MARY ELLEN ROLES (Widow) (Administratrix of the estate of Donald Roles deceased) v Plaintiff [1963] EWCA Civ 6

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL.

(From Mr JUSTICE ELWES. Manchester Assizes).

[1963] EWCA Civ 6

Case No Case No.: 1961. R. No. 1630.

Venue Royal Courts of Justice,

Between

MARY ELLEN ROLES (Widow) (Administratrix of the estate of Donald Roles deceased)

Plaintiff

HERBERT A. NATHAN (trading as Manchester Assembly Rooms)Defendant

And between:

MARY ELLEN ROLES (Widow) (Administratrix of the estate of Donald Roles deceased)

Plaintiff

ERIC CORNEY, JAMES WOOD and LAURENCE MARKS (Executors of Herbert Abraham Nathan deceased)Defendants

ANNIE MAY ROLES (Widow) (Administratrix of the estate of Joseph Roles deceased)

Plaintiff

HERBERT A. NATHAN (trading as Manchester Assembly Rooms)Defendant

And between:

ANNIE MAY ROLES (Widow) (Administratrix of the estate of Joseph Roles deceased)

Plaintiff

ERIC CORNEY, JAMES WOOD and LAURENCE MARKS (Executors of Herbert Abraham Nathan deceased)Defendants

(by original Writ and Order to carry on).Actions consolidated by Order dated 2nd May, 1961)

Before

The Master of the Rolls

Lord Denning

Lord Justice Harman

Lord Justice Pearson

Mr W.D. THORNLEY HODGSON, Q. C., and Mr KEITH W. DEWHURST (instructed by Messrs L. Bingham & Co., Agents for Messrs James Chapman & Co., Manchester) appeared on behalf of the Appellants (Defendants).

Mr J. STANLEY WATSON, Q. C., and Mr EDWARD S. TEMPLE (instructed by Messrs Jaques & Co., Agents for Messrs Cecil Franks & Co., Manchester) appeared on behalf of the Respondents (Plaintiffs).

Date 15 May 1963

[1]REVISED. THE MASTER OF THE ROLLS : This case arises out of a tragic accident which took place on Friday, 12th December, 1958, when two chimney sweeps were overcome by fumes, and died in the basement of the Manchester Assembly Rooms. Their widows bring the action against the occupier, Mr Nathan, claiming that he was at fault and in breach of the duty of care which is now laid down by the Occupiers' Liability Act of 1957. It is very unfortunate that this case was tried so long after the accident. The action was not commenced until 2½ years after the accident, and not tried till four years after. In the intervening time the caretaker, a most important witness, had disappeared without trace. So the court, after this length of time, is in great difficulty in ascertaining the facts. In the Assembly Rooms there was a central heating boiler in which coke was used as a fuel. The boiler had been manufactured in 1929, and was thus nearly thirty years old. There was an old system of flues to carry away the smoke and fumes. One of these was a horizontal flue 24 ins. in diameter which ran from the boiler for 70 ft. along under the floor. That led into a vertical flue 18 ins. in diameter which went up a chimney 80 ft. in height. In the horizontal flue there was an inspection chamber under a slab in the floor. In the vertical flue there was a "sweep-hole" about 12 ins. in diameter and 9 ft. above the ground. It was sometimes very difficult to get this boiler lighted up. The difficulty was to get a draught going along the flues. When it was first lighted, smoke and fumes got into the atmosphere, which cleared off when the fire got going well. In April 1958 some repairs were carried out, and a firm of builders gave this advice:

"If it smokes, light a fire at the foot of the flue to create a draught"

. In December 1958 the occupier, Mr Nathan, himself was ill in hospital, and his son-in-law, Mr Corney, was looking after the Assembly Rooms for him. On the 9th December 1958 the boiler was to be got going for the winter. The fire was lit. There was a lot of smoke. They called in Mr Gardner, a boiler engineer. He said that the flues needed cleaning. So they called in two chimney sweeps to sweep the flues. They were the brothers Donald Roles and Joseph Roles. Now coke, when burning, gives off carbon monoxide gas, which is very dangerous because it cannot be seen or smelt. It is a stealthy killer. This should be known to everyone who has anything to do with boilers. On the Tuesday, when the sweeps arrived, Mr Gardner warned them of the danger from the fumes, but they took no notice. He described how they acted:

"Donald crawled into the horizontal flue I told him he should take care and not go in when the thing was just open. Give it a chance to clear out a bit, but he said he knew; he was a flue cleaner for many years, and he knew what he was doing. So we do not interfere with people who know what they are doing"

. The fire was let out, and on the Wednesday the sweeps cleaned out the flue. On the Thursday the boiler was lit up again, but still there was trouble with the fumes and the smoke. So they called in an expert, Mr Collingwood. When Mr Collingwood got there he saw the fumes and smoke, and he gave another warning; he advised that the fire should be withdrawn at once. He told everyone to get out of the place altogether and get some fresh air. The two flue sweeps were not prepared to accept Mr Collingwood's advice. He described what took place; "I ordered everybody out, and they just jumped into the hole, and that was it. I went over to them and warned them against this, and I got foul language". Mr Collingwood went on to say:

"I ordered them out and told them the danger of the gas, and the use of it, and they said that they knew a damn sight better; they had been in this business all their life; they did not need my advice"

. He said that he repeated his warning two or three times, and added:

"They eventually came out, under duress. I had to more or less drag them out"

. After Mr Collingwood had made his inspection, the boiler was lit again. He created a draught by lighting a bit of paper at the bottom of the vertical shaft so as to get it hot. But that was only a temporary expedient. He advised a permanent remedy, either a new flue or an induction fan in the base of the chimney. A new flue would cost a lot of money. So they decided on an induction fan. This could not be provided at once, so they would have to light it up for a time without the fan. Mr Collingwood then gave another warning which is crucial in this case. He advised the two sweeps, Mr Corney and everyone there that the two vent holes (the inspection chamber and the sweep-hole) were to be sealed up before the boiler was lit up. "I repeated this warning", he said, "quite a few times to everyone that was there, not only the Roles brothers. That was to everyone in the place of the danger of these gases". But the attitude of the sweeps, he said, throughout was that they were experts, and they really knew better than Mr Collingwood himself. It does appear, however, that Mr Collingwood did contemplate the possibility that the boiler might be lit before the holes were sealed up. He said that from his own practical experience he thought that he could seal the holes with the fire on. He thought the sweeps could have done it, but said:

"It depends entirely how long they were in there. I myself could have gone in there and sealed them off and come back out again, but I certainly would not have stayed in there any length of time"

. He advised the sweeps, he said, while they were sealing up, not to stay too long in the alcove. So much for the warnings that were given. On Friday, the 12th December, the fire was lighted. We do not know by whom, but perhaps by the caretaker. The sweeps were working there that day with the fire on. On Friday evening Mr Corney and Mr Gardner went there. The sweeps had very nearly completed their work, but they had not finished sealing up the sweep-hole in the vertical shaft. Mr Corney said:

"The job was not complete in as much as the cover over the flue hole was not cemented on"

. He asked the sweeps about it. They said they had not enough cement to do it. It was too late to complete it then, but they would get the necessary cement the following morning from a builder's yard and complete the job. So Mr Corney left thinking they would come back the next morning (the Saturday morning) to finish off the job.

