Wheat v E Lacon & Co Ltd [1966] UKHL 1

Mr Wheat, a paying guest in a public house, fell down an internal back staircase and died. His widow sued the brewery owners under the Occupiers’ Liability Act 1957. The House of Lords held the brewery were occupiers but had not breached the common duty of care.

Facts

Mr and Mrs Wheat, their daughter and Mrs Wheat’s parents stayed for a week at the Golfer’s Arms public house in Great Yarmouth from 30 August 1958. The premises were owned by E. Lacon & Co Ltd (the brewery). The ground floor operated as a public house managed by Mr Richardson for the brewery. The first floor contained the Richardsons’ private living accommodation and bedrooms, used in summer to accommodate paying guests for Mrs Richardson’s private profit.

The first floor was U-shaped, with a front staircase from a street entrance marked “Private” and a back staircase leading down to a small vestibule and then to a yard at the rear. There was no direct access from the ground floor bars to the first floor.

On the evening of 4 September 1958, around 9 p.m., the Wheats returned to the first floor. Mr Wheat, aged 42 and in good health, went to obtain soft drinks. He had earlier remarked that it would be simpler to reach the bars by using the back stairs rather than going out to the street entrance and re‑entering via the bar.

Shortly afterwards he was found lying on the floor of the vestibule at the bottom of the back stairs. The floor was concrete covered with linoleum. He had suffered a fractured skull and later died. The surgeon reported a bruise and underlying fracture on the left side of his head, extending to the base of the skull, with no other injuries on his body, and stated that the injuries were consistent with a fall from ground level or down stairs.

The back staircase was steep and narrow, with 14 steps, each tread 9 inches deep, and walls on both sides down to just above the last two steps, which were within the slightly wider vestibule. A grooved handrail was fixed to the left wall but ended immediately above the third step from the bottom and had no terminal knob; there was therefore no handrail alongside the bottom two steps. No witness described the staircase itself as dangerous; the only unusual feature was the shortened handrail.

Lighting at the top of the back staircase consisted of two ceiling lights on the landing: one near the bathroom and one directly above the head of the stairs. At the time of the accident, the bulb in the light above the top of the stairs was missing. Illumination came from the bathroom light and any remaining daylight through a window at the top of the stairs and the glass upper panel of the door at the bottom, though no light from the window reached the lower stairs or vestibule.

Evidence about lighting conditions was mixed. Mrs Wheat said it was “getting quite dark” when they returned. An expert, Mr Hunt, who descended the stairs on a comparable evening with the top light off, said he could see the first few treads dimly but that the bottom was “quite dark” so that he could not see the handrail. Another witness, Mr Ginn, described using a match to see Mr Wheat on the vestibule floor when looking in from the yard side, but when later looking down from the first-floor landing he could see the staircase, steps and handrail even though the stair light was out.

No physical marks indicated where on the stairs the fall began. A police inspector found no sign that Mr Wheat’s head had struck any part of the staircase or walls, and there were no marks on the vestibule door.

Mrs Wheat sued the brewery, Mr Richardson and Mrs Richardson, claiming damages under the Fatal Accidents Acts 1846–1908 and the Law Reform (Miscellaneous Provisions) Act 1934. Winn J at first instance gave judgment for all defendants. She appealed only against the brewery. The Court of Appeal, by a majority (Harman and Diplock LJJ; Sellers LJ dissenting), dismissed the appeal. She then appealed to the House of Lords.

Issues

1. Factual cause of the fall

The House had to consider whether any probable explanation of the accident could be established on the evidence, in particular whether it was more likely than not that the fall was caused by the shortened handrail and the absence of light at the top of the stairs.

Winn J had inferred that Mr Wheat fell from the second, third or fourth step from the bottom because his hand ran along the rail and then came to the end of it in darkness. He concluded:

“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 come upon the floor level,
thinking he had come to the bottom of the stairs, and as a result fell . . .”

He found two concurrent causes: the handrail ending before the bottom and “the absence of any light”.

2. Who was an “occupier” of the relevant part of the premises?

The central legal issue was whether the brewery were “occupiers” of the private upstairs portion and the back staircase for the purposes of the Occupiers’ Liability Act 1957, given that Mr Richardson occupied the public house as manager and lived in the private part with his wife, who took in paying guests.

The manager’s written agreement with the brewery:

• employed him as manager to conduct the liquor business for the brewery’s sole benefit;
• required him to obey the brewery’s lawful directions in relation to the business;
• allowed the brewery to enter the premises to inspect condition and stock;
• forbade him to part with possession of the premises or any part without the brewery’s consent;
• allowed him to occupy the public house rent‑free while employed, but expressly provided that such occupation should not create a tenancy or any estate or interest in the premises.

It was also a “generous privilege” granted by the brewery that managers could take summer visitors in the first‑floor accommodation.

3. Status of Mr Wheat as a visitor

The courts considered whether Mr Wheat, as a summer paying guest of Mrs Richardson, was a “visitor” of the brewery within section 1(2) and section 2 of the 1957 Act.

