• In the case of Roles v Nathan [1963] 1 W.L.R. 1117, it was held that repeated warnings were enough to make a premises reasonably safe for workers. Furthermore, the occupier was under no duty of care to the workers. because the risk that manifested was a special risk ‘ordinarily incident’ to the worker’s occupation and one they should be expected to guard against.

Facts of the Case

  • D owned assembly rooms heated by a coke burning boiler.
  • On 9th December 1958, smoke flowed into the boiler room after the boiler was lit.
  • A boiler engineer advised that the flues needed cleaning and C (two brothers) were hired to clean them. Despite being cleaned, smoke escaped again the next day.
  • On 11th December D called in a second expert. He ordered everyone out of the boiler room. C ignored his order. The expert had removed C by force.
  • The expert instructed that the inspection chamber and the sweep hole should be sealed up before the boiler was lit. He gave C another warning of the danger of fumes.
  • The following day, D’s agent went to the boiler room and found the boiler alight. C had nearly finished cleaning but had not sealed the sweep hole due to lacking cement. C said that they would return the next day.
  • C returned with cement to complete their work that same night. Both were found dead from carbon monoxide poisoning the next morning.

Issues

  • Had D discharged their duty of care to C under the Occupier’s Liability Act 1957 by giving repeated warnings of the danger of fumes?

Held by the Court of Appeal

  • Finding for D, that on the facts the warnings were enough to make C reasonably safe and so afforded D a defence within the 1957 Act. D was under no duty of care because the risk was incidental to the C’s calling within the Act, and therefore C should have been expected to guard against it.

Lord Denning M.R.

  • “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 a sweep-hole whilst the fire was still alight…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…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” [1123].

Pearson L.J. Dissenting

  • The questions to be decided arise under the 1957 Act. Under subsection (2) the occupier has ‘the common duty of care’ to his visitors: to take such reasonable care as in all the circumstances to see that visitors will be reasonably safe in using the premises for the purposes for which they are invited.
  • D breached this duty by lighting the fire before the sealing of the access vents had been completed. This created a serious and unnecessary danger for C. The fire at that time caused fumes containing carbon monoxide to enter the air of the cellar. Clearly on the balance of probabilities this was the cause, or at least a cause, of the deaths.

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