The Judge asked him:

"With the fire still on ? (A) I did not think that could have been done with the fire alight. I was under the impression the fire would be out in the morning when they came back to do the job"

. It now turns out that the sweeps must have got their cement that evening, and they must have come back later that night. Maybe the caretaker let them in. They came back and attempted to seal up the sweep-hole with an old dustbin lid and with cement. The fire was on at the time. Whilst they were doing this, they were overcome by fumes and died. Their bodies were found next morning. One body was just in the alcove, and the other a little way out, as though he had been trying to pull his workmate out of the alcove. One of them had on his nose a mask of wadding with a nose clip. And so they died. When the police inspected the boiler between 8 and 9 o'clock in the morning, the fire was found to be brightly burning. It is quite plain that these men died because they were overcome by fumes of carbon monoxide. It would appear to a layman that the fumes must have come from the sweep-hole, but the Judge on the evidence thought they probably came from the boiler. But I do not think it matters. The fumes came from the boiler or the sweep-hole or both. The question is whether anyone was at fault. The Judge found Mr Corney guilty of negligence because "he failed to take such care as should have ensured that there was no fire lit until the sweep-hole had been sealed up". He said:

"Unfortunately Mr Corney did not tell the caretaker to draw the fire, or at any rate not to stoke it up"

. On this account he held that Mr Corney was at fault, and the occupier liable. But he found the two sweeps guilty of contributory negligence, and halved the damages.

The Judge said:

"That negligence" – that is to say, of the chimney sweeps - "consisted in the knowledge that there was gas about, or probably would be, the way they ignored explicit warnings and showed complete indifference to the danger which was pointed out to them in plain language, and this strange indifference to the fact that the fire was alight, when Mr Collingwood had said it ought not to be, until the sweep-hole had been sealed"

. The occupier now appeals and says that it is not a case of negligence and contributory negligence, but that, on the true application of the Occupiers' Liability Act 1957, the occupier was not liable at all. This is the first time we have had to consider that Act. It has been very beneficial. It has rid us of those two unpleasant characters, the invitee and the licensee, who haunted the courts for years, and it has replaced them by the attractive figure of a visitor, who has so far given no trouble at all. The Act has now been in force six years, and hardly any case has come before the courts in which its interpretation has had to be considered. The draughtsman expressed the hope that "the Act would replace a principle of the common law with a new principle of the common law ; instead of having the Judgment of Mr Justice Willes construed as if it were a statute, one is to have a statute which can be construed as if it were a Judgment of Mr Justice Willes". It seems that his hopes are being fulfilled. All the fine distinctions about traps have been thrown aside and replaced by the common duty of care. "The common duty of care", the Act says, "is to take such care as in all the circumstances of the case is reasonable to see that the visitor" - note the visitor, not the premises - "will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there". That is comprehensive. All the circumstances have to be considered. But the Act goes on to give examples of the circumstances that are relevant. The particular one in question here is in subsection (3) of section 2:

"The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases ... (b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so"

. That subsection shows that the case of Christmas v. Caledonian Club (1952 volume 1 King's Bench Division, page 141) is still good law under this new Act. There a window cleaner (who was employed by independent contractors) was sent to clean the windows of a club. One of the windows was defective; it had not been inspected and repaired as it should have been. In consequence, when the window cleaner was cleaning it, it ran down quickly and trapped his hand, thus causing him to fall. It was held that he had no cause of action against the club. If it had been a guest who had his fingers trapped by the defective window, the guest could have recovered damages from the club. But the window cleaner could not do so. The reason is this: The householder is concerned to see that the windows are safe for his guests to open and close, but he is not concerned to see that they are safe for a window cleaner to hold on to. The risk of a defective window is a special risk, but it is ordinarily incident to the calling of a window cleaner, and so he must take care for himself, and not expect the householder to do so. Likewise in the case of a chimney sweep who comes to sweep the chimneys or to seal up a sweep-hole. The householder can reasonably expect the sweep to take care of himself so far as any dangers from the flues are concerned. These chimney sweeps ought to have known that there might be dangerous fumes about and ought to have taken steps to guard against them. They ought to have known that they should not attempt to seal up the sweep-hole whilst the fire was still alight. They ought to have had the fire withdrawn before they attempted to seal it up, or at any rate they ought not to have stayed in the alcove too long when there might be dangerous fumes about. All this was known to these two sweeps; they were repeatedly warned about it, and it was for them to guard against the danger. It was not for the occupier to do it, even though he was present and heard the warnings. When a householder calls in a specialist to deal with a defective installation on his premises, he can reasonably expect the specialist to appreciate and guard against the dangers arising from the defect. The householder is not bound to watch over him to see that he comes to no harm. I would hold, therefore, that the occupier here was under no duty of care to these sweeps, at any rate in regard to the dangers which caused their deaths. If it had been a different danger, as for instance if the stairs leading to the cellar gave way, the occupier might no doubt be responsible, but not for these dangers which were special risks ordinarily incidental to their calling. Even if I am wrong about this point, and the occupier was under a duty of care to these chimney sweeps, the question arises whether the duty was discharged by the warning that was given to them. This bring us to subsection (4) which says:

"In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) - (a) where damage is caused to a visitor by a danger of which he has been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe"

. We all know the reason for this subsection. It was inserted so as to clear up the unsatisfactory state of the law as it had been left by the decision of the House of Lords in Horton v. London Graving Dock (1951 Appeal Cases, page 737). That case was commonly supposed to have decided that, when a person comes on to premises as an invitee, and is injured by the defective or dangerous condition of the premises (due to the default of the occupier), it is nevertheless a complete defence for the occupier to prove that the invitee knew of the danger, or had been warned of it. Supposing, for instance, that there was only one way of getting into and out of premises, and it was by a footbridge over a stream which was rotten and dangerous. According to Horton's case, the occupier could escape all liability to any visitor by putting up a notice:

"This bridge is dangerous", even though there was no other way by which the visitor could get in or out, and he had no option but to go over the bridge. In such a case, section 2 subsection (4) makes it clear that the occupier would not be liable. But if there were two footbridges, one of which was rotten, and the other safe a hundred yards away, the occupier could still escape liability, even today, by putting up a notice: "

Do not use this footbridge. It is dangerous. There is a safe one further upstream". Such a warning is sufficient because it does enable the visitor to be reasonably safe. I think that the law would probably have developed on these lines in any case; see Greene v. Chelsea Borough Council (1954 volume 2 Queen's Bench Division, page 127) where I ventured to say at page 139:

"Knowledge or notice of the danger is only a defence when the plaintiff is free to act upon that knowledge or notice so as to avoid the danger"

