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DIY and the law of negligence and occupier's liability

This article discusses how the law of negligence and occupier's liability affects a person who carries out do-it-yourself work in his or her own home. That is, it describes the circumstances in which you, the householder, might be held responsible for injuries sustained by your visitors, if you don't perform the work to a sufficiently high standard. Please bear in mind that there are many other legal provisions that affect work done on domestic premises — planning law, obligations between landlord and tenant, special regulations that apply to gas installation, window replacement, etc. None of these areas of law is covered in this article, which is only concerned with the safety of visitors to the premises. That doesn't mean they aren't important, but they present a different kind of problem for the householder than the one this article deals with.

Please bear in mind also that this article is no substitute for proper legal advice, and is not intended to be.

Introduction

Consider this scenario... You find that a electrical socket in your house has a cracked faceplate, so you decide to replace it. You buy a new one, and fit it as carefully as you can. However, you don't realize that the socket is too deep to fit properly in the box in the wall, and while you are pushing it into place, a live conductor comes out of its terminal, and gets trapped between the faceplate and the wall. Later, a man from the gas company comes around to read your meter, and leans his hand on the dodgy socket. He gets a mild electrical shock, which causes him to stand up suddenly and bang his head on something. Owning to this bang on the head, he trips over and breaks his leg. The leg does not heal properly, and has to be amputated. The unfortunate man is no longer able to work, and his marriage fails. As a result of these setbacks, he becomes psychotic and has to be institutionalized, probably for the rest of his life. So, three years after your minor electrical mishap, you are presented with a claim for compensation of five million pounds, to cover personal injury, psychiatric injury, loss of earnings, and institutional care for forty years. Leaving aside the practical question of whether you can afford to pay this compensation — you almost certainly can't — how much of it are you liable to pay, if any?

Anyone who undertakes DIY activities that might pose a risk if not carried out properly should have at least a basic understanding of the law of negligence and occupier's liability. These are complex subjects, and this article can do no more than give a superficial introduction. Moreover, this article only discusses those circumstances that give rise to an action in tort between private individuals. By this I mean the kind of situations where you could be sued by a visitor injured on your premises as a result of your incompetent DIY activities. I am using the word 'visitor' in a broad sense here; it includes not only a person you invite to your home, but also a person who has a right to enter (even a policeman executing a search warrant!) and also a person who should not be there at all (a trespassor). I will have more to say about these different categories of visitor later. You will probably be aware that certain work is regulated by statute because of its type (e.g., gas fitting) or because of its scale (e.g, extending a building). Breaking these statutory provisions may amount to a criminal offence (that is, one that would interest the police), or may be subject to action by the local authority; however, these regulations do not really affect the obligation that you, as a property owner or occupier, have towards other individuals on your premises. Similarly, if you live in rented accomodation, you probably have contractual obligations to your landlord. Again, this is a separate area of law entirely, and does not significantly affect your obligation to visitors.

Basic principles

A person who has suffered injury on your premises, allegedly as a result of your DIY activities, will have to show three things. First, he will have to show that you owed him a duty of care. Not everyone who comes onto your land will be owed a duty of care; this is an important concept that we will discuss in more detail later. If he establishes that you owed him a duty of care, he will then have to show that you did not adequately discharge that duty. In brief, this means that he will have to show that your premises were dangerous because the DIY work you carried out was not of a standard that he was reasonably entitled to expect of you. Finally, he will have to show that your defective work was the cause of his injury. This final step has two parts. The first part is quite straightforward — the claimant must show that, as a matter of fact, he would not have suffered the injury had you discharged your duty of care properly. The second part is more complicated — the claimant must show that, as a matter of law, not of fact, his injuries were not too remote from your activities. In the meter reader example, you could argue that the meter reader's marriage breakdown and psychotic illness were too remote from your wiring mishap.

It should be stressed that it is not your job to prove that you did not owe the visitor a duty of care, or that you discharged it properly, or that the visitor's injuries were too remote from the original events; it is the claimant visitor who has the burden of proving these things against you. However, you should be aware that the standard of proof is not the same as in criminal matters. If you are charged with, for example, theft, the prosecutor must show that you committed the theft, beyond reasonable doubt. The 'beyond reasonable doubt' test does not apply to tort actions, that is, actions between private individuals. The visitor must show that all the elements of his claim are in place, but he must only show this on the balance of probabilities. This means that he will succeed against you if he can show that it is more likely than not that you are responsible for his injuries.

