Mr Justice Foskett:
Introduction
- Dreamspace V ('Dreamspace') was an artistic creation of the late Maurice Agis, the Second Named Third Party in these proceedings. As its name suggests, there had been other versions of Dreamspace before Dreamspace V. It appears that the Dreamspace programme started in 1996. The creation may loosely be described as having been in the contemporary, public art genre.
- In some of the advertising material prepared shortly prior to the events that gave rise to this case, Dreamspace V is described as "an interactive public art event" which uses "light, colour, form, movement and sound" in order to create "a harmonious special experience fusing together different disciplines to create this specific abstract space".
- Dreamspace V comprised a substantial inflatable PVC structure, the overall dimensions of which were approximately 50 metres x 50 metres x 5 metres high. It covered half the area of a football pitch. Its configuration involved the use of a large number of identical ovoid coloured cells or units that were interconnected. When the structure was inflated, people could walk through the tunnels and voids created between the units and experience sensations of the kind described above. They wore gowns to enhance the experience.
- On the material presented to me in this case, there is no doubt that many people, young and old, found the experience of walking through Dreamspace V, and indeed its predecessors, an enjoyable and enriching experience. The Dreamspace concept in its various manifestations prior to Dreamspace V was one that Maurice Agis had, over the previous 10 years, taken successfully to a good many venues, both in the UK and in Europe.
- Subject to the matters to which I will refer below (paragraphs 120-123), no significant accidents involving Dreamspace V or its predecessors had occurred and, so far as the evidence before me demonstrates, no one had been injured as a result of entering or otherwise being involved with any of the Dreamspace structures.
- Sadly, tragically and very dramatically, all this came to an abrupt end at Riverside Park, Chester-le-Street in County Durham on the afternoon of 23 July 2006. A gust of wind caused the inflated Dreamspace V structure to break free from its anchorage and lift into the air. Two people inside it, Claire Furmedge and Elizabeth Collings, died as a result of injuries sustained in consequence of falling when the structure was lifted off the ground and a number of others were injured, some quite seriously, others less so.
- The claims for compensation made as a result of these two deaths have been settled out of court and paid. As I understand it, the same applies in respect of most, if not all, of the claims arising from the other injuries caused. The claim of the Third Claimant in these proceedings, Susan Campbell, has been settled and paid. This trial does not involve any aspect of the provision of compensation for those killed or injured. It has been concerned solely with the apportionment of responsibility as between two parties, Chester-le-Street District Council ('the Council'), as it was then, and Brouhaha International Ltd ('BIL'), each of which had some role in the organisation of the event that ended with this tragedy. It is, as Lord Faulks QC for the Council said to me in opening the case, a dispute between the insurers of those two parties. The outcome of the case will decide how much each of these insurers ultimately pays towards the compensation already paid out or in respect of any compensation still to be paid.
- Given the interest that there may be in an incident of this nature, it is, perhaps, important to state clearly that this judgment is based solely on the considerations that are relevant, if they arise, to the issue of the apportionment of civil liability under the Civil Liability (Contribution) Act 1978 for the injuries sustained: it does not involve an exercise of endeavouring to establish against any individual within either of the two effective parties to this litigation personal responsibility for what occurred. The issue is the "institutional" responsibility, if any, of each party.
- One thing is, however, absolutely clear: Maurice Agis, who had no engineering or technical qualifications or expertise, had never fully and properly assessed and addressed the question of whether the anchorage for Dreamspace V was adequate for all reasonably foreseeable weather conditions nor had engaged anyone on his behalf to do so. I will return to that later (see paragraphs 17-22). It follows that what this case is really about is the question of the extent, if any, to which the Council and/or BIL should have assessed and addressed that issue for themselves or raised questions that others needed to answer satisfactorily before the exhibition at Chester-le-Street commenced.
- As Lord Faulks QC also said in his opening, it has been a tragedy for everyone concerned in this doomed venture. It was a terrible tragedy for those who died in the incident and, of course, for their families. The consequences for some of those injured will be permanent and everyone involved will doubtless look back on the day with very painful memories. For Maurice Agis, who faced criminal charges thereafter, it was the end of a career as an innovative and acclaimed artist. He died at the age of 77, two months after the conclusion of the criminal proceedings in the Court of Appeal, and it seems highly likely that the distress and anxiety arising from those proceedings, and indeed the anguish caused by the incident itself, will have contributed to his death. He did not give evidence in the criminal trial and had died before the inquest into the deaths of Claire Furmedge and Elizabeth Collings was resumed. In a statement to the police made on the day of the disaster he spoke of his shock at what had occurred and said that as the "owner and maker" of Dreamspace he had to accept responsibility for what happened. Mrs Jo-Anne Simpson, who went to the scene after the accident occurred and before Maurice Agis was taken away in a police car, described him as "distressed and distraught". For some of those who played a part in making the arrangements, including Mrs Simpson, the relatively new Arts Officer for the Council at the time, and Mrs Julie Lewcock, the Operations Manager for Riverside Park at the time, its memories continue to cause considerable distress. Both Mrs Simpson and Mrs Lewcock were in tears at times during the proceedings before me.
- As the wisdom of hindsight demonstrates, what happened was almost certainly an accident waiting to happen. Without in any way diminishing the impact of what occurred for those who died and those who suffered serious injury, the consequences could have been even more disastrous than they were had there been more people inside the structure when disaster struck. It was not at the time near to its capacity of about 100 adults and 25 children.
The parties to this litigation
- I have described the two effective parties to this litigation as the Council and BIL. I will be examining their respective roles in greater detail shortly because it lies at the heart of the argument between them. I can, however, for present purposes, summarise.
- The Council was the Local Authority with responsibility for Riverside Park where the Dreamspace V exhibition was set up. Since these events it has been subsumed in the new unitary authority called Durham County Council. The Council had approached Maurice Agis the previous year to see if he was interested in exhibiting Dreamspace V in the area for which the Council was responsible.