. But the subsection has now made it clear. A warning does not absolve the occupier unless it is enough to enable the visitor to be reasonably safe. Apply subsection (4) to this case. I am quite clear that the warnings which were given to the sweeps were enough to enable them to be reasonably safe. The sweeps would have been quite safe if they had heeded these warnings. They should not have come back that evening and attempted to seal up the sweep-hole while the fire was still alight. They ought to have waited till next morning, and then they should have seen that the fire was out before they attempted to seal up the sweep-hole. In any case they should not have stayed too long in the sweep-hole. In short, it was entirely their own fault. The Judge held that it was contributory negligence. I would go further and say that under the Act the occupier has, by the warnings, discharged his duty. I would therefore be in favour of allowing this appeal and entering Judgment for the defendants. LORD JUSTICE BARMAN : The facts of this case remain lamentably obscure, partly because the two chief actors whose acts or defaults have caused the claim to be made by their widows (the plaintiffs) are dead, and. partly because of the disappearance of the caretaker at the relevant time of the building where the tragedy occurred. Moreover, there has been a great delay in starting the action, and the events were over four years old at the time of the trial. This may make it more difficult for the plaintiffs to prove their case, but in my judgement they must accept that disadvantage, which is largely of their own making. The facts, so far as known, seem to be as follows. The Manchester Assembly Rooms were the property of, and occupied by, the former defendant, Herbert A. Nathan. This building in 1958 was heated by radiators served by a coke boiler in the cellar, itself in use since 1929, but which succeeded an even older one whose flue and the chimney which carried off the smoke and fumes were still in use and ill-adapted to a coke system. There was running from the boiler under the floor of the cellar a long flue which had in it an inspection chamber under a flagstone and went into an upright chimney whose base was in a small alcove on the other side of the cellar. About 9 ft up this chimney was a circular sweep hole 14 ins in diameter. The upright chimney carried the smoke and by-products 80 ft. up to the open air. The old flue and chimney often gave trouble. The difficulty was to get the fire alight, there being no adequate draught so long as the flue was cold. This is trouble occured in April 1958, when some repairs were done, and the caretaker was advised to heat the base of the chimney by lighting a fire outside it in a dustbin, thus creating a draught. In December 1958, when the boiler was relit, there was further trouble. A heating engineering was consulted, who decided that the flue needed cleaning, whereupon the two dead men, who were brothers and chimney sweeps in partnership, were called in. On Tuesday, the 9th December 1958, they removed the flagstone over the inspection chamber, and although the fire was only just out, they ignored the cautions of the heating engineer and entered the flue which one of them declared to be blocked. The sweeps worked on this on Wednesday, the 10th December, and on Thursday the 11th, an attempt to relight the fire was made. Further trouble at once ensued, the cellar being filled with smoke. At this juncture the occupier's agent, one Corney, consulted a person called Collingwood, who was expert in the management of boilers and flues. On arrival he had the fire drawn, and declared the flue to be dangerous because of the gases generated. He ordered everyone out of the cellar. This was a novel doctrine, no danger having been previously suspected, only lighting difficulties. The sweeps became abusive, asserting that they knew better than Collingwood, and one of them actually jumped into the flue. Collingwood insisted on the danger from gas, and even himself removed them from the cellar by force. When the fire was out and the smoke dispersed, Collingwood got into the flue himself and inspected it, and advised Corney either to have a new flue or an induction fan at the base of the chimney. As a temporary expedient he lit a fire of paper in the base of the chimney, pushing the paper in at the base of the sweep hole which was then uncovered. At this point Collingwood advised the sweeps ( in the presence of Corney and the caretaker ) to seal up both the inspection chamber and the sweep hole before they started the fire going again. He also apparently told them that if the fire was on in the boiler while they were sealing up the sweep hole, they ought not to stay long in the alcove while sealing it up. He said in the witness-box that the sweeps took no notice of his advice and asserted that they knew about the risks better than he did. On Friday, the 12th December, the fire was apparently relit and burned all day. No one seems to have been inconvenienced. The inspection chamber in the floor was sealed up, but when Mr Corney arrived in the evening to pay the sweeps for their work he found that the sweep hole in the chimney was still open. The sweeps said that they had no cement available to do this job, and Corney arranged with them to return the next morning and finish it by sealing up the hole. He kept back £3 out of their pay to ensure completion. He then left, as did the sweeps, apparently leaving the fire burning. From this point there is no evidence. It seems certain that the sweeps did procure some cement that night and returned to the cellar to complete the job then instead of waiting as arranged till the next morning. There is no evidence whether the caretaker was aware of this activity. The learned Judge thought he was. It seems that the sweeps entered the alcove to cement a cover on the sweep hole while the fire was still burning, and there encountered a concentration of carbon monoxide gas which overpowered and killed them. Their bodies were discovered by the caretaker early the next morning. It appears that the fire was then still burning, and so he must have stoked it in the night. On these facts the widows of the sweeps sue the occupier. The plaintiffs' case as presented to us in this court rests solely on the fact that on the Friday the fire of the stove was lit by the caretaker ( the occupier's agent ) in the face of Collingwood's advice not to relight it till the two vents were sealed. The Judge held there was a breach of duty for which the occupier was liable, but which was mitigated by the contributory negligence of the sweeps, who knew all the risks as well as the occupier himself. He seems to have thought the plaintiffs' fault to lie not in lighting the fire on Friday, but in a failure to see that it was put out. The issue in the case depends entirely on the Occupiers' Liability Act of 1957. The sweeps were "visitors" and were therefore owed "the common duty of care". This is defined by Section 2 subsection (2) of the Act in these words:

"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 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"

(b) in these terms:

"An occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so"

. Here the "person" is a chimney sweep, and the first question is : Would such a person appreciate and guard against the risk of carbon monoxide gas? I should have thought that this was a special risk ordinarily incident to the trade of sweep. There was no evidence on this point except that of the sweeps themselves, who said they knew all about this kind of risk. Clearly, however, they did not appreciate the degree of risk for they did not guard against it; but I should have thought that the occupier was entitled to take their word and was entitled to expect that they would take sufficient precautions having regard to the emphatic warnings of the occupier's agent, Collingwood, given the previous day. He said that he told them of the risks of these gases more than once. Whether this fact would absolve the occupier from his duty of care, he himself having caused the fire to be lit in the face of Collingwood's advice, may perhaps "be doubtful. In my judgment the case in the end depends on section 2 subsection (4), which is in these terms:

"In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that ( for example ) - (a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe"

. There seems to me no doubt that the sweeps had been warned by the occupier through his agent, Collingwood, of the danger which killed them. That, however, as the section says does not withou t more absolve the occupier from liability. The crucial question is whether, in all the circumstances, the warning was "enough to enable the visitors" ( that is, the sweeps )"to be reasonably safe". In my judgment,it was. The occupier did not request or even authorise the sweeps to close the sweep hole while the fire was alight. Mr Corney did not expect the return of the sweeps on Friday night; they told him they were coming back in the morning. He had arranged that they should do the work on Saturday morning. He said also that he anticipated that the fire burning on Friday night would be out by Saturday morning, thus making the work safe. It is true that the caretaker apparently did not let the fire out, and it is said that Corney failed in his duty because he did not expressly order the caretaker to do so, nor did he expressly forbid the sweeps to attempt the work with the fire on. Nevertheless, these sweeps knew as much about the danger as he did. There was no obligation on than to proceed without drawing the fire, they were free to do so, and they deliberately chose to assume the risk notwithstanding the advice given. In these circumstances, we ought to determine that the occupier did discharge the common duty of care, and in my view the plaintiff widows cannot succeed in their claim I would allow the appeal. LORD JUSTICE PEARSON: I am sorry to be unable to agree with my brethren in the conclusion that they have reached. I think the difference of opinion is only as to the interpretation of the evidence, and not as to any question of law. The arrangements for the disposing of the smoke and fumes from the boiler fire were at all material times defective. The smoke and fumes had to descend about 2 ft. 4 ins. from the boiler pipe into the flue, and the flue was too wide ( 24 ins. in diameter ) and too long ( 70 or 80 ft. ) and made of unsuitable material, stoneware, which tends to cause condensation. Consequently there was trouble in what I will call the starting period, that is to say, the period from the moment of lighting the fire until a good fire and a good draught were established. In the starting period the flue and the chimney were not properly warmed up, and the smoke and fumes were not sufficiently drawn along the flue to the chimney, and tended to escape through the boiler itself through any available aperture or leak into the atmosphere of the cellar. The smoke and fumes were likely to contain carbon monoxide gas. There is, however, no evidence of any accident prior to the fatal accident giving rise to these proceedings. In April 1958 the firm of Mr Sheldon, who gave evidence, were called in to deal with this starting trouble. He said they had trouble with the boiler, mainly in lighting it, on quite a few occasions. Smoke and fumes escaped into the cellar. Air Sheldon's firm did repairs, and advised that, when the boiler was lit, there should also be a fire made in a dustbin alongside the base of it in order to warm, it up. On the 9th December 1958 there was further trouble. Apparently the boiler was being started, but it was not going well, and there was a lot of smoke because the smoke was not getting away as it should. Mr Gardner, a boiler engineer, was called in, and he advised that the flues should be cleaned. Consequently the two deceased brothers, who were chimney sweeps, were summoned to do the cleaning. The elder brother, Donald Roles, crawled inside the horizontal flue. Mr Gardner told him that he should take care and not go in when the inspection chamber had just been opened, but Roles replied that he knew, as he had been a flue cleaner for many years, and he knew what he was doing. The cleaning of the flue did not cure the trouble. Accordingly, another expert, Mr Collingwood, was called in on Thursday, 11th December 1958. He found there was a lot of smoke in the cellar, the fire having been lit. He advised that the fire should be withdrawn, and that was done. He also advised everyone to get out of the premises altogether into the fresh air. The two deceased ignored his advice, and one of them jumped down into the inspection chamber. Mr Collingwood went over to them and warned them against doing that, but they used foul language and told him they knew better; that they had been in the business all their life and did not need advice. Mr Collingwood more or less dragged them into the open air. Mr Collingwood had a discussion with Mr Corney, the son-in-law of the defendant, who was the proprietor of the Assembly Rooms, and advised that a new flue should be put in, or alternatively an induction fan should be provided at the base of the chimney to draw the smoke and fumes along the flue into the chimney. Now I come to the crux of the case. Mr Collingwood advised that the two access vents which had been opened up - that is to say, the inspection chamber in the middle of the flue and the sweep hole in the side of the chimney -must be sealed, and that this must be done before the boiler fire was lit. That advice was given to "everyone who was there" - certainly, on the evidence, to the two deceased and to Mr Corney. As to the caretaker, he either heard the advice, or he should have had it passed on to him by Mr Corney. There was also advice from Mr Collingwood to the deceased that they were not to stay too long in the alcove while they were sealing up the sweep hole in the chimney. I do not think that meant that he expected them to be sealing up the sweep hole at a time when the boiler fire was burning, as that would be inconsistent with the previous and main advice that the access vents should be sealed before the boiler fire was lit up. It would be wise not to stay too long in the alcove whether or not the fire was burning, as there might be pockets of carbon monoxide lingering in the confined space of the alcove. Mr Collingwood himself lit a temporary fire for testing the movement of the gases. He lit a fire with paper in the bottom of the chimney, and the effect of it was to draw the gases along the flue into the chimney. It may be that for the purposes of this test there was also a fire in the boiler, but if so, it was only temporary. Despite the advice which had been given by Mr Collingwood, some agent of the defendant ( presumably the caretaker ) on Friday, the 12th December lit the boiler fire, got it started and kept it going, although the access vents, or at any rate one of them, the sweep hole, had not been sealed. Mr Collingwood had warned the defendant's agent not to do that. There is evidence showing why it was dangerous. Mr Brierley, another expert, in his deposition at the inquest, which was used as part of his evidence in the action, said this:

