Swain v Natui Ram Puri [1996] PIQR P442
Court of Appeal, 4 July 1995. The case is also referred to as Swain v Puri.
The Court of Appeal rejected a child trespasser’s claim following a fall through a factory roof. The central issue was what an occupier must know before owing a duty under section 1(3)(b) of the Occupiers’ Liability Act 1984. It was insufficient to show merely that the occupier ought to have discovered facts suggesting that children might reach the danger.
The accident and claim
A nine-year-old boy entered disused industrial premises in Hull with his older brother. They climbed a seven-foot perimeter fence at a point where barbed wire was missing, using an adjoining wall for footholds. They then climbed further obstacles to reach the roofs. The boy fell through a skylight and suffered serious injuries.
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The premises were for sale and an agent visited to show prospective buyers around. The occupiers’ knowledge that the roof was dangerous was conceded. However, it was not suggested that they knew about the gap in the wire or about trespassing on the premises. Ognall J rejected evidence of earlier repeated roof trespass and dismissed the claim. The boy appealed.
The statutory distinction
Section 1(3) sets conditions for an occupier’s duty to someone who is not a visitor. These concern awareness of the danger, knowledge or reasonable grounds for believing that the person is or may come near it, and whether the risk is one against which the occupier may reasonably be expected to offer protection. Establishing that the premises contain a danger does not, by itself, establish the separate condition concerning the presence of people near that danger.
The appeal focused on section 1(3)(b). The claimant argued that having reasonable grounds for belief should include circumstances in which an occupier ought to have known that children might come into the vicinity of the danger. He also argued that a narrower interpretation would encourage occupiers to avoid inquiries about their premises.
The Court of Appeal’s reasoning
The court rejected the proposed equation between reasonable grounds for belief and constructive knowledge. The occupier must either actually know the relevant fact or know facts which give reasonable grounds for the relevant belief. Showing that a reasonable inspection would have revealed additional facts is not the same as establishing that the occupier possessed the necessary knowledge.
That distinction does not permit deliberate blindness. Pill LJ explained that an occupier cannot deny facts which the evidence establishes that the occupier knew. Evans LJ likewise distinguished actual knowledge, including knowledge of facts supporting a reasonable belief, from a merely negligent failure to acquire knowledge. Their reasoning was subsequently quoted by the Court of Appeal in It’s A Wrap (UK) Ltd v Gula [2006] EWCA Civ 544.
The claimant’s appeal was dismissed. The decision should not be read as saying that child trespassers can never be owed a duty, or that fencing automatically defeats every claim. Its central point concerns proof of the statutory knowledge requirement on the particular facts.
What the case explains
There are two separate questions: whether a duty arises under section 1(3), and, if it does, whether the occupier has taken the reasonable care required by section 1(4). Measures to warn or discourage people may also be relevant under section 1(5). Swain is particularly useful for keeping the first question distinct from an argument that further precautions would have been inexpensive. A proposed precaution does not itself establish the knowledge needed for a duty to arise.
Sources: the Case report (vLex), and the Court of Appeal’s quotation of Pill and Evans LJJ in It’s A Wrap (UK) Ltd v Gula, especially paragraphs 30 and 53.