- BIL was founded in 1991 as a company limited by guarantee with charitable status. In its original conception it set out to establish links between former Eastern Bloc countries and arts organisations in the Liverpool area. As time moved on, its activities widened to include the promotion and organisation of arts events. Maurice Agis' son, Giles, who had worked in Liverpool since 1989, joined BIL as its Executive Director in 2002. It was through this connection that BIL became involved in what was intended to be a three-leg tour by Dreamspace V in the summer of 2006, comprising visits to Liverpool, Chester-le-Street and, finally, Southwark in South London. The extent of BIL's involvement in the Chester-le-Street part of this tour is in issue in these proceedings.
- As between the Council and BIL, the issue is whether, as the Council alleges, BIL should share in the liability for paying compensation to those killed and injured or whether, as BIL contends, the Council has sole liability in this regard. BIL accepts that it had legal responsibility for its employees, but argues that it had no legal responsibility for members of the public. The Council disagrees and suggests that BIL should be responsible as to two-thirds of the overall liability for the members of the public killed or injured.
- As I have indicated previously, Maurice Agis died soon after the hearing of the appeal against sentence in the criminal proceedings that took place in August 2009. There was no money in his estate and he was uninsured. Accordingly, whatever share of the civil legal liability might otherwise attach to him, there is no money with which it can be met. On that basis, the two parties before the court are the only two effective parties.
What happened on the day of the accident and why?
- Videos of what happened, used during the criminal proceedings and the inquest, can be seen on the internet. I have myself watched some of the footage to gain an appreciation of what occurred.
- Various eye witness accounts were given at the time and Mr Adrian Runacres (the forensic meteorologist, micro-climatologist and incident investigator commissioned by Durham Constabulary to prepare a report on the meteorological aspects of the incident) described the events in his report partly by reference to the CCTV and mobile phone video footage that there was. All the evidence was essentially consistent with a gust of wind getting beneath the western (namely, the rear) edge of the Dreamspace structure with sufficient strength to break the anchorage in that area. Once that gap had been created further air was allowed to get below the surface of the structure causing it to move in an easterly direction. This caused a ripple effect under the Dreamspace structure that led to a progressive failure of most of the other anchorage points around the perimeter of the structure. The structure then started turning in a clockwise direction and the effect of the wind caused the whole of its front aspect to stand vertically, but in a folded fashion, such that it created a "sail" effect. The wind then caught this sail and caused the whole structure to move in a north-easterly direction. Its movement was halted by its collision with some trees and the pole of a CCTV camera. One estimate is that the structure moved about 85 metres.
- Mr Runacres' report does not contain any suggestion that the wind that caused this sequence of events was exceptionally strong. In other words, this was not a wind that could not reasonably have been contemplated.
- So why did the anchorage fail to prevent the movement of the structure? This was analysed by Mr Hoyland, a Principal Specialist Inspector of the Health and Safety Executive. His conclusion in his report was expressed in the following sequence of sub-paragraphs in paragraph 45:
"(a) the initial design of Dreamspace was deficient, primarily because it failed to establish and specify a sufficient number of suitable ground anchors and ropes to retain the structure in position under foreseeable weather conditions. The evidence indicates that 40 ground anchors were intended to be used when both simple and detailed calculations available in design standards indicate that at least 80 would be required with the type of ground anchor used;
(b) the shape of the structure and the specific way in which ropes had to be used with the ground anchors were significant barriers to the provision of a suitable design. Although 60 rather than 40 ground anchors each having a significantly greater capacity could have been provided and stronger ropes used, there was no way of holding down the centre of the structure and no effective provision had been made to prevent the wind getting underneath the structure;
(c) the 6mm rope used with the ground anchors on the day of the incident had a breaking load substantially lower than that which would be expected for a rope of that size and type. A normal quality rope for this kind of application would be expected to have a breaking load at least double the maximum measured for the Dreamspace ropes. Using knots to form loops in the ground anchor ropes would have reduced their strength even further;
(d) as has been demonstrated by the tests and calculations carried out as part of this investigation, the strength of the ground anchor ropes would have been reduced by knots, wrapping them around the tight 8mm radius of the ground anchors and the way the ropes were wrapped around the structure and connected to the ground anchors;
(e) the failure to define a system for applying the ground anchor ropes. As a consequence, the way that they were placed around the outer cells could have meant the difference between a rope taking a fair share of the load or not being loaded at all. A simple rule would have been "always deploy 60 ground anchors equally spaced around the structure irrespective of the weather as conditions can change". (the 60 ground anchors and ropes would need to have had a greater strength than those used);
(f) on the 23 July ground anchors had been unevenly distributed around the perimeter of the structure, with a substantial and significant unsecured area at the rear. In addition the method for attaching the ropes to the ground anchors seems to have changed, thereby further increasing the load imposed on an already inadequate number of ground anchors and ropes;
(g) additional ground anchors/ropes were deployed to the front and southerly side as the day progressed because staff inside observed the floor lifting. However, these additional ground anchors were insufficient, if only because they still left a substantial area at the rear without ground anchors or ropes;
(h) the wind changed direction such that it would be blowing from the southwest rather than the south. This would leave the lightly secured rear of the structure exposed to the wind. In this situation the wind loading on one quarter of the structure would have been imposed mainly on two ground anchors rather than the 20 or more that should have been deployed in this area;
(i) as a consequence of a) to h), the ropes associated with the two ground anchors at positions 12 and 13 failed due to overload. This would put additional loading on the remaining ground anchors, which would be magnified by the increased wind load as the structure began to rise to a vertical position. The remaining ground anchors would then fail progressively until the structure was released;
(j) the estimated wind speeds required to cause ropes 12 and 13 to fail are substantially less than the wind speed indicated by the weather report from the Durham Met Station and are consistent with witness statements;
(k) the evidence indicates a failure to establish or apply any engineering principles, design codes, tests, professional advice, risk assessments or any rational design procedure. This meant that the ground anchors and ropes had insufficient strength. As a consequence of this lack of design, safe operating parameters such as the maximum in-service wind speed could not be defined;
(l) in the circumstances prevailing, there was a failure to evacuate Dreamspace, deflate the structure and make it secure. The decision to evacuate was the responsibility of the person in charge based on the behaviour of the structure, such as lifting off the floor. The warnings given were ignored …."
