Public Authority Liability Update - Summer 2011
Maurice Agis was an artist who worked on a grand scale. Starting in the 1960s, he constructed giant, interconnected inflatable coloured PVC ovoid bubbles. Visitors wandered through the maze of tunnels and voids created.
As Agis developed his concept, it became grander, and his last, "Dreamspace V", covered an area equivalent to half a football pitch. Thousands of visitors enjoyed the artwork over the years, but tragedy struck on 23 July 2006 when a freak gust of wind caught the exhibit, lifting it a hundred feet into the air. Two people fell to their deaths, and others were injured, many seriously.
This article looks at the legal aspects of the claims for compensation that arose from the tragedy.
The facts
At the time, Dreamspace was being exhibited on a showground, owned by Chester-le-Street District Council. It was the second leg of a three-venue tour, having previously visited Liverpool.
Maurice Agis brought the exhibition to Chester-le-Street after an approach from the Council arts co-ordinator in 2005.
Maurice Agis' son, Giles Agis, was the executive director of an outdoor arts events promotion organisation, Brouhaha International Ltd, based in Liverpool. Giles and Brouhaha became involved in the Dreamspace tour when Giles assisted his father in the submission of an Arts Council application to help fund the tour. The Chester-le-Street Council arts co-ordinator also wrote a letter of support to the Arts Council. Funding was granted and the tour confirmed.
As the date for the opening in July 2006 drew closer, detailed preparations got underway. The site management was originally to be undertaken by an independent company but, due to lack of funds, the management functions were taken over by Brouhaha/Maurice Agis with some input from the Council. In addition, Chester-le-Street operated a safety advisory group which examined all applications to stage events on Council land. The group had input from the fire service, police, and Council leisure services staff to decide whether event applications were satisfactory from a safety point of view. The Council arts co-ordinator put together the Dreamspace submissions for the group which included an event risk assessment, drawn up by Maurice but passed to the Council by Giles, and proof of Brouhaha's liability insurance. The risk assessment was deficient in that it failed properly to address the relevant risks. The application was however, passed.
Following approval, Giles/Brouhaha provided the following:
- A staff briefing document for staff operating the artwork which also highlighted further safety issues. However, it did not correct the omissions in the risk assessment.
- Staff to man the event.
- Staff to move the exhibit from its previous venue to Chester-le-Street, and erect it.
- Pro forma publicity material, which the Council then customised to advertise the Chester-le-Street event.
Giles also knew that the Dreamspace V had lifted off the ground during its previous exhibition in Liverpool, but did not draw this to the Council's attention. Brouhaha had run the event in Liverpool.
The Council arts co-ordinator dealt with other administrative matters, including booking accommodation for Brouhaha's staff, organising agency staff, putting up local publicity and ferrying Maurice and his partner around.
The criminal prosecution and inquest
The Council, Maurice Agis and Brouhaha faced criminal prosecution. The Council and Brouhaha pleaded guilty to offences under the Health and Safety at Work Act 1974, respectively for failing to protect the public from risks to their health and safety through the failings of its staff who were on the safety advisory group, and Brouhaha for failing to protect its own staff (but not the public) by not carrying out a proper risk assessment of risks of staff. Maurice was convicted at trial for failing to ensure that the public were not exposed to risks to their health and safety. An inquest also took place and the jury recorded a verdict of accidental death.
The compensation claims
Claims for damages were submitted by the deceaseds' families and the injured. Maurice Agis had subsequently died without any significant assets or public liability insurance cover, so the issue was who else would pay. Both Brouhaha and the Council were insured, but Brouhaha denied any liability. To avoid delay, insurers agreed that the compensation claims would be dealt with, but the actual share of blame between the insurers would be resolved, though a separate Part 20 recovery action heard in April 2011. Brouhaha sought a declaration that it should bear no civil liability for the accident, and the Council sought a contribution from Brouhaha, having formally admitted that it was responsible to some degree for the accident.
The decision – Occupiers' Liability Act
The case was heard before Mr Justice Foskett.
He observed that Maurice Agis was undoubtedly negligent in the way he designed the exhibit but that the named defendants Brouhaha or the Council were not vicariously liable for his actions.
He noted that Brouhaha sought to draw a distinction between its admitted liability to its staff for failure to make any risk assessment of the dangers posed by the structure to those staff, and any potential liability to visiting members of the public, which it denied. The judge said that this was artificial. He considered that Brouhaha were occupiers under the Occupiers' Liability Act 1957, as they exercised a sufficient degree of control over the exhibit. Although they did not design, or own it, they did exercise the functions listed at 1 to 4 above. In addition, Brouhaha received a payment of £9,000 for the administration of the tour. The judge said that Brouhaha:
"... transported the structure to Chester-le-Street and erected it there ... the same employees would act as stewards inside and outside the structure ... and to the extent that they played a part in the control of who went into the structure and how they behaved inside, they had some degree of physical control over the premises. This stewarding represented one part of a continuum of activity engaged in by Brouhaha which resulted in Brouhaha becoming an occupier of the premises."
Finally, the judge noted that Brouhaha knew about the lifting up of the structure in Liverpool. This gave them further knowledge of the danger that the structure could pose. That knowledge placed a greater level of responsibility on Brouhaha to protect visitors to the structure.
The decision – final split
The judge found Brouhaha 55 per cent to blame for the accident and liable for that proportion of the deceased and injured claimants' damages and costs. He granted the Council their costs of the Part 20 proceedings, and on an indemnity basis from 1 March 2010, the date of an effective Part 36 offer having been made by the Council's legal representatives.
What we can learn
- Occupation for the purposes of the 1957 Act is a fluid concept. Brouhaha, who neither owned the land, nor the structure, nor designed the Dreamspace were found to be occupiers by virtue of providing staff to man the exhibit, and exhibit, and other acts preparatory to the opening of the exhibit, some of them dating back months. The judge was not required to make any decision about the status of the Council, but he held that if he had, he would not have found them to be an occupier. They owned the showground, but they did not have the appropriate degree of control over the structure to become occupiers. What mattered to the judge was the "continuum of activity".
- Councils should be aware that the moment they give advice and guidance to potential exhibitors, then they are on a road that can lead to civil liability. If another party proves to have inappropriate or insufficient insurance cover, the courts may well seek to impose liability to ensure compensation for the innocent injured.
- Proper record keeping is vital – here, whilst Brouhaha were not able to find a substantial number of documents, the Council's careful record keeping, and extensive email disclosure, proved vital in showing exactly who agreed to do what, and when.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