"The fact that the hot gases must decend 2 ft. 4 ins. and travel along 70 ft. of horizontal flue before entering the vertical flue, will result in the draught being difficult to establish and consequently the boiler being difficult to light. During the early periods of firing, prior to the draught being established adequately, it is inevitable that the products of the combustion will be discharged into the basement at any point of leakage from the boiler, flue or chimney. If carbon monoxide is present in the products of combustion at this stage, lethal concentrations will readily be produced"

. On this occasion there was the added defect of a hole in the chimney. The effect of that must have been to diminish still further the efficiency of the system, and to prolong the starting period in which smoke and fumes were escaping into the atmosphere of the cellar and evidently putting some carbon monoxide into it. A concentration of 4 parts in 1,000 is enough carbon monoxide to be lethal to a human being in about ten minutes. By starting the fire in the boiler before the access vents had been sealed, the defendant's agents were creating that danger unnecessarily for the deceased chimney sweeps who were going to complete the sealing of the access vents. Mr Corney came to the Assembly Rooms on the afternoon of Friday about 5 to 6 o'clock to pay the sweeps. He retained £3 as they had not completed the work, the cover of the sweep hole not having been cemented on. They said that they had not the necessary cement to complete the job, and it was too late that evening to obtain any, and they would therefore complete it the following morning when the builders' yards were open, and they could get the necessary cement. Mr Corney thought that the boiler fire would have to be put out on Saturday morning for the work on the sweep hole to be done. The boiler fire, however, would have to be lit again on Saturday as the Assembly Rooms were to be used on Saturday evening, and the central heating would need to be in operation. In the event, the deceased must have found some cement somewhere on Friday evening. They came back to the Assembly Rooms on that evening, presumably with the knowledge of the caretaker, and started to fix with cement the cover of the sweep hole, although the boiler fire was burning; they were overcome with carbon monoxide fumes, and they died. Their bodies were found on the following morning in the alcove. There was an overturned bucket of cement. On the face of one of the bodies there was a breathing mask made of cotton wadding fitted on a small clip covering the nostrils and the mouth, and fastened round the head with elastic bands. This mask was probably useless. The questions to be decided arise under section 2 of the Occupiers' Liability Act 1957. Under subsection (2) of the section the occupier has "the common duty of care" to his visitors: that is to say, " 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 in using the premises for the purpose for which he is invited or permitted by the occupier to be there". Prima facie there was a breach of that subsection by the occupier - that is to say, the defendant in this case - because the lighting of the fire before the sealing of the access vents had been completed created a serious and unnecessary danger for the deceased who were lawful visitors, invited to the premises for the purpose of doing this work. The lighting of the fire at that time caused smoke and fumes containing carbon monoxide to enter the air of the cellar , and doubtless to linger in pockets in enclosed places, including the alcove. Clearly on the balance of probabilities this was the cause, or at any rate a cause, of the fatal accident. Subsection (3) of section 2 provides, so far as material:

"The circumstances relevant for the present purpose include the degree of care, and want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases-(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so"

. In my view, "such a visitor" means a visitor of the relevant class, in this case chimney sweeps. The defendant, as occupier, was entitled to expect that the deceased, in the exercise of their calling as chimney sweeps, would to some extent appreciate and guard against the carbon monoxide risk. In fact it appears that they did have some appreciation of the risk, and tried to guard against it because the face mask was used. But in my view, the actual risk in this case resulting from the use of a defective installation, when it had a serious additional defect, was not "ordinarily incident" to the sweeps' calling. It was an extra-ordinary risk, as Mr Collingwood's vigorous actions and emphatic warnings on Monday, the 11th December, sufficiently show. Sweeps are not expert chemists or engineers, and it would be wrong to attribute to them a high degree of expert knowledge. Moreover, the defendant, as occupier, had not left the deceased free to guard against the risk adequately, if I have correctly understood the true nature of the risk. As I understand the evidence of Mr Brierley ( which the learned Judge appears to have accepted ) the risk did not consist of doing the work on the sweep hole cover while the boiler fire was burning well. At such a time the chimney would be hot, and would be duly drawing the smoke and fumes from the boiler along the flue into and up the chimney; and at the sweep hole there would be an intake of air into the chimney and not an output of smoke and fumes from the chimney into the alcove. The risk arose, so to speak, from an event of past history. The boiler had been lit, and the dangerous starting period had elapsed, at a time when the defective installation was rendered still more defective by the hole in the chimney, and the fatal accident shows that carbon monoxide had been left behind in the alcove. The deceased could not adequately guard against that risk. It can only be said that they would have had a better chance if they had postponed the completion of the work until Saturday morning because there would by then have been more time for the lingering pockets of carbon monoxide to disperse. The fire could have been put out on Saturday morning, but there is no evidence that that would in itself have removed the carbon monoxide from the alcove. In my view, therefore, the widows' claims are not defeated by section 2 subsection (3) (b) of the Act.