- I will mention the matter referred to in sub-paragraph (l) later (see paragraph 174), but it is not an issue that goes directly to the issue of deciding responsibility for the failure of either the Council or BIL to investigate the essential safety of the Dreamspace V structure. Mr Hoyland's conclusion was in the following terms:
"The evidence indicates that none of the design or (safe working) procedural issues raised in these conclusions had been adequately considered by those responsible for the design and use of Dreamspace. Furthermore, it seems that these issues were not even addressed or reviewed after a warning given by a previous incident when an earlier structure was being used by Mr Agis in Germany. A suitably qualified and experienced engineer should have been engaged to carry out the necessary design calculations and tests."
- That conclusion was, of course, primarily directed to the responsibility of Maurice Agis for ensuring the intrinsic safety of the Dreamspace V structure. It needs to be understood that the Dreamspace V structure was a new structure. The three-leg tour (see paragraph 14 above) was to be its first public outing. It does not follow that what might have been appropriate safety features of earlier versions would necessarily have been valid for this new structure. The point Mr Hoyland was making was that there was no evidence that anyone with suitable expertise ever looked at the intrinsic safety of the Dreamspace V structure before it was exhibited in public. He relied to some extent on the fact that there had been a previous incident in Germany with an earlier version of Dreamspace. It is not possible for me, on the evidence available, to say to what extent that incident (to which I will refer briefly later at paragraphs 120-123) is of direct relevance to the question of the intrinsic stability of Dreamspace V. However, its circumstances were such as to raise, at least in Maurice Agis' mind (or that of the reasonable person in his position), concerns that the issue needed to be addressed for future versions. There is evidence (see, e.g., paragraphs 45 and 60-61) that he appreciated that wind could cause problems with Dreamspace V and that is borne out by the experience of what occurred in Liverpool (see paragraphs 107-119 below). However, as I have indicated in paragraph 9 above, the first sentence of Mr Hoyland's conclusion was undoubtedly an accurate statement.
The roles of the Council and BIL in the Chester-le-Street exhibition
- I will endeavour to trace the relevant history of the way in which each party became involved in this project and any material events that occurred in the period before 23 July that may be relevant to the issue that I have to determine. In the process I will record, where it arises, the evidence of the individual perceptions that there may have been about what was occurring and about the responsibilities being undertaken by one party or another. However, it is agreed between the parties that it is the objective appraisal of what the Council and BIL did during the relevant period that governs the conclusions that fall to be reached about each party's legal responsibility.
- Having read about the Dreamspace project earlier in the year, Mrs Simpson e-mailed Maurice Agis on 17 August 2005 expressing interest in exhibiting Dreamspace V for a 1-week or 2-week period in 2006. There was some delay before she received any response, but there was a telephone conversation between them followed by a letter from him to her on 11 October 2005 to which was attached a document entitled "Facts and Figures to Elaborate a Dreamspace Budget - 2005". This contained details of costs and a variety of requirements including those connected with transport, travel and accommodation and facilities on site. It referred to the fact that "Agis and assistant can train people to run the exhibition in their absence." He first approached his son Giles in late 2005 about the possibility of a national tour of Dreamspace V, including a stop at the Liverpool festival. As will emerge in due course (see paragraphs 158-166 below), there had been earlier contact between them about the possibility of collaboration between BIL and Maurice Agis concerning Dreamspace which had come to nothing.
- Maurice Agis wrote again to Mrs Simpson on 8 January 2006 enclosing some illustrative material and suggesting that Dreamspace V could be exhibited at the end of July to August that year at "a couple of venues" in "your region".
- On 13 January Mrs Simpson e-mailed colleagues in other local authorities in the area in the following terms:
"I have been in contact with Maurice Agis a London based Artist who has a fantastic 3D interactive sculpture concept which he developed in the 1990's, 'Dreamspace', (apologies if you are already aware of this). We have been looking at the logistics of bringing the Dreamspace to Chester-le-Street this summer as part of this year's national tour. Maurice is applying to [the Arts Council] for funding which would cover most of the costs involved, the venues would only need to cover the associated site costs, electricity, security etc. which could be recovered from any charges made ...."
- The purpose of this e-mail was to see if fellow arts officers in surrounding counties might be interested in sharing the cost of the project.
- By this time BIL was on board with its involvement in the project. On 20 January Giles Agis e-mailed Mrs Simpson referring to a telephone conversation between them and attaching the first draft of the application to the Arts Council for funding. On 23 January Mrs Simpson drafted a "To whom it may concern" letter in support of the Arts Council application. It expressed the hope that Dreamspace will "enable Chester-le-Street District Council to pilot a fully accessible arts festival in and around the installation which will be the first of its kind in the area." It said that marketing information "will be distributed via partnership networks, website links, local, regional and national distribution lists" and that "excellent working relationships with the TV and press" would be utilised. Mr Grime and Mr Kennedy draw attention to the fact that there is no mention of BIL in the draft letter, but I do not see that as assisting greatly, if at all, with the issue of the legal responsibility that may or may not attach to the company for the consequences of the accident.
