposes,
shortly stated, of (a) viewing the condition and state of repair of
the premises and of (b) testing the strength of or inspecting the F
stock of the liquor to be sold. Under the agreement the manager
was not to " part with the possession of the said premises or any
part thereof " without his employers' consent. There was a clause
that he " shall and may," so long as his service continued, occupy
" the same public-house without paying any rent, rates, or taxes."
No tenancy was to be created. The licence, if the justices agreed, 0-
was to be (during the employment) in the manager's name. The
residential part was all unfurnished when the manager first entered.
He then furnished such part.
ss
« (1944) 77 L1.L.R. 174. [1952] 2 Q.B. 69, 74; [1952] 1
T.L.R. 618; [1952] 1 All E.R. 685,
C.A.
A As a privilege (which could be withdrawn) Lacons allowed their H. L. (E.)

managers to take visitors for reward during the summer and made 1966
no charge to the manager for the use of accommodation, lighting ât
and heating. It was as a result of this privilege that Mrs. Richard- _ S-
son agreed to accommodate Mr. Wheat and his party for a period & Co. Ltd.
of about a week which covered the early days of September, 1958. LORD
B The general result of the agreement and of the arrangements to ô^Jf.Y°F
which I have referred was that Lacons through their servant were GEST
in occupation of the whole premises. Their servant was required
to be there. The contemplation, it would appear, was that Lacons
would see to the condition of the premises and would effect any
necessary repairs. As the residential part would constitute the home
C of the manager and his family it was a reasonable inference, and it
would be mutually assumed, that his privacy in regard to it would
be respected. It would be mutually assumed that Lacons could not
as of right enter that part save for the defined purpose of viewing
its condition and state of repair. There was freedom for the
manager or his wife to make contracts with and to receive and
D entertain visitors for reward.
The conclusion I reach is that as regards the premises as a
whole both Lacons and the manager were occupiers, but that by
mutual arrangement Lacons would not (subject to certain over-
riding considerations) exercise control over some parts. They gave
freedom to their manager to live in his home in privacy. They
E gave him freedom to furnish it as and how he chose. They gave
him freedom to receive personal guests, and also to receive guests
for reward. I think it follows that both Lacons and the Richardsons
were " occupiers " vis-a-vis Mr. Wheat and his party. Both Lacons
and the Richardsons owed Mr. Wheat and his party a duty. The
duty was the common duty of care. The measure and the content
F of that duty were not, however, necessarily the same in the case
of Lacons and in the case of the Richardsons. The duty was to
take such care as in all the circumstances of the case was reason-
able to see that Mr. Wheat and his party would be reasonably safe
in using the premises as guests for reward. Lacons did not know
that Mr. Wheat and his party were to arrive but they had given
G permission to their manager to take guests, and the result was that
Mr. Wheat and his party were on the premises with Lacons' permis-
sion. The " circumstances of the case " would, however, vary as
between Lacons and the Richardsons. Thus, if after Mr. Wheat
and his party had arrived they had been ascending the main stair-
case and if it had collapsed and caused them injury a question
would have arisen whether either Lacons or the Richardsons or any
H. L. (E.) or all of them had been lacking in their duty. " T h e circumstances A
1966 of the case " in such a situation would have, or might have, been
Wheat quite different so far as Lacons were concerned from what they
„ /• would have been so far as the Richardsons were concerned. If, to
E. Lacon
& Co. Ltd. take another possibility, the Wheats had entered a living-room of
LORD the Richardsons which had been fitted and equipped and furnished
I
BORTHS-Y°F by the Richardsons and had suffered some mishap which arose from B
GEST the state or condition of the equipment or furnishings " the circum-
stances of the case " would have been, or might have been, quite
different so far as the Richardsons were concerned from the cir-
cumstances so far as Lacons were concerned.
In the illustrations to which I have referred it might be or
could be that there would be some failure on the part of Lacons C
to take care in regard to the staircase and no failure on the part
of the Richardsons: so it might be or could be that there would be
some failure on the part of the Richardsons in regard to some
equipment or furnishing in a living-room and no failure on the
part of Lacons.
It may, therefore, often be that the extent of the particular D
control which is exercised within the sphere of joint occupation
will become a pointer as to the nature and extent of the duty which
reasonably devolves upon a particular occupier.
Mr. Wheat decided to use the backstairs. We have no occasion
to consider whether, on the assumption that he fell in the way that
the learned judge thought he fell, there was any failure to take care B
on the part of the Richardsons. T h e learned judge held that there
was not. T h e only question that now arises is whether Lacons failed
to take such care as in all the circumstances it was reasonable for
them to take to see that paying guests of the Richardsons would be
reasonably safe in using the premises. Though the staircase which
Mr. Wheat used was the back staircase and not the main one I think J?
that Lacons would and should have realised that a visitor might
use the back staircase. Did they negligently provide a staircase
which it would be unsafe to use? I cannot think that they did. In
daylight the staircase was quite safe to use. In the period of 20
years before the day Mr. Wheat fell there had been no accident on
the stairs. I n darkness the means of illumination was provided. I G
cannot think that there was a failure to take reasonable care on
the part of Lacons. I d o not consider that they were negligent in
failing to contemplate and to eliminate the possibility that someone
unfamiliar with the stairs might use them in the dark or when a
light was not available and might, on the assumption that the end
of the handrail marked the reaching of the lowest stair, take a step
A,C. AND PRIVY COUNCIL 587
A onwards without feeling or testing whether such an assumption H.L.(E.)

