Apportioning liability

The High Court recently considered the apportionment of liability following a fatal accident involving an inflatable art installation. The case highlights the need for local authorities to consider carefully relationships with third parties, say Karen Grant and Andrew Caplan.

In the case of Furmedge and others v Chester-le-Street District Council and others [2011] EWHC 1226, Dreamspace V was an artistic creation of the late Maurice Agis. It was described as an interactive public art event and comprised a substantial inflatable PVC structure covering half the area of a football pitch. When it was inflated, people could walk through tunnels and voids between interconnected units. Mr Agis had no engineering or technical qualifications or expertise and had never properly assessed whether the anchorage for the structure was adequate.

In July 2006, when the structure was installed in Riverside Park in Chester-le-Street, a gust of wind caused it to break free from its anchorage and lift into the air. Two people died as a result of the injuries they sustained. The trial was concerned with the apportionment of responsibility between the local authority with responsibility for the park and the events company, Brouhaha International Ltd.

Held

Mr Justice Foskett carefully reviewed the roles of the Council and Brouhaha. He held that, on the facts of this case, Brouhaha had become an occupier of the structure within the meaning of the Occupiers’ Liability Act 1957. This was based on a combination of factors, including that through its employees it played an active and central role in the construction of the structure, it erected the structure in Chester-le-Street, its employees acted as stewards and it should have appreciated that any failure by it to use care in relation to the structure could cause injury to people using it. In addition, Brouhaha owed a duty of care to the Claimants in negligence. It was not necessary to determine whether the Council was also an occupier, as it had accepted liability for not carrying out its own risk assessment.

Liability was apportioned between the Council and Brouhaha in accordance with the provisions of s.2(1) Civil Liability (Contribution) Act 1978, with the key, but not sole, issue being each party’s causative responsibility. In reaching an apportionment, some weight was placed on the knowledge previously gained by Brouhaha of the potential for instability. Foskett J apportioned liability at 45% to the Council and 55% to Brouhaha.

Comment

There is little doubt that Mr Agis had the greatest responsibility for this tragic accident, but given that he did not have insurance and left no money in his estate, it fell to the Council and Brouhaha to meet these claims – a stark reminder to consider such relationships with third parties.

The case highlights the importance of risk assessments in Occupiers’ Liability Act cases. Whilst not required by the Act, they are increasingly being sought by the courts and can go far to support a defendant’s repudiation.

Finally, it is worth mentioning that Brouhaha was a non-profit making charity and a small organisation, both points raised by the Court. Such characteristics, however, did not absolve them from their duty to take the necessary steps to ensure visitors were safe and, ultimately, did not prevent them from being found liable for the greater share of liability. Interestingly there appears to have been no reference by them to the Compensation Act 2006, which may have well been useful, being drafted with such organisations in mind.

Karen Grant is an assistant solicitor and Andrew Caplan is a partner at Kennedys. Andrew can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it. or on 0845 838 4805, while Karen can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. or on 0845 838 4838.