- There were further e-mail communications at this time in which Giles Agis asked Mrs Simpson to send the letter of support directly to Maurice Agis. She did so and invited suggestions from both of them for drafting changes. On 26 January Giles Agis asked Mrs Simpson for various pieces of information in relation to the proposed Arts Council application which included this question: "6. What staff will be involved in supporting the exhibition and what are their roles?"
- It appears that all relevant information was available to enable the application form to be completed and despatched on 27 January. It seems that Maurice Agis submitted the application formally, but Giles Agis accepted in cross-examination that BIL had lent its knowledge and skill in preparing the application. Indeed in an e-mail on 31 January to Sally Dixon, the Arts Activities Assistant with the Council, Giles Agis acknowledged receiving certain information from her and said "I will now send off the application". He had put it in this way in paragraph 8 of his witness statement dated 4 February 2011:
"Maurice wanted to try and get Arts Council funding for the Dreamspace tour. He had received Arts Council Funding before but not for a long time. We offered to type up the application. Maurice produced a handwritten draft of the main section with costings based on previous exhibitions. I had it typed using our template and also liaised with the other potential hosts with regard to the other parts of the application. This process took place in January 2006, which is when I first spoke to Jo-Anne Simpson."
- In paragraph 11 of that witness statement he said this: "I think that Maurice submitted the application to the Arts Council around late January or early February 2006."
- I do not think there can be any doubt (to the extent that it is relevant to the issues I have to determine) that BIL did take active steps in co-ordinating the putting together of the application to the Arts Council.
- The Arts Council funding was granted in due course, but notification of that funding did not become available until early May. Much of the discourse between the Council, BIL, Maurice Agis and others in the period until then was inevitably provisional. However, it is relevant to record what happened.
- Before moving to early February 2006, I should record an internal communication between Sally Dixon and Mrs Simpson on 26 January because BIL place some reliance upon it. Sally Dixon sent an e-mail to Mrs Simpson to which was attached what was effectively a draft and very provisional Project Plan. She identified a number of practical issues that would need to be addressed. These included the provision of facilities such as toilets, a ticket booth, on-site signage and matters of that nature. It also contained an entry entitled "Health and Safety including detailed risk assessments and contingency planning". Sally Dixon's comment against this entry at that stage was "Evidence that Dreamspace have pulled this together", indicating that she thought that Dreamspace was responsible (although a question mark appeared by the side of that comment). In terms of timing, she indicated that this was required "now".
- Furthermore, against the sub-heading "Site Management", she put "one dedicated site manager needed". In the column headed "person responsible" she put the words "She's Gott it" with a question mark. That was a reference to a local company formed by Nickie Gott that specialised in event management. In relation to notifying any authorities, Sally Dixon identified the Safety Advisory Group ('SAG' – see further at paragraph 65 below) as one to be notified and she put a question mark by the entry "person responsible" where she had also identified the Council and "She's Gott it" as candidates.
- Mr Grime and Mr Kennedy make the following comments. First, it was not sent to Giles Agis at this stage and neither he nor BIL is mentioned at all. Second, the Council at that stage intended to use Nickie Gott's organisation to provide site management. Third, the application to SAG was said to be the responsibility of the Council or 'She's Gott It!' Fourth, the entry against 'public liability insurance' was "Check Maurice has this", a similar comment appearing alongside entries dealing with disabled access, fire extinguishers and the production of specific leaflets. Fifth, co-ordination of the press was said to be through the Council's Press Officer, 'She's Gott It!' and another possible press agency.
- All those comments are valid. However, this was the first draft of an internal document that would "travel" within the Council over the following months and it can have represented only provisional thinking at the time. Indeed in an e-mail sent to Nickie Gott on 2 February, after there had been a meeting, Sally Dixon said the following:
"Unfortunately, at this point in time we have not been able to further clarify respective roles and responsibilities with Maurice and Giles Agis from Dreamspace with regard to the management of the site. This puts us in a tricky position as far as putting a brief together is concerned."
- It was at about this time that Mrs Lewcock was first informed of the possibility of the Dreamspace exhibition. She explained the procedure to Mrs Simpson (whose first event for the Council this would be). These procedures included (as Sally Dixon's Project Plan had itself indicated) the need to obtain approval from SAG and to complete the risk assessment and method statement referred to in what was described as the "events pack".
- There were other internal meetings within the Council over the next few weeks, but nothing of any great moment occurred. By the beginning of March, however, the "event application process" was in the course of preparation. In other words, the application to SAG was in the process of preparation. On 3 March, Sally Dixon sent an e-mail to Maurice and Giles Agis in the following terms:
"We have started the event application process in preparation for Dreamspace but there are a couple of things that we need from your side. Could you forward the risk assessments you use, a method statement and details of the public liability in place?"
- The e-mail also asked for an indication of when the Arts Council was likely to make its funding decision.
- There was no response to that e-mail and it appears that Mrs Simpson herself telephoned the Arts Council to find out the likely timescale. She was told that the application would be decided during the week beginning 8 May. (In fact the news came through towards the end of the previous week, but that was the indication she received at the time). The evidence suggests that she also chased up Maurice Agis because she referred in an e-mail to Mrs Lewcock on 7 March to his "promise" to send through "the relevant risk assessments" and the "method statement". She indicated at the same time that he (that is, Maurice Agis) hoped that the insurance position could be dealt with through the Council's insurance. On this issue she was, and continued to be, in contact with Mr Jim Elder, the Council's Risk and Financial Services Manager.
- Toward the end of March, on 27 March, Maurice Agis wrote to Giles Agis in the following terms:
"In the event of the Arts Council grant being successful, I'd like you to provide a number of services in Liverpool for the Dreamspace exhibition and limited services in Chester-le-Street. Will speak to clarify the issues soon."