was correct. 1966
Accordingly, I would dismiss the appeal. Wheat
V.
E. Lacon
LORD PEARCE. My Lords, I agree that this appeal fails for the & Co - Ltd -
reasons which have been fully set out by my noble and learned
B friend Lord Dilhorne. I agree with him that the respondents were
under a duty of care to the deceased under the Occupiers' Liability
Act, 1957. But that Act may impose a duty of care on more than
one person. And in my opinion the Richardsons were also under
a duty of care. The safety of premises may depend on the acts or
omissions of more than one person, each of whom may have a
C different right to cause or continue the state of affairs which creates
the danger and on each a duty of care may lie. But where separate
persons are each under a duty of care the acts or omissions which
would constitute a breach of that duty may vary very greatly. That
which would be negligent in one may well be free from blame
in the other. If the Richardsons had a dangerous hole in the
D carpet which they chose to put down in their sitting-room that
would be negligent in them towards a visitor who was injured by it.
But the respondents could fairly say that they took no interest in
the Richardson's private furnishings and that no reasonable person
in their position would have noticed or known of or taken any
steps with regard to the dangerous defect. If the construction of
E the staircase was unsafe that would be negligence on the respon-
dents' part. Whether the Richardsons would also be negligent in
not warning their visitors or taking steps to reveal the danger would
depend on whether a reasonable person in their position would have
done so. Once the duty of care is imposed, the question whether
a defendant failed in that duty becomes a question of fact in all
F the circumstances. In the present case the respondents are not
shown to have failed in their duty of care.
I agree with the observations of my noble and learned friend
Lord Denning on the Occupiers' Liability Act, 1957.
I would dismiss the appeal.
G LORD PEARSON. My Lords, in my opinion this appeal must fail
on the facts. The occurrence of the unfortunate accident remains
a mystery, as there is no probable explanation of how it happened.
It was not reasonably foreseeable that any such accident would
happen. The staircase was an ordinary back staircase, narrow and
rather steep, not intended for frequent use except perhaps by the
resident manager or tenant and his wife, and not needing to be
H. L. (E.) used by paying guests. The handrail was helpful, even though it A.
1966 did not extend for the full length of the stairs. Anyone familiar
w t n tn
Wheat i e staircase could safely walk up or down it in any state of
E Lacon ''&ht or darkness or partial darkness. A person not familiar with
& Co. Ltd. the staircase would have no difficulty in walking up it if there was
LORD any light in the landing to show him where the top of the stairs
PEARSON
was: and his ascent of the staircase in darkness would be only B
troublesome and not dangerous. For a person not familiar with the
staircase and wishing to walk down it (a) there would be no
difficulty in daylight nor at night with the aid of electric light, for
which Lacons had provided a fitting and a switch at the top of the
staircase and an ample supply of bulbs; (b) if it was night time
and by some mischance the electric light bulb had failed or had C
been removed, he could either decide not to use this staircase or
proceed with extreme care, feeling his way with his feet, which
would be the obvious and natural thing to do; (c) if there was a
state of dusk or partial darkness, he could pause at the top of the
stairs until his eyes became accustomed to the dim light and he
could see where the steps ended. It was not to be expected that a D
person unfamiliar with the staircase would go down it in the semi-
darkness without pausing until he could see where he was going, and
relying on the handrail and assuming it must extend for the whole
length of the staircase, and stepping out with confidence as soon as
he found the handrail had come to an end. In my view, the short
handrail was merely helpful and not dangerous, because it was not E
probable or reasonably foreseeable that it would cause any accident.
The absence of the electric light bulb from the fitting at the top of
the staircase was unaccounted for. There was mere speculation
and no evidence or ground for inference as to who might have
removed it. The absence of the bulb was not shown to be due to
any negligence on the part of Mr. or Mrs. Richardson, whether p
acting on his or her own behalf or as servant or agent of Lacons.
The appellant cannot succeed on the issue of negligence.
There is, however, the question as to the occupation of the
upper part of the premises. The majority of the Court of Appeal
held that the plaintiff's claim against Lacons failed because Lacons
were not in occupation and so did not have occupiers' liability in G
respect of that part of the premises. I have found this question
difficult but in the end I think the right conclusion is that there was
dual occupation, i.e., occupation by the Richardsons and occupa-
tion by Lacons. That conclusion depends on the special facts of
this case, but it is necessary to say something about the nature of
the occupation which is requisite for occupiers' liability.
A The phrasing of section 1 (1) and (2) of the Act of 1957 is in H. L. (E.)
