Roles v Nathan

Facts

Two chimney sweeps, Roles and Carter, were engaged to clean the flue of a coke-fired boiler. They were warned of the danger from fumes and told not to work while the boiler was alight. They were found dead from carbon monoxide poisoning after sealing a sweep-hole while the boiler was still alight. Their dependants sued the occupiers under the Occupiers' Liability Act 1957.

History

At first instance Elwes J held the occupiers liable, subject to a reduction for the sweeps' contributory negligence. The occupiers appealed to the Court of Appeal.

Issue

Whether the occupiers had breached the common duty of care owed to visitors under the Occupiers' Liability Act 1957 by failing to prevent the sweeps from being poisoned by fumes while working, and how the warnings and the visitors' calling bore on the duty.

Held

Appeal allowed by a majority, Pearson LJ dissenting. The occupiers were not liable, because the sweeps were skilled in the risks of their calling and had been warned, and the deaths resulted from their own failure to heed the warnings.

Ratio

• An occupier may expect that a person entering premises in the exercise of his calling will appreciate and guard against any special risks ordinarily incident to it, so that the occupier is not in breach by leaving the visitor to deal with those risks.
• A warning given to a visitor that enables him to be reasonably safe is sufficient to discharge the occupier's duty, and the deaths resulted from the sweeps' disregard of the warning.

The judgments

Key reasoning

• The statutory provision allowing for the visitor's calling means that the standard of care is adapted to the visitor, so a skilled professional is expected to look after himself on matters within his expertise.
• The danger was the very risk of the sweeps' trade, in which they were more knowledgeable than the occupier, so it fell within the special risks that the occupier was entitled to leave to them.
• The warnings were clear and adequate in all the circumstances, and nothing else the occupiers could reasonably have done would have prevented the deaths.

Where it fits in the module

For FHS Tort, Roles v Nathan is the starred case on occupiers' liability to visitors under the 1957 Act. It tests how the common duty of care is shaped by the identity and skill of the visitor, the effect of warnings, and how far the visitor's calling shifts responsibility away from the occupier. Students should connect it to Ogwo v Taylor [1988] AC 431, in which the occupier's duty to a professional fire fighter was upheld, and consider how far the rule survives where the occupier's negligence creates the danger.

Criticisms

• The principle may allow occupiers to avoid liability by pointing to the visitor's expertise, even where the occupier has created or contributed to the danger.
• The court appears to apply the notion of the visitor's calling as a rule of responsibility transfer and not as a factor in assessing reasonableness, which may be inconsistent with the statutory wording.
• Treating a warning as an effective discharge of the duty is generous to occupiers where the visitor is under pressure to complete the work.