So let's examine the three things the visitor has to prove against you: the duty of care, the breach of that duty, and the causative relationship between your breach of duty and his injury.

To whom do you have a duty of care?

In general, you might be liable for injuries sustained by anyone who visits your premisies, with or without your permission. You may be surprised to find that you could be made to pay compensation to a person who was undeniably as trespasser on your land. If the trespasser is there with obvious criminal intent — that is, he is a burglar — it is fairly unlikely that you will be held liable for his injuries. However, it is far from impossible, and you should bear this in mind before electrifying your doorhandles as a burglar deterrent.

Where lawful visitors are concerned, you do have a duty of care. There is no question about this. The Occupier's Liability Act (1957) says that your duty is:

''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.''
You might be able to avoid this duty in a number of ways. First, you could say that you are not the 'occupier' of the premises. For example, if the visitor was injured in a detached garage some distance form your house, you could argue that you were not the occupier of that garage. This argument is unlikely to succeed. The 1957 Act does not actually define what an 'occupier' is; this definition is left to the principles already established by the courts. The most important case for these purposes is Wheat v Lacon. In that case it was determined that an 'occupier' is someone who has sufficient control over the premises to be able to decide what goes on there. While you may not 'occupy' your detached garage in the strict sense, you are almost certainly in control of it. If your garage has become dangerous because of, say, the action of vandals then you might escape liability on other grounds, but you are still the occupier.

Another way to avoid the duty of care is to attempt to show that the land you occupy is not 'premises'. Your garden shed, for example, might not constitute 'premises' in the sense you normally understand the word to convey. However, the 1957 Act defines premises to mean 'any fixed or moveable structure', and this meaning has been held by a court to include a ladder; so you're probably not going to get very far that way.

If you are a tenant, then arguably the duty of care in some cases applies to your landlord, rather than to yourself. The relevant test is whether you are 'in control' of the premises. This will depend to a large extent on the terms of your lease.

In reality, if you are the owner-occupier of a house, or occupy under a long lease, then you probably cannot avoid having a duty of care to lawful visitors, and you will have to base your defence on something else. The situation is somewhat different for trespassers.

Whether you owe a trespasser a duty of care is determined by the Occupier's Liability Act (1984). If a trespasser is injured on your premises, to establish that you owe him a duty of care he will have to show three things. First, he will have to show that you were aware, or ought reasonably to have been aware, that trespassers were likely to enter your land. Second, he will have to show that you were aware, or ought reasonably to have been aware, of the danger. Third, he will have to convince the court that it was reasonable for you to protect him against that danger. In reality, the standard required of a householder in respect of trespassers is quite low. However, if you know that a section of your garden wall is falling down because you haven't mixed the mortar properly, and you know that people routine walk through your garden as a shortcut to the shops, then you might be held to have a duty of care to prevent the wall falling on trespassers. This does not mean that a trespasser injured by your badly-mortared wall will automatically succeed against you, but it does mean that he will have jumped over the first hurdle — establishing that you owed him a duty of care. He still has to jump the other two hurdles, and we come onto this in a moment.

It is a slight complication that, although the 1957 protects people who are 'lawful visitors' to your premises, it does not define who is, or is not, a lawful visitor. You should not necessarily assume that a person is a trespasser just because you did not explicitly invite him in. For example, the courts generally assume that anyone has a right to walk up your front path. So if you pave your front path and leave a slab sticking up, and someone trips over it, you will been deemed to owe that person a duty of care. A much more complex issue, and one that there isn't really space to do just to here, is whether people who you tolerate on your land, but don't welcome, are trespassers or not. In Lowery v Walker the court decided that members of the public who used a path across the occupier's land were not trespassers, even though there were signs on the path that made it perfectly clear that they were unwelcome. The occupier knew of the trespass, and had done nothing beyond posting the signs to prevent it. Moreover, the trespassers were very often customers of the occupier's business. The court therefore held that they had implied permission to be there. On the other hand, in Edwards v British Railways Board, a boy who climbed onto a railway line was held to be a trespasser, even though the railway authority knew perfectly well that this sort of trespass was common. The difference in this case was that the authority had taken all the steps it could to keep people out. It had, for example, maintained stout fences and repaired them when they were broken. In short, if you do nothing to prevent people trespassing on your land, a court may determine that they are not trespasser at all. You should be aware that this applies particularly where children are concerned. The Edwards case notwithstanding, the courts have historically been extremely reluctant to decide that children are trespassers.