one respect somewhat puzzling. I will underline the phrases which 1966
need to be reconciled. Subsection (1) provides that: wheat
" The rules enacted by the two next following sections shall E. Lacon
&
have effect, in place of the rules of the common law, to regu- CoJLtd.
late the duty which an occupier of premises owes to his visitors L ORD
g in respect of dangers due to the state of the premises or to PEARSON
things done or omitted to be done on them."
Subsection (2) provides that:
" T h e rules so enacted shall regulate the nature of the duty
imposed by law in consequence of a person's occupation or
control of premises and of any invitation or permission he
Q gives (or is to be treated as giving) to another to enter or use
the premises, but they shall not alter the rules of the common
law as to the persons on whom a duty is so imposed or to
whom it is owed; and accordingly for the purpose of the rules
so enacted the persons who are to be treated as an occupier
and as his visitors are the same (subject to subsection (4) of
this section) as the persons who would at common law be
treated as an occupier and as his invitees or licensees."
The puzzle is created by the references in three places to " a n
occupier " and in one place to " occupation or control." I think
the solution is to be found in the cases decided at common law, in
which occupier's liability has been attributed or envisaged as attri-
butable to persons, such as building or ship-repairing or road-work-
E ing contractors, who were or might have been in temporary control
and therefore for this purpose " in occupation " of premises or parts
of premises or ships or roadways or road verges, although they
would not be held to be " in occupation " for the purposes of rating
or tax law: see Canter v. / . Gardner & Co. Ltd.™; Duncan v.
Cammell Laird"0; Hartwell v. Grayson, Rollo and Clover Docks
F Ltd.ei; Creed v. McGeoch."2 The foundation of occupier's liability
is occupational control, i.e., control associated with and arising
from presence in and use of or activity in the premises. In Duncan
v. Cammell Laird & Co. Ltd.BS Wrottesley J. said 6 4 :
" It seems to me that the importance of establishing that
the defendant who invites is the occupier of the premises lies
G in the fact that with occupation goes control. And the impor-
tance of control is that it affords the opportunity to know that
the plaintiff is coming on to the premises, to know the
premises, and to become aware of dangers, whether concealed
e2
"9 [1940] 1 All E.R. 325, 329. [1955] 1 W.L.R. 1005, 1008-
60
[1943] 2 All E.R. 621, 627. 1009; [1955] 3 All E.R. 123.
61
[1947] K.B. 901. «8 [1943] 2 All E.R. 621.
B* Ibid. 627.
A.C. 1966 38
H. L. (E.) or not, and to remedy them, or at least to warn those that are ,A
1966 invited on to the premises."
wheat It seems to me clear that Mr. and Mrs. Richardson had at least
v.
E. Lacon some occupational control of the upper part of the premises to
^l_l ' which the appeal relates. They lived there. They provided the
PEARSON furniture. They for their own benefit took in paying guests and
— received them and looked after them. The paying guests would ®
have been their invitees at common law, and were their visitors
under the Act of 1957. Moreover, Mr. and Mrs. Richardson were
present and able to see the state of the premises and what was
being done or omitted therein. If anything was wrong, they could
take steps to rectify it or have it rectified. If there were any
danger, they could protect the paying guests by erecting a barrier ^
or giving a warning or otherwise. Mr. and Mrs. Richardson were
the appropriate persons for bearing and fulfilling the common duty
of care. Under section 2 (2) of the Act of 1957
" The common duty of care is a duty to take such care as
in all the circumstances of the case is reasonable to see that j)
the visitor will be reasonably safe in using the premises for
the purposes for which he is invited or permitted by the
occupier to be there."
But I think Lacons also had some occupational control of the
upper part of the premises. The lower part, the licensed part, was
occupied by Lacons through their servant Mr. Richardson and g
their agent Mrs. Richardson for the purpose of the liquor-selling
business of Lacons. The agreement applied to the whole of the
premises without distinguishing between the two parts. Mr.
Richardson as manager for Lacons was required as well as
entitled to occupy the whole of the premises on their behalf. H e
was required to live in the upper part for the better performance p
of his duties as manager of the business of Lacons. His right to
live there, and the permission to take in paying guests, were
perquisites of the employment. The paying guests, though invited
by the Richardsons, had Lacons' permission to come and were
therefore visitors of Lacons as well as of the Richardsons. The
fact that Lacons gave permission for the Richardsons to take in Q
paying guests is important as showing that Lacons had some
control over the admission of persons to the upper part of the
premises. Lacons did not themselves say " C o m e in," but they
authorised the Richardsons to say " Come in.", Lacons had, under
clause 5 of the agreement, an express right «.to: enter the premises
for viewing the state of repair, and, as was conceded (correctly in
A my opinion), an implied right to do the repairs found to be H. L. (E.)