- No other contemporaneous document has emerged that explains precisely what that letter meant or was interpreted to mean by BIL. Giles Agis said this about it in his witness statement:
"I rang Maurice to discuss the letter. By then I probably knew where we intended to exhibit in Liverpool and we discussed what was needed in Liverpool in relation to man power and equipment. I have no recollection of talking to him about what he planned for Chester-le-Street. I didn't know which site or what was proposed. It was not until later that it was decided that some of the same personnel would be used in Chester-le-Street as were used in Liverpool."
- The letter was not examined fully in the evidence and I am not sure that much turns on it, save that Mr Grime and Mr Kennedy submit that it shows that Maurice Agis saw a distinction between the role of BIL in Liverpool and in Chester-le-Street. However, irrespective of his personal intention at that time, the true legal position, based on an objective analysis, has to emerge from the facts of the subsequent events as they are established.
- There was an internal communication concerning insurance cover sent by Mrs Simpson to Mr Elder on 3 April, but nothing was followed up until news of the Arts Council funding emerged on 5 May. Mrs Simpson sent two e-mails that day, one inviting Mrs Lewcock to join them on a site visit the following week and another to Mr Elder following up the insurance position. Mr Elder replied to that aspect on 8 May. Apparently, Maurice Agis visited the site on his own on 9 May and then again with Mrs Simpson on 10 May. He apparently thought the site was "ideal", part of that assessment being that it was sheltered from the wind by some raised ground on the west side.
- This was inevitably a period of heightened activity. On 10 May Mrs Simpson e-mailed Liam Howley of the Environmental Health Department of the Council asking if any kind of licensing issues arose. His reply the following day was that he could see no licensing issues (or, having checked, any planning issues either), but said that "obviously there will be significant health and safety issues" that she would need to address "with corporate Health and Safety". Mr Grime and Mr Kennedy suggest (in what appears to be a critical way) that she failed to do so as suggested. If it was intended as a criticism, I do not think it was fair. The two people she might have approached were Denver Mead and Sue Kelly, the Health and Safety Manager and a Health and Safety Officer respectively. However, her impression (and that of Mrs Lewcock) was that everything of relevance had to be put before SAG which would then indicate if anything else was required. Since Sue Kelly was a member of SAG, there would have been an added reason for thinking that putting the matter before SAG would achieve the same objective as approaching her in her individual capacity. As will become apparent, SAG did not fulfil the role that Mrs Simpson and Mrs Lewcock thought it had. Nonetheless, within the next 7 days or so the SAG application form was completed.
- It was completed by Mrs Lewcock on 18 May on the basis of information supplied by Mrs Simpson. It put "Maurice Agis/Leisure Services Ch-LeSt D C" against the entry "Name of Organisation" and "Jo-Anne Simpson – Arts Officer" and "Julie Lewcock OM" against the entry "Event organiser(s)". Mrs Lewcock has said subsequently that at the time of completing the form she did not know that BIL had anything to do with the event and Mrs Simpson has said that she should have mentioned BIL. Mr Grime and Mr Kennedy submit that it is inconceivable that Mrs Simpson would not have told Mrs Lewcock that BIL had a role in organising the event if she thought this was the case. For reasons that will already be plain, I do not think that Mrs Simpson's understanding of the position (or indeed that of anyone else within the Council) is the true test for deciding on BIL's legal responsibility for what occurred. However, I merely record the submission for present purposes.
- On the same day Nickie Gott e-mailed Mrs Simpson with a quotation in the sum of £15,510 for various services including "stewarding", the provision of a "site manager" for 12 days and 4 days worth of "project management".
- On the following day Mr Elder took up with Maurice and Giles Agis the insurance position and had a lengthy telephone conversation with Maurice Agis during which he (Maurice Agis) said that he was "not contracted to erect [the Dreamspace structure] on site, only to advise, and that [the Council is] contracting…8 people…to come on site to erect [it]". That is what Mr Elder communicated to Mrs Simpson in an e-mail which contained the following also:
"It strikes me that surely those erecting this equipment must have experience of it and be known to Maurice Agis?
Anyway he sees no need for any further liability insurance on his behalf although he suggested he sign an indemnity to the Council in respect of any incident or claim directly attributable to the artwork materials on site.
I would be interested in your comments regarding the overall management responsibility on site and the contractor undertaking the erection, dismantling and maintenance of the artwork whilst on site."
- After e-mails between Mrs Simpson and Nickie Gott on 22 May about the labour costs reflected in her previous quotation, on 23 May Mrs Simpson sent an e-mail to Nickie Gott in the following terms:
"I've had a reply from the artist regarding the costs for Dreamspace and their initial response seems to be that I need to find ways of cutting it by looking at ways for them to take on some of the roles outlined within their specification.
This is a really difficult situation in that the project management costs are included within their bid which needs to be spread out over the three venues across the country and I don't have the control of the [Council] budget. They are obviously looking to keep those costs to within their overall budget as although it is only with us for 12 days the structure is with the other two venues for a total of 60 days.
They are looking at ways of doing this and are going to get back to me ASAP. Apologies for the 'toing and froing' between the three parties involved."
- This does suggest something of a review of the position from the point of view of Maurice Agis and BIL. To that extent, what had gone before in terms of planning for the exhibition at Chester-le-Street may assume less relevance.
- It appears that Mrs Simpson spoke to Giles Agis on 23 May because she referred to a conversation in an e-mail she sent to him the following day in these terms:
"Hi Giles, in order to submit the event application to the SAG at Chester-le-Street made up of police, fire, health and safety reps etc for the next meeting next week, there are a couple of things that are still needed to go in with the application form.
Would you be able to forward a covering letter and insurance certificate which explains the public liability cover and staffing arrangements, including employer's liability that we discussed yesterday? They have requested a method statement for the erection too."