4. Scope and breach of the common duty of care

If the brewery were occupiers and Mr Wheat their visitor, the court had to decide:

• What the “common duty of care” under section 2(2) required in the circumstances with respect to the back staircase, the design of the handrail and the lighting system.
• Whether it was reasonably foreseeable that visitors might be injured when using the staircase in darkness or semi‑darkness, and whether the brewery had taken reasonable care.

Questions of contributory negligence also arose if a breach were found.

Judgment

Approach to findings of fact on appeal

Viscount Dilhorne emphasised that because there was no dispute about the primary facts and no direct evidence of how the fall occurred, appellate courts were in as good a position as the trial judge to draw inferences. Quoting Benmax v Austin Motor Co, he referred to Viscount Simonds and Lord Reid on the duty of an appellate court to form an independent opinion where only inferences from undisputed facts were in issue:

“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.”

Applying this, he held that the judge’s reconstruction of the fall was only one possibility among several and that the evidence did not justify selecting any particular mechanism as more probable than alternatives. He considered that the accident remained unexplained on the balance of probabilities.

Occupier status of the brewery and the Richardsons

Viscount Dilhorne

Viscount Dilhorne held that, notwithstanding the manager’s residence, the brewery had not divested themselves of occupation or control of the public house, including the back stairs. The agreement did not distinguish between the ground and first floors. He emphasised that the manager was required to live on the premises in the course of his employment and had no estate or interest in them.

Drawing on authorities about occupation by servants and ministers, and the distinction between servants occupying as part remuneration or for the efficient performance of duties, he cited Tindal CJ’s statement (approved in Read v Cattermole and Glasgow Corporation v Johnstons):

“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 government,
and the officers or servants are required to occupy them, with a view to the more
efficient performance of the duties imposed upon them.”

He also quoted Lord Hodson’s formulation:

“The distinction is usually shortly stated in this way: if the servant
is given the privilege of residing in the house of the master as part
of his emoluments the occupation is that 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.”

Applying these principles, he concluded that Mr Richardson’s occupation was that of a servant, and that the brewery were the occupiers of the material part of the premises for the purposes of occupiers’ liability. He agreed with Winn J and Sellers LJ on this point.

Lord Denning

Lord Denning analysed the concept of “occupier” in the law of dangerous premises. He stressed that the term denoted a person having a sufficient degree of control over premises to be under a duty of care to those coming lawfully there, that exclusive occupation was unnecessary, and that there might be more than one occupier.

He explained that by 1956 the distinction between invitees and licensees had “been reduced to vanishing point” and that the Occupiers’ Liability Act 1957 confirmed the move to a single “common duty of care”:

“The duty of the occupier had become simply a duty to take reasonable care to
see that the premises were reasonably safe for people coming lawfully on to
them: and it made no difference whether they were invitees or licensees. . . .
This duty is simply a particular instance of the general duty of care which
each man owes to his ‘ neighbour ‘ .”

He formulated the relevant test in these terms:

“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, then he is an ‘ occupier ‘ and the person
coming lawfully there is his ‘ visitor ‘ . . . 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 more may be ‘ occupiers ‘.”

He rejected as too narrow the definition that limited an occupier to “he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons”, although he accepted that a person meeting that description was certainly an occupier.

By reference to categories of landlords, licensors and independent contractors, he held that the brewery, having granted only a licence to occupy and retaining rights of repair and control, had a “residuary degree of control” akin to that in Greene v Chelsea Borough Council. They were thus occupiers of the private portion under the 1957 Act. Mr Richardson and Mrs Richardson, who had significant control and invited paying guests, were also occupiers. There was “no difficulty in having more than one occupier at one and the same time”.

Lord Morris of Borth‑y‑Gest and Lord Pearson

Lord Morris considered that both the brewery and the manager were occupiers of the premises as a whole, but that, by mutual arrangement, the brewery would not exercise day‑to‑day control over some parts. He regarded Mr Wheat and his family, as summer guests taken with the brewery’s permission, as visitors of both the brewery and the Richardsons. The content and extent of the common duty of care might nevertheless differ between them according to their respective spheres of control.

Lord Pearson similarly concluded that there was “dual occupation” of the upper part of the premises, based on the foundation of “occupational control” and the ability to know the condition of the premises and remedy or warn of dangers. Quoting Wrottesley J in Duncan v Cammell Laird on the link between occupation and control, he held that Mr and Mrs Richardson had occupational control by residence, furnishing and taking in guests, while the brewery also had occupational control through the manager’s service agreement, their right and obligation to repair, and their authority for the admission of paying guests.

Status of Mr Wheat as a visitor

Viscount Dilhorne accepted Winn J’s view that those coming to first‑floor bedrooms and to parts of the premises which they might reasonably regard as open to them as guests came there with Mrs Richardson’s invitation and with the brewery’s prior authority and tolerance. They were present as licensees of the brewery and thus visitors under the 1957 Act.