One final point concerning duty of care: the Defective Premises Act (1972) creates two additional duty of care situations not covered by the 1957 or 1984 Acts which might be relevant in a DIY context. The first is that a person who 'enlarges' a dwelling house has an obligation to anyone who later acquires that premises. So if, for example, you construct an extension to your house, and you later sell the house and the extension falls down, you could be liable to the purchaser. The second situation applies if you are a landlord, that is, you do work on premises that you let to someone else. If the terms of the tenancy are that you retain the right, or duty, to maintain the property, then you will be liable to the tenant for any defects in your work.

Were you in breach of the duty of care?

So, let's assume that your visitor has jumped through the first hoop, and shown that you owed him a duty of care. Either he was a lawful visitor, or a trespasser subject to a danger that you should reasonably have prevented, or a trespasser you impliedly allowed onto your land. He must now show that you were in breach of your duty of care.

You may have noticed that the definition of duty of care in the 1957 Act contains the word 'reasonable' twice: ''...to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe...'' This emphasises that your duty is not an absolute one. You don't have to follow your visitors around so they don't trip over the edges of rugs or anything like that. You only have to behave as a reasonable householder.

There are two gotchas here. First, the law of tort, whose province we are in, holds up an entirely objective standard of behaviour. That is, you may believe it is 'reasonable' to set bear traps to catch burglars, but society as a whole does not. It will be the job of the judge to decide what society expects, as negligence cases are never heard by juries these days. And, let's face it, judges are hardly representative of any section of society that you or I are likely to come into contact with. So, if your incompetent DIY activities cause an injury, your quality of work will be assessed against a standard set by a guy who wears a horsehair wig to work. The objective nature of the law of negligence is well illustrated by the notorious case of Nettleship v Weston, in which a driving instructor successfully sued his pupil for injuries caused by the pupil's incompetent driving. The court held that the standard of a 'reasonable driver' is an objective standard — there is one standard for everybody. The fact that the pupil had had only three driving lessons was irrelevant. You can't escape liability by claiming that you were doing your best, if your best is not good enough. In general, a 'reasonable' householder employs someone to fix his broken mains outlets, he doesn't do it himself. This leads us to the second problem — in general, the courts believe that a person who holds himself out as possessing a particular skill should do work of a quality that is compatible with that level of skill. So if, for example, you elect to do electrical work, or gasfitting, or putting up brick walls, you must do it to at least as high a level of skill as a professional. This was stressed in the case of Wells v Cooper, where a DIY enthusiast had replaced a doorhandle, and had used screws which were possibly not long enough. The doorhandle came away in a visitor's hand, causing him to fall down some stairs. The judge said that Mr Cooper should be judged against the standard of a reasonable carpenter, not a reasonable DIY enthusiast. In the end, it was decided that Mr Cooper had discharged his duty of care — the claimant was not able to show that a reasonable carpenter would not have used screws of the same size.

You don't have to do work that is of the same standard as the best of the profession, merely of a standard that is compatible with that profession. This principle strikes a lot of people has harsh; after all, if I do work to the best of my ability, and exercise all due care, it isn't my fault if it turns out that someone gets injured, is it? However, it's important to undertand this is the law of tort, not criminal law. It isn't concerned with blame, but with deciding who should bear the loss. It's either going to be you or the injured visitor, and blameworthiness doesn't really come into it. After all, the learner driver in Nettleship was not 'to blame' for the accident in any ethical sense, but the loss fell on her (or — and this may be the key to the matter — on her insurers).

In short, if you do DIY activities which may put another person's safety at risk, you must work to the standard compatible with that kind of work; if your honest best is not good enough, then you may well end up being successfully sued.

Did your breach of duty cause the visitor's injuries?