(a) is material, read as follows :

"In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that ( for example ) - (a) where damage is caused to a visitor by a danger of which he has been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe"

. Substantially the same facts provide the plaintiff with their answer to the defendants argument under this subsection. The deceased received adequate warning from Mr Collingwood, and if the defendants agents had heeded the warning, the warning would have enabled the deceased to be reasonably safe. But the defendant's agents themselves, in disregard of the warning, did the dangerous act of lighting the fire before the access vents had been sealed. That created the concentration of carbon monxide in the alcove. That was something done by the defendant's agents, and it could not be undone by the deceased, however much they heeded Mr Collingwood's warning. In these circumstances, the warning did not enable the deceased to be reasonably safe; and in my view, therefore, this paragraph of the subsection. does not defeat the widows' claim. Accordingly, I agree with the learned Judge's decision on the liability of the defendant, and do not have to consider his decision as to contributory negligence because that is not disputed. I would have dismissed the appeal, but that is a minority view, and of course, the majority view of my bretheren will prevail, so that the appeal will be allowed.

[2]In the Assembly Rooms there was a central heating boiler in which coke was used as a fuel. The boiler had been manufactured in 1929, and was thus nearly thirty years old. There was an old system of flues to carry away the smoke and fumes. One of these was a horizontal flue 24 ins. in diameter which ran from the boiler for 70 ft. along under the floor. That led into a vertical flue 18 ins. in diameter which went up a chimney 80 ft. in height. In the horizontal flue there was an inspection chamber under a slab in the floor. In the vertical flue there was a "sweep-hole" about 12 ins. in diameter and 9 ft. above the ground.

[3]It was sometimes very difficult to get this boiler lighted up. The difficulty was to get a draught going along the flues. When it was first lighted, smoke and fumes got into the atmosphere, which cleared off when the fire got going well. In April 1958 some repairs were carried out, and a firm of builders gave this advice:

"If it smokes, light a fire at the foot of the flue to create a draught"

[4]Now coke, when burning, gives off carbon monoxide gas, which is very dangerous because it cannot be seen or smelt. It is a stealthy killer. This should be known to everyone who has anything to do with boilers. On the Tuesday, when the sweeps arrived, Mr Gardner warned them of the danger from the fumes, but they took no notice. He described how they acted: "Donald crawled into the horizontal flue I told him he should take care and not go in when the thing was just open. Give it a chance to clear out a bit, but he said he knew; he was a flue cleaner for many years, and he knew what he was doing. So we do not interfere with people who know what they are doing".

[5]The fire was let out, and on the Wednesday the sweeps cleaned out the flue. On the Thursday the boiler was lit up again, but still there was trouble with the fumes and the smoke. So they called in an expert, Mr Collingwood. When Mr Collingwood got there he saw the fumes and smoke, and he gave another warning; he advised that the fire should be withdrawn at once. He told everyone to get out of the place altogether and get some fresh air. The two flue sweeps were not prepared to accept Mr Collingwood's advice. He described what took place; "I ordered everybody out, and they just jumped into the hole, and that was it. I went over to them and warned them against this, and I got foul language".

[6]Mr Collingwood went on to say: "I ordered them out and told them the danger of the gas, and the use of it, and they said that they knew a damn sight better; they had been in this business all their life; they did not need my advice".

[7]He said that he repeated his warning two or three times, and added: "They eventually came out, under duress. I had to more or less drag them out".

[8]After Mr Collingwood had made his inspection, the boiler was lit again. He created a draught by lighting a bit of paper at the bottom of the vertical shaft so as to get it hot. But that was only a temporary expedient. He advised a permanent remedy, either a new flue or an induction fan in the base of the chimney. A new flue would cost a lot of money. So they decided on an induction fan. This could not be provided at once, so they would have to light it up for a time without the fan. Mr Collingwood then gave another warning which is crucial in this case. He advised the two sweeps, Mr Corney and everyone there that the two vent holes (the inspection chamber and the sweep-hole) were to be sealed up before the boiler was lit up. "I repeated this warning", he said, "quite a few times to everyone that was there, not only the Roles brothers. That was to everyone in the place of the danger of these gases".

[9]But the attitude of the sweeps, he said, throughout was that they were experts, and they really knew better than Mr Collingwood himself.

[10]It does appear, however, that Mr Collingwood did contemplate the possibility that the boiler might be lit before the holes were sealed up. He said that from his own practical experience he thought that he could seal the holes with the fire on. He thought the sweeps could have done it, but said: "It depends entirely how long they were in there. I myself could have gone in there and sealed them off and come back out again, but I certainly would not have stayed in there any length of time".

[11]He advised the sweeps, he said, while they were sealing up, not to stay too long in the alcove.

[12]So much for the warnings that were given. On Friday, the 12th December, the fire was lighted. We do not know by whom, but perhaps by the caretaker. The sweeps were working there that day with the fire on. On Friday evening Mr Corney and Mr Gardner went there. The sweeps had very nearly completed their work, but they had not finished sealing up the sweep-hole in the vertical shaft. Mr Corney said: "The job was not complete in as much as the cover over the flue hole was not cemented on".

[13]He asked the sweeps about it. They said they had not enough cement to do it. It was too late to complete it then, but they would get the necessary cement the following morning from a builder's yard and complete the job. So Mr Corney left thinking they would come back the next morning (the Saturday morning) to finish off the job. The Judge asked him: "With the fire still on ? (A) I did not think that could have been done with the fire alight. I was under the impression the fire would be out in the morning when they came back to do the job".

[14]It now turns out that the sweeps must have got their cement that evening, and they must have come back later that night. Maybe the caretaker let them in. They came back and attempted to seal up the sweep-hole with an old dustbin lid and with cement. The fire was on at the time. Whilst they were doing this, they were overcome by fumes and died. Their bodies were found next morning. One body was just in the alcove, and the other a little way out, as though he had been trying to pull his workmate out of the alcove. One of them had on his nose a mask of wadding with a nose clip. And so they died. When the police inspected the boiler between 8 and 9 o'clock in the morning, the fire was found to be brightly burning.

[15]It is quite plain that these men died because they were overcome by fumes of carbon monoxide. It would appear to a layman that the fumes must have come from the sweep-hole, but the Judge on the evidence thought they probably came from the boiler. But I do not think it matters. The fumes came from the boiler or the sweep-hole or both. The question is whether anyone was at fault.

[16]The Judge found Mr Corney guilty of negligence because "he failed to take such care as should have ensured that there was no fire lit until the sweep-hole had been sealed up". He said: "Unfortunately Mr Corney did not tell the caretaker to draw the fire, or at any rate not to stoke it up".

[17]On this account he held that Mr Corney was at fault, and the occupier liable. But he found the two sweeps guilty of contributory negligence, and halved the damages. The Judge said: "That negligence" – that is to say, of the chimney sweeps - "consisted in the knowledge that there was gas about, or probably would be, the way they ignored explicit warnings and showed complete indifference to the danger which was pointed out to them in plain language, and this strange indifference to the fact that the fire was alight, when Mr Collingwood had said it ought not to be, until the sweep-hole had been sealed".

[18]The occupier now appeals and says that it is not a case of negligence and contributory negligence, but that, on the true application of the Occupiers' Liability Act 1957, the occupier was not liable at all. This is the first time we have had to consider that Act. It has been very beneficial. It has rid us of those two unpleasant characters, the invitee and the licensee, who haunted the courts for years, and it has replaced them by the attractive figure of a visitor, who has so far given no trouble at all. The Act has now been in force six years, and hardly any case has come before the courts in which its interpretation has had to be considered. The draughtsman expressed the hope that "the Act would replace a principle of the common law with a new principle of the common law ; instead of having the Judgment of Mr Justice Willes construed as if it were a statute, one is to have a statute which can be construed as if it were a Judgment of Mr Justice Willes". It seems that his hopes are being fulfilled. All the fine distinctions about traps have been thrown aside and replaced by the common duty of care. "The common duty of care", the Act says, "is to take such care as in all the circumstances of the case is reasonable to see that the visitor" - note the visitor, not the premises - "will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there".

[19]That is comprehensive. All the circumstances have to be considered. But the Act goes on to give examples of the circumstances that are relevant. The particular one in question here is in subsection (3) of section 2: "The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases ... (b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so".

