Anthony Gold Solicitors
15 JUL 2014
Adele Shtern v Monica Cummings  UKPC 18 – Occupiers’ Liability – duty of care, landowner’s liabilities, visitors
The claimant was injured when she received an electric shock from a hotel refrigerator. She pursued damages from the hotel owner, manager and the landowner upon which the hotel was built. The case was dismissed but the decision reversed by the Court of Appeal of Jamaica save for the landowner who was found not to be negligent because she was not present, not the owner of the hotel and not responsible for the staff who had day to day control. The Privy Council agreed stating no duty of care as the landowner no operation control over the hotel.
10 June 2014
Lady Hale JSC, Lord Wilson JSC, Lord Sumption JSC, Lord Toulson JSC, Lord Hodge JSC
The second defendant who is the respondent in this appeal, was the owner of land on which the hotel stands. She lived in Americamainly, but visited Jamaica from time to time and stayed at her property on thesame site as the hotel. She had a refrigerator delivered to the hotel officefor her use when staying in Jamaica. Paying guests also had access to its use with approval of the hotel. The claimant was a paying guest at the hotel when she received an unexpected electric shock from the appliance in February 1996 and claimed damages for her injuries and losses from the hotel owner, manager and landowner.
Expert evidence from engineers was obtained for both parties but only a number of years after the accident. As a result the experts were unable to agree on what had caused the accident. There were also allegations of the claimant bringing a false claim for financial gain. The claim was dismissed due to the paucity of the evidence given.
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The Court of Appeal of Jamaica reversed the decision but not in respect of the landowner,the second defendant, as the evidence suggested she was not the owner of the hotel or responsible for the staff and had no operational involvement despite being the owner of the land and a director.The company running the hotel was found to have failed in ensuring proper maintenance of the appliance. The claimant appealed.
In upholding the original decision the Privy Council decided that no duty of care was owed because the landowner could not be considered as an occupier of the hotel forthe purposes of the Occupiers Liability Act 1957. She was not in operational control of the hotel.
This was a long running case which concerned some interesting points of law and in particular,the tests to be applied when determining an occupier for the purposes of the Occupiers Liability Act 1957. The fact that someone may own a land upon whichan accident occurs is not in itself sufficient to make them liable. There has to be a degree of operational control. However, the duty imposed on anyoccupier is to ensure the premises are “reasonably” safe for lawful visitors.
If this accidenthad occurred in the defendant’s private residence and the appliance was used solely by paying guests with her consent, the outcome of this case would have been very different.