Scope and breach of the brewery’s common duty of care

Design and condition of the staircase and handrail

The staircase had been built in 1938. No accident had occurred on it in the intervening 20 years. Winn J held that its steepness was not in itself such as to make it dangerous. The only unusual feature identified was the termination of the handrail above the third step from the bottom, leaving the last two steps without an adjacent rail. An expert, Mr Hunt, thought this might create danger if a person’s hand slipped off the end of the rail.

The House considered whether this construction rendered the staircase unreasonably unsafe. Viscount Dilhorne and Lord Pearson concluded that the shortened handrail was “helpful” but not dangerous, because it was not probable or reasonably foreseeable that it would cause any accident when used with proper care. Lord Denning noted “overwhelming” evidence that no one had reason before the accident to consider the handrail dangerous.

Lighting and the missing bulb

The brewery had provided a light fitting at the top of the back stairs, switchable from the top and bottom, and an “ample supply of bulbs”. The bulb’s absence at the time of the accident was unexplained. Winn J found its removal, by whomever effected, to be a novus actus, and held there was no basis to find that Mrs Richardson knew in time to replace it. The House accepted that neither the brewery nor the Richardsons could reasonably be blamed for the act of an unknown stranger or for the sudden absence of the bulb.

Viscount Dilhorne accepted that the brewery ought to have foreseen that a visitor might use the staircase unlit, for example because the visitor could not find the switch. However, he considered that even unlit the staircase was not objectively dangerous to someone taking proper care: it was steep but straight, and a careful person could descend safely by ensuring each foot was on something solid before placing weight on it. He stated that the brewery could not reasonably be expected to foresee that a person would, on reaching the end of the handrail in darkness, step forward in confidence assuming he had reached the floor without being able to see it.

He cited with approval Diplock LJ’s observation that:

“My neighbour does not enlarge my duty to care
for his safety by neglecting it himself.”

Foreseeability and reasonable care

Lord Pearson stressed that it was “not reasonably foreseeable” that such an accident would happen. He considered the staircase an ordinary back staircase, not intended for frequent guest use, safe for familiar users in any light, and safe for unfamiliar users in daylight or when properly lit. In darkness or semi‑darkness, a reasonable unfamiliar user would either refrain from using the staircase or proceed with extreme care, feeling for each step or pausing until their eyes adjusted. It was not to be expected that a person would descend relying solely on the assumption that the handrail extended to the bottom and step out “with confidence” as soon as the rail ended.

Lord Morris likewise held that the brewery had not negligently provided a staircase unsafe for use. In daylight the staircase was safe; an electric light had been provided for night use; and in over 20 years no accident had occurred. He did not consider that reasonable care required the brewery to anticipate and eliminate the possibility that someone unfamiliar might in darkness assume that the end of the handrail meant the staircase had ended and step forward without testing.

Lord Denning distinguished the scope of the brewery’s duty in the private portion from their more extensive obligations on the ground floor. In the private area, they were obliged to ensure that the structure, including the handrail, and the lighting system were reasonably safe, but could leave the day‑to‑day matter of switching lights on and placing rugs to the Richardsons. Since the handrail had never previously proved dangerous and the bulb’s removal was attributable to an unknown stranger, he found no breach on the brewery’s part.

Contributory negligence

Although the House ultimately rested its decision on absence of breach, Viscount Dilhorne observed that, if the accident had occurred as Winn J suggested, Mr Wheat would have been guilty of a “very high degree of contributory negligence” in descending an unfamiliar and poorly lit staircase and stepping out “with confidence” when he could not see the bottom or the floor.

Implications

The decision clarifies several key points in the law of occupiers’ liability:

• Definition of “occupier” under the Occupiers’ Liability Act 1957: An occupier is any person with a sufficient degree of control over premises that failure to exercise reasonable care may result in injury to lawful entrants. Exclusive occupation is unnecessary; there may be multiple occupiers, each owing the common duty of care according to their respective control.
• Servants’ occupation as that of the master: Where a servant is required to reside on premises for the performance of duties and has no estate or independent interest, his occupation is that of the employer, who remains the occupier for liability purposes.
• Dual or multiple occupation: The case confirms that owners, managers and others may simultaneously be occupiers of the same premises, with differing responsibilities depending on the nature and extent of their control.
• Scope of the common duty of care: The duty is to take reasonable care to secure visitors’ safety “in all the circumstances”. It does not require occupiers to guard against highly unlikely misuse of premises or against unforeseeable acts of strangers, such as the sudden, unknown removal of a light bulb.
• Foreseeability and user care: The case underlines that occupiers are not obliged to protect visitors against every conceivable mischance; the law assumes visitors will exercise ordinary care for their own safety, and a visitor’s failure to do so does not expand the occupier’s duty.

Overall, the House of Lords affirmed that the brewery were occupiers and owed the common duty of care but that the staircase and lighting arrangements satisfied that duty. The unexplained accident, absent evidence of a foreseeable danger or system failure, did not establish negligence.

Verdict: Appeal dismissed; the House of Lords held that E. Lacon & Co Ltd were occupiers owing a common duty of care but had not breached that duty, so they were not liable in negligence for Mr Wheat’s fatal fall.

Source: Wheat v E Lacon & Co Ltd [1966] UKHL 1