[20]That subsection shows that the case of Christmas v. Caledonian Club (1952 volume 1 King's Bench Division, page 141) is still good law under this new Act. There a window cleaner (who was employed by independent contractors) was sent to clean the windows of a club. One of the windows was defective; it had not been inspected and repaired as it should have been. In consequence, when the window cleaner was cleaning it, it ran down quickly and trapped his hand, thus causing him to fall. It was held that he had no cause of action against the club. If it had been a guest who had his fingers trapped by the defective window, the guest could have recovered damages from the club. But the window cleaner could not do so. The reason is this: The householder is concerned to see that the windows are safe for his guests to open and close, but he is not concerned to see that they are safe for a window cleaner to hold on to. The risk of a defective window is a special risk, but it is ordinarily incident to the calling of a window cleaner, and so he must take care for himself, and not expect the householder to do so. Likewise in the case of a chimney sweep who comes to sweep the chimneys or to seal up a sweep-hole. The householder can reasonably expect the sweep to take care of himself so far as any dangers from the flues are concerned. These chimney sweeps ought to have known that there might be dangerous fumes about and ought to have taken steps to guard against them. They ought to have known that they should not attempt to seal up the sweep-hole whilst the fire was still alight. They ought to have had the fire withdrawn before they attempted to seal it up, or at any rate they ought not to have stayed in the alcove too long when there might be dangerous fumes about. All this was known to these two sweeps; they were repeatedly warned about it, and it was for them to guard against the danger. It was not for the occupier to do it, even though he was present and heard the warnings. When a householder calls in a specialist to deal with a defective installation on his premises, he can reasonably expect the specialist to appreciate and guard against the dangers arising from the defect. The householder is not bound to watch over him to see that he comes to no harm. I would hold, therefore, that the occupier here was under no duty of care to these sweeps, at any rate in regard to the dangers which caused their deaths. If it had been a different danger, as for instance if the stairs leading to the cellar gave way, the occupier might no doubt be responsible, but not for these dangers which were special risks ordinarily incidental to their calling.

[21]Even if I am wrong about this point, and the occupier was under a duty of care to these chimney sweeps, the question arises whether the duty was discharged by the warning that was given to them. This bring us to subsection (4) which says: "In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) - (a) where damage is caused to a visitor by a danger of which he has been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe".

[22]We all know the reason for this subsection. It was inserted so as to clear up the unsatisfactory state of the law as it had been left by the decision of the House of Lords in Horton v. London Graving Dock (1951 Appeal Cases, page 737). That case was commonly supposed to have decided that, when a person comes on to premises as an invitee, and is injured by the defective or dangerous condition of the premises (due to the default of the occupier), it is nevertheless a complete defence for the occupier to prove that the invitee knew of the danger, or had been warned of it. Supposing, for instance, that there was only one way of getting into and out of premises, and it was by a footbridge over a stream which was rotten and dangerous. According to Horton's case, the occupier could escape all liability to any visitor by putting up a notice:

"This bridge is dangerous", even though there was no other way by which the visitor could get in or out, and he had no option but to go over the bridge. In such a case, section 2 subsection (4) makes it clear that the occupier would not be liable. But if there were two footbridges, one of which was rotten, and the other safe a hundred yards away, the occupier could still escape liability, even today, by putting up a notice: "

Do not use this footbridge. It is dangerous. There is a safe one further upstream". Such a warning is sufficient because it does enable the visitor to be reasonably safe.

[23]I think that the law would probably have developed on these lines in any case; see Greene v. Chelsea Borough Council (1954 volume 2 Queen's Bench Division, page 127) where I ventured to say at page 139: "Knowledge or notice of the danger is only a defence when the plaintiff is free to act upon that knowledge or notice so as to avoid the danger".

[24]But the subsection has now made it clear. A warning does not absolve the occupier unless it is enough to enable the visitor to be reasonably safe.

[25]Apply subsection (4) to this case. I am quite clear that the warnings which were given to the sweeps were enough to enable them to be reasonably safe. The sweeps would have been quite safe if they had heeded these warnings. They should not have come back that evening and attempted to seal up the sweep-hole while the fire was still alight. They ought to have waited till next morning, and then they should have seen that the fire was out before they attempted to seal up the sweep-hole. In any case they should not have stayed too long in the sweep-hole. In short, it was entirely their own fault. The Judge held that it was contributory negligence. I would go further and say that under the Act the occupier has, by the warnings, discharged his duty.

[26]I would therefore be in favour of allowing this appeal and entering Judgment for the defendants.

LORD JUSTICE BARMAN : The facts of this case remain lamentably obscure, partly because the two chief actors whose acts or defaults have caused the claim to be made by their widows (the plaintiffs) are dead, and. partly because of the disappearance of the caretaker at the relevant time of the building where the tragedy occurred. Moreover, there has been a great delay in starting the action, and the events were over four years old at the time of the trial. This may make it more difficult for the plaintiffs to prove their case, but in my judgement they must accept that disadvantage, which is largely of their own making.

[28]The facts, so far as known, seem to be as follows. The Manchester Assembly Rooms were the property of, and occupied by, the former defendant, Herbert A. Nathan. This building in 1958 was heated by radiators served by a coke boiler in the cellar, itself in use since 1929, but which succeeded an even older one whose flue and the chimney which carried off the smoke and fumes were still in use and ill-adapted to a coke system. There was running from the boiler under the floor of the cellar a long flue which had in it an inspection chamber under a flagstone and went into an upright chimney whose base was in a small alcove on the other side of the cellar. About 9 ft up this chimney was a circular sweep hole 14 ins in diameter. The upright chimney carried the smoke and by-products 80 ft. up to the open air. The old flue and chimney often gave trouble. The difficulty was to get the fire alight, there being no adequate draught so long as the flue was cold. This is trouble occured in April 1958, when some repairs were done, and the caretaker was advised to heat the base of the chimney by lighting a fire outside it in a dustbin, thus creating a draught.

[29]In December 1958, when the boiler was relit, there was further trouble. A heating engineering was consulted, who decided that the flue needed cleaning, whereupon the two dead men, who were brothers and chimney sweeps in partnership, were called in. On Tuesday, the 9th December 1958, they removed the flagstone over the inspection chamber, and although the fire was only just out, they ignored the cautions of the heating engineer and entered the flue which one of them declared to be blocked. The sweeps worked on this on Wednesday, the 10th December, and on Thursday the 11th, an attempt to relight the fire was made. Further trouble at once ensued, the cellar being filled with smoke. At this juncture the occupier's agent, one Corney, consulted a person called Collingwood, who was expert in the management of boilers and flues. On arrival he had the fire drawn, and declared the flue to be dangerous because of the gases generated. He ordered everyone out of the cellar. This was a novel doctrine, no danger having been previously suspected, only lighting difficulties. The sweeps became abusive, asserting that they knew better than Collingwood, and one of them actually jumped into the flue. Collingwood insisted on the danger from gas, and even himself removed them from the cellar by force.

[30]When the fire was out and the smoke dispersed, Collingwood got into the flue himself and inspected it, and advised Corney either to have a new flue or an induction fan at the base of the chimney. As a temporary expedient he lit a fire of paper in the base of the chimney, pushing the paper in at the base of the sweep hole which was then uncovered. At this point Collingwood advised the sweeps ( in the presence of Corney and the caretaker ) to seal up both the inspection chamber and the sweep hole before they started the fire going again. He also apparently told them that if the fire was on in the boiler while they were sealing up the sweep hole, they ought not to stay long in the alcove while sealing it up. He said in the witness-box that the sweeps took no notice of his advice and asserted that they knew about the risks better than he did.