necessary. It is fair to attribute to Lacons some responsibility for i?66
the safety of the premises for those who would, in pursuance of wheat
the authority given by Lacons, be invited to enter as paying E **•
guests the upper part of the premises. In matters relating to the & Co. Ltd.
design and condition of the structure they would be in a position £ORD
B to perform the common duty of care. PEARSON
For these reasons I agree that there was, for the purposes of
occupiers' liability, dual occupation of the upper part of the
premises. But as there was no proof of negligence on the part of
Lacons I would dismiss the appeal.
C Appeal dismissed.
Solicitors: Jacques & Co.; Wm. Easton & Sons.

C. J. E.
D
C
[HOUSE OF LORDS] - C- A
-
1965
tan
BUTTON APPELLANT r3b.'x?'
AiiD
LORD
P
DIRECTOR OF PUBLIC PROSECUTIONS . RESPONDENT ^SRH££"
E and
W,D
SWAIN APPELLANT f^Y ,J"
AND H.L.(E.)»
DIRECTOR O F PUBLIC PROSECUTIONS . RESPONDENT 1965
Oct. 5,
6, 27
[ON APPEAL FROM REGINA v. BUTTON; REGINA V. SWAIN]
F
Crime—Affray—Public place—Nature and ambit of offence—Com
munis error—Whether public place necessary ingredient of
offence—Fight on private premises to the terror of bystanders—
Whether sufficient to constitute affray.
Judicial Precedent—Decision long undisturbed—Criminal law—Affray.
G On May 22, 1964, a darts league held its annual dance in a

private hall and only persons who had a ticket were admitted.
During the dance some youths created a disturbance and fighting
broke out. The defendants were charged with making an affray
and the particulars of the offence in the indictment alleged that at
* Present: LORD GARDINER L.C., LORD R E I D , LORD MORRIS OF

BORTH-Y-GEST, LORD PEARCE and LORD PEARSON.

552 Wheat Appellant V E Lacon Co LTD Respondents PDF

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

552 Wheat Appellant V E Lacon Co LTD Respondents PDF

Загружено:

Авторское право:

Доступные форматы

552 HOUSE OF LORDS [1966]

H. L. (E.)* WHEAT APPELLANT

* Present: VISCOUNT DILHORNE, LORD DENNING, LORD MORRIS

A There was no direct access between the licensed premises on H. L. (E.)

APPEAL from the Court of Appeal (Harman and Diplock

C David Croom-Johnson Q.C. and /. D. Hayman for the plaintiff.

H. L. (E.) The first two questions involve a consideration of the service A

A himself and that in certain circumstances it extends to vicarious H - L - CE.)

,, e (1861) 10 C.B.N.S. 227. « [1892] A.C. 150; 8 T.L.R. 434,

A On causation, there was virtually no dispute as to the primary H. L. (E.)

« [1940] 1 All E.R. 325; 56 " [1955] 1 W.L.R. 1005, 1008;

H. L. (E.) w a s one which might reasonably be brought about because of that A

Their Lordships took time for consideration.

A On August 19, 1960, Mrs. Wheat, his widow, commenced an H. L. (E.)

H. L. (E.) It is, I think, equally possible that if he had been relying on A

H. L. (E.) for the occupation of the whole of the public-house by their A

A In Glasgow Corporation v. Johnstone," where it was held that H. L. (E.)

A in determining whether, in the circumstances of a particular case, H. L. (E.)

*• [1966] 1 Q.B. 335, 372.

« [1954] 1 Q.B. 319; [1954] 2 *8 [1959]' A.C. 604, 642-645; G

A also a considerable degree of control. So had Mrs. Richardson, H. L. (E.)

H. L. (E.) LORD MORRIS OF BORTH-Y-GEST. My Lords, the tragic death A

A As a privilege (which could be withdrawn) Lacons allowed their H. L. (E.)

A onwards without feeling or testing whether such an assumption H.L.(E.)

A my opinion), an implied right to do the repairs found to be H. L. (E.)

Solicitors: Jacques & Co.; Wm. Easton & Sons.

G On May 22, 1964, a darts league held its annual dance in a

* Present: LORD GARDINER L.C., LORD R E I D , LORD MORRIS OF

Вам также может понравиться