Having established that you did not work to a standard that is compatible with what the work demanded, the visitor must now show that his injury was caused by your inadequate work. As I said before, there are two parts to this — 'factual' cause and 'legal' cause. Showing factual cause is usually straightforward. If the visitor would not have sustained injury but for your breach of duty, factual cause is proved. There are occasional difficulties here in other areas of tort law, but in occupier's liability cases it is usually quite clear. Legal causation is a different matter. In the example I gave at the start of this article, the unfortunate meter reader suffered a whole string of misfortunes, all of which ultimately can be traced back to the same factual cause — the dodgy wiring. If the wiring had been safe, the chain of events would never have been set in motion. For many years the position in English law was that the occupier would have been liable for all loss or damage that flowed form the original event. However, in the famous Wagon Mound cases, new principles were established. In short, a person who is in breach of a duty of care will be reasonable for all injuries and losses that are of a reasonably foreseeable type that would follow from that breach. However, so long as the type of injury is forseeable, the extent of injury does not have to be. In Hughes v Lord Advocate, a boy who was tinkering with an oil lamp that had been left in the street set off an improbable series of events that let to him being badly burned. The court accepted that this series of events was not reasonably forseeable, but the injury suffered by the boy (severe burns) was of the same type as that which should have been forseeable (minor burns).

In the example of the meter reader, it could be argued, I think, that the visitor's electic shock, head injury, and broken leg are forseeable, and the DIY'er will be held liable for them. At the current rates, compensation in the region of £3-5000 would probably be payable. The leg amputation is less clear. If the reason for the amputation were some latent medical problem with the claimant, than you probably would be held liable. The general rule in the law of negligence is that you take your victim as you find him. If you were held liable for such an eventuality, you'd be looking at a serious bill. However, the marriage breakdown and the psychotic illness are probably not reasonably forseeable consequences of an electric shock, and you would probably not be liable for these.

What next?

Assuming that your injured visitor is able to prove that you were in breach of a duty of care, and that some or all his injuries were the forseeable consequence of that breach, is there anything else you can do to avoid liability? There are, in fact, a number of well recognized defences to an action of this type: limitation, consent, exclusion, and contributory negligence.

First, limitation. By statute, an action to recover damages for personal injury must be brought within three years. There are all kinds of complicated provisions governing when the three year period starts — it isn't necessarily the date of the original accident, but in simple cases it usually will be.

Next, consent. If you can show that the person who suffered injury was fully aware of the risk, and consented to take it, then you will not be liable. The legal jargon for this is to say that the visitor is volens (or volenti, but this is dodgy latin grammar). However, the consent must be informed, and freely given. If you say to a visitor ''I'd advise you not to come in — I've taken up all the floorboards in the hall and you might fall into a hole and injure yourself'', and the visitor still decides to come in, then any injuries he sustains that can reasonably be attributed to missing floorboards are probably his own problem. This argument will probably not succeed if the visitor is a child; it will certainly not succeed if you do not make the extent of the risk obvious.

The next possible defence you may have is that of 'exclusion', although this will rarely apply in a domestic setting. For exclusion to work, you will ordinarily have a contractual relationship with the visitor, in which the visitor agrees to waive his rights to legal action. Exclusion might also apply if you have large, obvious notices to the effect that anyone who enters your premises must do so at his own risk. However, most householders would feel a bit awkward about having a large sign to the effect of Abandon all hope, ye who enter here over their front doors. In any case, the 1957 Act specifically states that warnings will not get the occupier off the hook, unless in all circumstances they are adequate to ensure the safety of the visitor. As a matter of principle, as a private individual you can lawfully exclude liability for personal injury, whereas a business can not, whatever the visitor purports to agree to. However, unless visitors specifically state that they are willing to relieve you of liability, the defence will rarely be useful in practice.

Finally, there is the pseudo-defence of contributory negligence. This is not a complete defence, because it does not remove your liability; but if the court finds against you, it might reduce the compensation you have to pay if it thinks that the visitor is partially to blame for the accident. The reduction is entirely at the discretion of the court, but the general rule is that a visitor is expected to take reasonable care for his own well-being. If, for example, it is patently obvious that you removed all the floorboards and scattered them around with the nails pointing upwards, then you could argue that the visitor should have more sense than to try to walk around them. This won't relieve you of liability altogether, but might reduce the amount of compensation you have to pay when the visitor steps on a nail.

Conclusion

As a householder you have a duty to take reasonable steps to ensure that your premises are safe for visitors, and even for trespassers in some circumstances. If you undertake repairs and home improvement yourself, you will be required to do the work to the same standard as a person in that line of work. It isn't enough that you take all reasonable care, if your honest best is not good enough. However, you aren't required to work to the highest standards of the relevant profession — ordinary professional skill is enough.
Copyright © 1994-2013 Kevin Boone. Updated May 14 2010