- On the following day there was an e-mail from Giles Agis to Mrs Simpson promising to send "stuff" by the Tuesday after the Bank Holiday which was presumably 30 May. On that day she e-mailed Maurice and Giles Agis (attaching a schedule of the event and an up-dated version of the Project Plan referred to in paragraph 34 above) in the following terms:
"Just a polite reminder too that it would be great if you could forward all of the insurance details needed and the method statement, risk assessment, and the event health and safety manual in order that I can submit the event application to the Safety Advisory Group this week.
Maurice, I received the message with the new e-mail for Stephen, I called him but he was out today, will catch him again in the morning to check that he has received the information okay. Could you also checking the schedule that you are happy with the pricing?"
- The reference to 'Stephen' was to someone involved in the printing of publicity material. At that stage the identity of the person supplying the stewards was still to be confirmed, according to the Project Plan. The SAG meeting was scheduled for 7 June.
- On the following day, 31 May, Giles Agis e-mailed Mrs Simpson in terms that Lord Faulks QC and Mr Warnock submit are important:
"1. I have the team of 4 people from Liverpool to work the exhibition, we will arrange payment for them.
2. We will need just 4 people to find for the 1 day set up and 1 day pack up.
3. Call Maurice about insurance I will fax our public and employers insurance to you ..."
- Mr Grime and Mr Kennedy submit that it appears that the decision to take the team from Liverpool to Chester-le-Street has occurred since the previous evening (which must be correct) and that since it is clear that expenditure/budget decisions were taken by Maurice Agis (even if actioned by Giles Agis) it is reasonable to infer that the decision to move the Liverpool team was taken by Maurice. I am not sure that that is necessarily so, but even if it is I do not think it means that BIL was not in law beginning to assume a greater role in the Chester-le-Street exhibition than might originally have been planned. I will return to this later (see paragraph 154).
- Mrs Simpson asked a number of questions in reply including the following:
"Are there any specific electricity supply needs, do you need any transformers etc.
Do you have a Health and Safety Manual or method statement that your employees will be following.
Can you fax a copy of the risk assessment that will be used by the staff to erect, dismantle and working procedures for exhibition staff
Are there any specific access needed for the transport on arrival to site. Can you confirm what 'banking' arrangements you would like in place for ticket income on a daily basis or other"
- Mr Grime and Mr Kennedy comment that this does not ask for any risk assessment in relation to structural safety but only in relation to the erection, dismantling and working procedures for exhibition staff and they submit that the failure to make any enquiry into structural stability and, in particular, to see that it had been verified professionally is at the heart of the defaults of the Council. That may, of course, be so, but it does not answer the question of whether BIL also had a duty in relation to structural stability.
- Giles Agis sent her an e-mail on 1 June saying that he would "get this info today off Maurice". By a fax sent within about 30 minutes of that e-mail Giles Agis sent her documents described below as -
1. Dreamspace Security Hazards and control measures.
2. Rules & Regulations for Visitors.
3. Further Information on Dreamspace.
4. Torribles [insurance brokers] summary of terms of BIL EL, PL & Products Liability insurances.
5. BIL change of name certificate.
- The first of these documents constituted the "risk assessment" that had been produced by Maurice Agis. In fact, as I will mention later, it related to an earlier version of Dreamspace than Dreamspace V. It contained the following information: it identified in one column potential "hazards" and then in an adjoining column the "control" said to be necessary or appropriate to meet the identified hazard. In relation to "fire safety", it was said that the PVC was flame retardant and smokeless, an emergency exit was provided, that there was no smoking within the fenced area and there would be a "team of stewards". In relation to the hazard of "high winds and torrential rain", it said that there were "40 stakes to secure structure to the ground", there would be "evacuation, closing and deflating" and a "team of stewards". In relation to "overcrowding", it was said that there is "control entry of numbers of people through cloaks" (which, I think, was intended to refer to the provision of the cloaks or gowns that the people who entered the Dreamspace structure wore). Various matters were set out in relation to "electricity safety" and in relation to "misbehaviour" (in the form of "bouncing from inside or from outside, running, smoking" and "vandalising and robbery") a number of matters were provided including "stewards inside and outside" and "security staff". In some notes at the foot of this single page document the following two paragraphs appear:
"Please note that more emergency exits would be dangerous. The structure would deflate at a higher speed and could arouse claustrophobic feelings in the visitors."
"It is difficult to be precise [about] the maximum wind speed as other factors are also important: where is the installation sited, which is the wind direction, temperature inside and outside the structure, gust, etc".
- I would merely observe that it is now common ground that this document was, to the extent that it purported to be a "risk assessment", a wholly inadequate risk assessment and one which ought not to have been regarded as sufficient by anyone placing reliance upon it. It is not disputed that it was prepared by Maurice Agis, but it is equally clear that the route by which it was received by the Council was via Giles Agis. Whether that is of significance in the context of the issues that I have to determine is a matter to which I will return later.
- Returning to the chronology of events, it was at about this time that Mrs Simpson was collecting together material that would form a pack relating to the Dreamspace project that she would take to the SAG meeting. I will return to that in paragraph 68 below.
- On 5 June she sent an e-mail to Nickie Gott confirming a conversation they had had the previous week:
"It looks as if the organisers want to keep costs to a minimum and as I mentioned last week, they are now bringing staff from the Liverpool leg of the tour to carry out most of the duties.
I have still not been able to speak to Maurice as yet so will keep you informed of any progress or changes as I expect there to be quite a few after the SAG meeting on Wednesday."
- On that day she had received a fax from Adecco (the staff recruitment agency which was likely to supply the local staff) confirming that all Adecco "associates" are covered by public liability insurance.