[31]On Friday, the 12th December, the fire was apparently relit and burned all day. No one seems to have been inconvenienced. The inspection chamber in the floor was sealed up, but when Mr Corney arrived in the evening to pay the sweeps for their work he found that the sweep hole in the chimney was still open. The sweeps said that they had no cement available to do this job, and Corney arranged with them to return the next morning and finish it by sealing up the hole. He kept back £3 out of their pay to ensure completion. He then left, as did the sweeps, apparently leaving the fire burning. From this point there is no evidence. It seems certain that the sweeps did procure some cement that night and returned to the cellar to complete the job then instead of waiting as arranged till the next morning. There is no evidence whether the caretaker was aware of this activity. The learned Judge thought he was. It seems that the sweeps entered the alcove to cement a cover on the sweep hole while the fire was still burning, and there encountered a concentration of carbon monoxide gas which overpowered and killed them. Their bodies were discovered by the caretaker early the next morning. It appears that the fire was then still burning, and so he must have stoked it in the night. On these facts the widows of the sweeps sue the occupier.

[32]The plaintiffs' case as presented to us in this court rests solely on the fact that on the Friday the fire of the stove was lit by the caretaker ( the occupier's agent ) in the face of Collingwood's advice not to relight it till the two vents were sealed. The Judge held there was a breach of duty for which the occupier was liable, but which was mitigated by the contributory negligence of the sweeps, who knew all the risks as well as the occupier himself. He seems to have thought the plaintiffs' fault to lie not in lighting the fire on Friday, but in a failure to see that it was put out.

[33]The issue in the case depends entirely on the Occupiers' Liability Act of 1957. The sweeps were "visitors" and were therefore owed "the common duty of care". This is defined by Section 2 subsection (2) of the Act in these words: "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 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".

[34]Some of the circumstances are stated in subsection (3) (b) in these terms: "An occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so".

[35]Here the "person" is a chimney sweep, and the first question is : Would such a person appreciate and guard against the risk of carbon monoxide gas? I should have thought that this was a special risk ordinarily incident to the trade of sweep. There was no evidence on this point except that of the sweeps themselves, who said they knew all about this kind of risk. Clearly, however, they did not appreciate the degree of risk for they did not guard against it; but I should have thought that the occupier was entitled to take their word and was entitled to expect that they would take sufficient precautions having regard to the emphatic warnings of the occupier's agent, Collingwood, given the previous day. He said that he told them of the risks of these gases more than once. Whether this fact would absolve the occupier from his duty of care, he himself having caused the fire to be lit in the face of Collingwood's advice, may perhaps "be doubtful.

[36]In my judgment the case in the end depends on section 2 subsection (4), which is in these terms: "In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that ( for example ) - (a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe".

[37]There seems to me no doubt that the sweeps had been warned by the occupier through his agent, Collingwood, of the danger which killed them. That, however, as the section says does not withou t more absolve the occupier from liability. The crucial question is whether, in all the circumstances, the warning was "enough to enable the visitors" ( that is, the sweeps )"to be reasonably safe". In my judgment,it was. The occupier did not request or even authorise the sweeps to close the sweep hole while the fire was alight. Mr Corney did not expect the return of the sweeps on Friday night; they told him they were coming back in the morning. He had arranged that they should do the work on Saturday morning. He said also that he anticipated that the fire burning on Friday night would be out by Saturday morning, thus making the work safe. It is true that the caretaker apparently did not let the fire out, and it is said that Corney failed in his duty because he did not expressly order the caretaker to do so, nor did he expressly forbid the sweeps to attempt the work with the fire on. Nevertheless, these sweeps knew as much about the danger as he did. There was no obligation on than to proceed without drawing the fire, they were free to do so, and they deliberately chose to assume the risk notwithstanding the advice given.

[38]In these circumstances, we ought to determine that the occupier did discharge the common duty of care, and in my view the plaintiff widows cannot succeed in their claim

[39]I would allow the appeal. LORD JUSTICE PEARSON: I am sorry to be unable to agree with my brethren in the conclusion that they have reached. I think the difference of opinion is only as to the interpretation of the evidence, and not as to any question of law. The arrangements for the disposing of the smoke and fumes from the boiler fire were at all material times defective. The smoke and fumes had to descend about 2 ft. 4 ins. from the boiler pipe into the flue, and the flue was too wide ( 24 ins. in diameter ) and too long ( 70 or 80 ft. ) and made of unsuitable material, stoneware, which tends to cause condensation. Consequently there was trouble in what I will call the starting period, that is to say, the period from the moment of lighting the fire until a good fire and a good draught were established. In the starting period the flue and the chimney were not properly warmed up, and the smoke and fumes were not sufficiently drawn along the flue to the chimney, and tended to escape through the boiler itself through any available aperture or leak into the atmosphere of the cellar. The smoke and fumes were likely to contain carbon monoxide gas. There is, however, no evidence of any accident prior to the fatal accident giving rise to these proceedings.

[40]In April 1958 the firm of Mr Sheldon, who gave evidence, were called in to deal with this starting trouble. He said they had trouble with the boiler, mainly in lighting it, on quite a few occasions. Smoke and fumes escaped into the cellar. Air Sheldon's firm did repairs, and advised that, when the boiler was lit, there should also be a fire made in a dustbin alongside the base of it in order to warm, it up. On the 9th December 1958 there was further trouble. Apparently the boiler was being started, but it was not going well, and there was a lot of smoke because the smoke was not getting away as it should. Mr Gardner, a boiler engineer, was called in, and he advised that the flues should be cleaned. Consequently the two deceased brothers, who were chimney sweeps, were summoned to do the cleaning. The elder brother, Donald Roles, crawled inside the horizontal flue. Mr Gardner told him that he should take care and not go in when the inspection chamber had just been opened, but Roles replied that he knew, as he had been a flue cleaner for many years, and he knew what he was doing.

[41]The cleaning of the flue did not cure the trouble. Accordingly, another expert, Mr Collingwood, was called in on Thursday, 11th December 1958. He found there was a lot of smoke in the cellar, the fire having been lit. He advised that the fire should be withdrawn, and that was done. He also advised everyone to get out of the premises altogether into the fresh air. The two deceased ignored his advice, and one of them jumped down into the inspection chamber. Mr Collingwood went over to them and warned them against doing that, but they used foul language and told him they knew better; that they had been in the business all their life and did not need advice. Mr Collingwood more or less dragged them into the open air. Mr Collingwood had a discussion with Mr Corney, the son-in-law of the defendant, who was the proprietor of the Assembly Rooms, and advised that a new flue should be put in, or alternatively an induction fan should be provided at the base of the chimney to draw the smoke and fumes along the flue into the chimney.

[42]Now I come to the crux of the case. Mr Collingwood advised that the two access vents which had been opened up - that is to say, the inspection chamber in the middle of the flue and the sweep hole in the side of the chimney -must be sealed, and that this must be done before the boiler fire was lit. That advice was given to "everyone who was there" - certainly, on the evidence, to the two deceased and to Mr Corney. As to the caretaker, he either heard the advice, or he should have had it passed on to him by Mr Corney. There was also advice from Mr Collingwood to the deceased that they were not to stay too long in the alcove while they were sealing up the sweep hole in the chimney. I do not think that meant that he expected them to be sealing up the sweep hole at a time when the boiler fire was burning, as that would be inconsistent with the previous and main advice that the access vents should be sealed before the boiler fire was lit up. It would be wise not to stay too long in the alcove whether or not the fire was burning, as there might be pockets of carbon monoxide lingering in the confined space of the alcove. Mr Collingwood himself lit a temporary fire for testing the movement of the gases. He lit a fire with paper in the bottom of the chimney, and the effect of it was to draw the gases along the flue into the chimney. It may be that for the purposes of this test there was also a fire in the boiler, but if so, it was only temporary.

