Bailey v Armes & another [1999]

A couple were not liable under the Occupiers’ Liability Acts for injury caused to a friend of their son who played on a neighbouring roof with him as they were not in occupation of the roof.

A couple occupied a flat above a supermarket where one of the couple was employed. They occupied it on terms that permitted the employee’s family to live in the flat under a service occupancy. The main bedroom looked out on a largely flat roof (not included in the service accommodation) which covered a row of outbuildings forming part of the supermarket. Most of the roof was bounded by walls, but an area at the far end, (furthest from the bedroom window) was not surrounded by walls. The far end was also the only part of the roof that was sloping.
The couple did not have a garden, so allowed their nine year old son to play on the roof. The boy had been given strict instructions not to play at the far end (the part that was unfenced and sloping), and not to invite other children on to the roof. The employer who owned the roof was unaware that the boy went on the roof.

The couple’s son played with another child (aged eight) in a garden adjacent to the property. They had permission of the owner. From the garden, the two children climbed a wall and accessed the roof, and then used the slope as a slide. The eight year old fell off the roof, and sustained serious head injuries. The parents of this child brought proceedings against the couple, and the employer who owned the roof.
The trial judge held that no one was liable, and the parents appealled against the judgments given in favour of the couple.

HELD: The Court of Appeal dismissed the appeal, as the couple had not been in occupation of the roof. They had not exercised a sufficient degree of control over it to be considered the occupiers, and therefore they did not owe a duty of care in respect of this area under the Occupers’ Liability Act. 


Citation: [1999] EWCA Civ 767