- As indicated previously, 7 June was the date of the SAG meeting. I should record what Mr Galloway, its Chairman, said of SAG:
"7. The Safety Advisory Group was not a Council organisational structure, but a partnership structure between the District Council and a number of other organisations, specifically Durham Constabulary, the Fire and Rescue Service, the Ambulance Service and Durham County Council. The role of that group was to provide advice and guidance to organisers of events that took place within Chester le Street, and the aim was to provide a standardised approach to the hosting of events that took place within Chester le Street on premises or land which either belonged to the District Council, or private land or highway.
8. The Group was set up in response to good practice and had been in operation since May 2005. It considered applications made by event organisers, and considered the application to exhibit the Dreamspace artwork."
- Denver Mead (see paragraph 46 above) did not at that time attend these meetings (his role being perceived at the time to provide corporate advice and directorial guidance to the Council on matters concerning occupational health, safety and welfare) and his deputy, Sue Kelly, who did usually attend, did not attend on this occasion. Since she did not attend this meeting and she never saw any of the documentation, it will never be known whether she, or the department for which she worked, would have raised questions about the structural safety of Dreamspace V. It is, however, clear that there would not have been the expertise within the Council to address these issues and it would have been necessary to engage independent consultants. Whilst the following words were spoken after the tragedy occurred and thus with hindsight, Mr Mead said this (in a statement to the police):
"Although I have not seen or examined the Dreamspace structure, from what I now know of it I would consider it to have similarities to such as a bouncy castle structure, the main difference being that a bouncy castle is not vented, where Dreamspace appears to have been.
The safety considerations of any such structures would be the tethering of it by ropes or ballast which is in tune with guidance issued in relation to other similar or associated types of structures such as bouncy castles or inflatable slides. I am now aware that Dreamspace has been exhibiting for in excess of ten years, there is, however, no guidance produced by the Health and Safety Executive in relation to this as a piece of art work. The manufacturer's guidance would have to be followed, in addition to H.S.E. guidance together with that of [the Amusement Device Inspection Procedures Scheme] and [the Inflatable Play Accreditation Scheme of the Performance Textiles Association] standards for the operation of such structures as bouncy castles and slides, as earlier described. Any calculations and necessary tethering would have to be provided by a structural engineer or from the manufacturer's guidance, which would have to be supplied by the operator of the structure or event. Any further concerns above tethering would be fire, crowd control, access and egress and would consider these aspects in line with H.S.E. guidance relative to public events, should my advice or opinion be sought".
- As I have said, it would seem clear from this that a unique structure such as Dreamspace would have been outside the normal range of competence for a local authority's Health and Safety team to assess for the purposes of structural safety and integrity. Given that Maurice Agis was the "manufacturer" of the structure then, unless he had commissioned structural engineers to provide advice about how to ensure that the structure was secure from movement caused by the impact of wind, what would have been provided as suitable anchorage would have been no more than the product of well-meaning guesswork.
- The information pack that Mrs Simpson put together for the SAG meeting contained a number of documents. She enumerated those documents in her statement to the police made on 18 August 2006 and I need not set them out in full. However, it included the "risk assessment" document to which I referred above. The pack had not been copied for each member of the group, but had simply been provided to its chairman, Mr Tony Galloway, the Director of Development Services with the Council (who was the overall manager of the department in which Mrs Simpson worked). Mrs Simpson thought that the risk assessment was not very comprehensive, but believed that any inadequacies were to be picked up by SAG. Mrs Lewcock also thought that it was very basic and had some doubts about whether it would be approved by SAG. However, it is clear that she too thought that any deficiencies would be raised by SAG and addressed thereafter. That, in due course, emerged not to be the basis of the involvement of SAG. The intention of the arrangements behind the introduction of SAG was that the ultimate decision over an event was to reside with the person or department promoting the event. However, it was accepted that that position had not been appropriately and effectively "cascaded down" to people in the position of Mrs Simpson and Mrs Lewcock by the time of the material events. It is undoubtedly in that context that there was what can best be described as a "systems failure" within the Council and which led, in due course, to its acceptance of guilt of an offence contrary to the Health and Safety at Work Act 1974 (see paragraphs 124-128 below).
- Mrs Simpson attended the SAG meeting and explained the nature of what was proposed. Apparently, the only person who raised queries in relation to the venture was Mr Cummings, the Fire Safety Officer. The minutes of the meeting recorded the following:
"TG [Mr Galloway] had asked Jo-Anne Simpson (the Leisure Services organiser) to attend the meeting whilst considering this unusual application for an inflated art structure. Jo-Anne Simpson was requested to outline the application. She outlined that it was on a National tour with Chester-le-Street being only one of three venues in the UK. It will be open to the public; an entrance fee will be charged; numbers allowed inside at any one time will be limited; to be deflated at end of day. Steve Cummings the Fire & Rescue representative had a number of queries and concerns over the means of escape. It was agreed that additional information held by Jo-Anne Simpson would be copied for him and he would provide a list of any additional queries/questions he may have."
- I will return to this shortly, but an exchange of e-mails between Mrs Simpson and Giles Agis needs to be recorded at this juncture. It occurred on 7 June. Mrs Simpson e-mailed him in these terms:
"Please find attached the prices that we have for the staffing and resources, all we need now is the go ahead from you and the exact date of arrival and we can confirm these bookings.
Is there any chance that you could get Maurice to give me a call today just to finalise a few details.
We are preparing invites for the launch event on Saturday 22nd July, can you indicate how much I can spend on refreshments etc."
- His reply was in these terms:
"With regards to the budget -
1. With the team coming from Liverpool we have already got radios x 4 all connected.
2. In the budget we do not have funds for St John Ambulance -if you need them that will have to be at the council's cost."
- Mr Grime and Mr Kennedy comment that this appears to be the only reply by Giles Agis to Mrs Simpson's e-mail and suggest that presumably Maurice Agis dealt with other questions. That may be so, but I do not think anything of significance turns on it.