[43]Despite the advice which had been given by Mr Collingwood, some agent of the defendant ( presumably the caretaker ) on Friday, the 12th December lit the boiler fire, got it started and kept it going, although the access vents, or at any rate one of them, the sweep hole, had not been sealed.

[44]Mr Collingwood had warned the defendant's agent not to do that. There is evidence showing why it was dangerous.

[45]Mr Brierley, another expert, in his deposition at the inquest, which was used as part of his evidence in the action, said this: "The fact that the hot gases must decend 2 ft. 4 ins. and travel along 70 ft. of horizontal flue before entering the vertical flue, will result in the draught being difficult to establish and consequently the boiler being difficult to light. During the early periods of firing, prior to the draught being established adequately, it is inevitable that the products of the combustion will be discharged into the basement at any point of leakage from the boiler, flue or chimney. If carbon monoxide is present in the products of combustion at this stage, lethal concentrations will readily be produced".

[46]On this occasion there was the added defect of a hole in the chimney. The effect of that must have been to diminish still further the efficiency of the system, and to prolong the starting period in which smoke and fumes were escaping into the atmosphere of the cellar and evidently putting some carbon monoxide into it. A concentration of 4 parts in 1,000 is enough carbon monoxide to be lethal to a human being in about ten minutes. By starting the fire in the boiler before the access vents had been sealed, the defendant's agents were creating that danger unnecessarily for the deceased chimney sweeps who were going to complete the sealing of the access vents.

[47]Mr Corney came to the Assembly Rooms on the afternoon of Friday about 5 to 6 o'clock to pay the sweeps. He retained £3 as they had not completed the work, the cover of the sweep hole not having been cemented on. They said that they had not the necessary cement to complete the job, and it was too late that evening to obtain any, and they would therefore complete it the following morning when the builders' yards were open, and they could get the necessary cement. Mr Corney thought that the boiler fire would have to be put out on Saturday morning for the work on the sweep hole to be done. The boiler fire, however, would have to be lit again on Saturday as the Assembly Rooms were to be used on Saturday evening, and the central heating would need to be in operation.

[48]In the event, the deceased must have found some cement somewhere on Friday evening. They came back to the Assembly Rooms on that evening, presumably with the knowledge of the caretaker, and started to fix with cement the cover of the sweep hole, although the boiler fire was burning; they were overcome with carbon monoxide fumes, and they died. Their bodies were found on the following morning in the alcove. There was an overturned bucket of cement. On the face of one of the bodies there was a breathing mask made of cotton wadding fitted on a small clip covering the nostrils and the mouth, and fastened round the head with elastic bands. This mask was probably useless.

[49]The questions to be decided arise under section 2 of the Occupiers' Liability Act 1957. Under subsection (2) of the section the occupier has "the common duty of care" to his visitors: that is to say, " 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 in using the premises for the purpose for which he is invited or permitted by the occupier to be there". Prima facie there was a breach of that subsection by the occupier - that is to say, the defendant in this case - because the lighting of the fire before the sealing of the access vents had been completed created a serious and unnecessary danger for the deceased who were lawful visitors, invited to the premises for the purpose of doing this work. The lighting of the fire at that time caused smoke and fumes containing carbon monoxide to enter the air of the cellar , and doubtless to linger in pockets in enclosed places, including the alcove. Clearly on the balance of probabilities this was the cause, or at any rate a cause, of the fatal accident.

[50]Subsection (3) of section 2 provides, so far as material: "The circumstances relevant for the present purpose include the degree of care, and want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases-(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so".

[51]In my view, "such a visitor" means a visitor of the relevant class, in this case chimney sweeps. The defendant, as occupier, was entitled to expect that the deceased, in the exercise of their calling as chimney sweeps, would to some extent appreciate and guard against the carbon monoxide risk. In fact it appears that they did have some appreciation of the risk, and tried to guard against it because the face mask was used. But in my view, the actual risk in this case resulting from the use of a defective installation, when it had a serious additional defect, was not "ordinarily incident" to the sweeps' calling. It was an extra-ordinary risk, as Mr Collingwood's vigorous actions and emphatic warnings on Monday, the 11th December, sufficiently show. Sweeps are not expert chemists or engineers, and it would be wrong to attribute to them a high degree of expert knowledge. Moreover, the defendant, as occupier, had not left the deceased free to guard against the risk adequately, if I have correctly understood the true nature of the risk. As I understand the evidence of Mr Brierley ( which the learned Judge appears to have accepted ) the risk did not consist of doing the work on the sweep hole cover while the boiler fire was burning well. At such a time the chimney would be hot, and would be duly drawing the smoke and fumes from the boiler along the flue into and up the chimney; and at the sweep hole there would be an intake of air into the chimney and not an output of smoke and fumes from the chimney into the alcove.

[52]The risk arose, so to speak, from an event of past history. The boiler had been lit, and the dangerous starting period had elapsed, at a time when the defective installation was rendered still more defective by the hole in the chimney, and the fatal accident shows that carbon monoxide had been left behind in the alcove. The deceased could not adequately guard against that risk. It can only be said that they would have had a better chance if they had postponed the completion of the work until Saturday morning because there would by then have been more time for the lingering pockets of carbon monoxide to disperse. The fire could have been put out on Saturday morning, but there is no evidence that that would in itself have removed the carbon monoxide from the alcove. In my view, therefore, the widows' claims are not defeated by section 2 subsection (3) (b) of the Act.

[53]The opening words of subsection (4), of which paragraph (a) is material, read as follows : "In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that ( for example ) - (a) where damage is caused to a visitor by a danger of which he has been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe".

[54]Substantially the same facts provide the plaintiff with their answer to the defendants argument under this subsection. The deceased received adequate warning from Mr Collingwood, and if the defendants agents had heeded the warning, the warning would have enabled the deceased to be reasonably safe. But the defendant's agents themselves, in disregard of the warning, did the dangerous act of lighting the fire before the access vents had been sealed. That created the concentration of carbon monxide in the alcove. That was something done by the defendant's agents, and it could not be undone by the deceased, however much they heeded Mr Collingwood's warning. In these circumstances, the warning did not enable the deceased to be reasonably safe; and in my view, therefore, this paragraph of the subsection. does not defeat the widows' claim.

[55]Accordingly, I agree with the learned Judge's decision on the liability of the defendant, and do not have to consider his decision as to contributory negligence because that is not disputed.

[56]I would have dismissed the appeal, but that is a minority view, and of course, the majority view of my bretheren will prevail, so that the appeal will be allowed.

ORDER

Appeal allowed. Judgment below set aside and in lieu thereof Judgment entered for Defendants. No order for costs. Leave to appeal to House of Lords refused Plaintiffs' costs to be taxed under Third Schedule to Legal Aid and Advice Act, 1949. THE MASTER OF THE ROLLS : This case arises out of a tragic accident which took place on Friday, 12th December, 1958, when two chimney sweeps were overcome by fumes, and died in the basement of the Manchester Assembly Rooms. Their widows bring the action against the occupier, Mr Nathan, claiming that he was at fault and in breach of the duty of care which is now laid down by the Occupiers' Liability Act of 1957. It is very unfortunate that this case was tried so long after the accident. The action was not commenced until 2½ years after the accident, and not tried till four years after. In the intervening time the caretaker, a most important witness, had disappeared without trace. So the court, after this length of time, is in great difficulty in ascertaining the facts. ORDER: Appeal allowed. Judgment below set aside and in lieu thereof Judgment entered for Defendants. No order for costs. Leave to appeal to House of Lords refused Plaintiffs' costs to be taxed under Third Schedule to Legal Aid and Advice Act, 1949.

MARY ELLEN ROLES (Widow) (Administratrix of the estate of Donald Roles deceased) v Plaintiff [1963] EWCA Civ 6

The Judge asked him:

The Judge said:

(b) in these terms:

(a) is material, read as follows :

ORDER

Cited in 3 later judgments