- On 9 June Mr Galloway wrote to Mrs Simpson concerning the issues raised in connection with fire risks. As a result she made contact with Giles Agis in these terms:
"There are a couple of things that the fire service raised regarding the Safety Advisory Group meeting that they need clarifying in the fire risk assessment. They need to know the means of raising the alarm in case of a fire and they need to see information on how the staff/stewards will be given training on how to deal with an emergency situation.
The employment agency providing the 4 staff to assist with the erection and dismantling also need to have the confirmed dates …."
- Giles Agis replied early on the morning of Sunday, 11 June, in these terms:
"We think that the structure will arrive on the Tuesday morning but we need to talk to the haulage company first.
Raising the alarm in case of a fire will be the role of the site workers who all four of them will carry radios. The staff will all [have] been briefed on emergency situations.
The employment agency providing the four staff to assist with the erection and dismantling will only be needed for about four hours when the structure arrives and the morning after the closure day."
- Mrs Simpson replied to this e-mail on 14 June attached to which were a number of documents. They included a letter she had received from Mr Galloway about the fire concerns. In one paragraph of her e-mail she said this:
"I am happy to pull together as much information from what we have in answer to their queries but it will be helpful if you could forward the information that relates to the point about staff training, do you have a standard Health and Safety manual/brochure or flyer etc that you issue to staff which relates to emergency situations".
- She also mentioned the cost of accommodation for the support staff coming from Liverpool. In relation to that she said this:
"The only other and possibly cheaper option would be to source the staff from Durham independently. The safety advisory group will be more specific about staff training with this option and will request to see full method statements, staff training documents, risk assessments etc".
- She raised a few other issues concerning the budget.
- The e-mail that Giles Agis sent in reply in the papers before the court is undated, but he confirmed that the accommodation for "our staff" should be booked and said that they should have a discussion "about budgets". She replied on 22 June confirming that she had arranged the accommodation for the staff. She attached to the e-mail an Excel budget sheet and also asked for his confirmation that he had replied to the Safety Advisory Group.
- Giles Agis replied the following morning. He raised a query about the accommodation, commented that it was unnecessary to provide 18 fire extinguishers (because in Liverpool only two were used), raised a question about the electricity charges and attached the budget. He also said that he had not replied to SAG because the Dreamspace structure had been attacked by a youth who had cut it necessitating repair. He indicated that it was opening in Liverpool that day. (What happened whilst the Dreamspace was in Liverpool may be of relevance to the outcome of the issue I have to determine and I will review the evidence about that in paragraphs 107-119 below.) The e-mail also contained this sentence: "But the procedure for all emergencies is below". What appeared "below" (in the body of the e-mail) was as follows:
"Staff Briefing - Dreamspace.
Breaks: You will need to take a half hour break and two 15 minute breaks during your shift, make sure you talk to each other about when you take these.
The Public: Before people enter the structure please inform them about the rules of the structure make sure they understand that the structure is NOT a place for fast games or running and that you MUST move carefully and act in a respectful way, making sure not to disturb other people and their enjoyment of the experience.
On arrival, visitors must remove their shoes (please tell people that they leave them at their own risk, if they want to take in they can). They then are asked to pick a coloured cloak. They then can enter the structure.
When inside the structure: When you are inside the structure you are there to safeguard the structure and look to the safety of the general public. KNOW where the emergency exits are, in case and structure must be cleared in the event of an emergency. KNOW how to get to the exit from any point in the structure. Please make sure that you intercept groups or individual who may want to play tag or run around, this is not acceptable or encouraged.
Occasionally a person may panic as they may feel the space is confined, take them to the exit, but also reassure them that the structure is safe and secure.
When the cloaks have run out the structure is full, people should not go into the structure without a cloak (unless temperatures are very high inside) but if they insist on not wearing a cloak it is OK, but not encouraged.
The signs outside the structure inform the public that we are NOT responsible for any damage to loss of personal affects, that they bring them into the structure at their own risk.
Emergencies.
Radios: Keep all radios on channel 1 and make sure they are fully charged at the beginning of the day.
Fire: If there is a fire in the structure or from any of the equipment once it has been identified.
Radio to all staff using and make them aware of where the fire is.
Two staff to clear the structure by going to the back and moving to the front whilst all the time repeating in a loud firm voice 'Could you please leave the structure there is an emergency'. One staff member will have one of the portable fire extinguishers with them.
One person will remain at the entrance to supervise the public to go down the front steps.
One person on hearing fire MUST ring 999 and call the fire service. They will then take the second fire extinguisher and move around the outside of the structure.
These roles MUST be assigned each day to the team of workers.
DO NOT let people stop to put there shoes back on, as this will slow the evacuation.
Only when the fire service has given the all clear are staff and visitors allowed back onto the site.
A public disturbance: If any of the public become abusive or violent inside the structure. Contact another member of staff by radio for support. DO NOT try to deal with the situation by yourself. You should then ask the individual/group to leave. If they refuse then call the police. Assess the situation, it may not need the police.
First Aid: We will have a first aid kit onsite, in the cabin. In case of a serious accident, inform the team and call the emergency services."
- The provision of this information about the staff briefing and emergencies led to a very odd feature in the evidence given to me by Giles Agis. It is, I think, convenient to deal with it now and to indicate my finding about it. I will postpone an assessment of its relevance or otherwise until later (see paragraph 165 below).
- In his witness statement he had simply said that "[copied] into the document of 23 June is the text of a document entitled 'Staff Briefing Dreamspace' which Maurice had supplied to us." In his oral evidence he said that it was dictated to him by his father over the telephone. He said that, in response to Mrs Simpson's request, he contacted his father who dictated the information to him which he (Giles Agis) wrote down as he did so. He said that his father was "maybe in his studio" when this happened.
- I am bound to say that when he gave this piece of evidence it seemed intrinsically implausible. The terms of that which is recorded in paragraph 79 above must have been in written form well before 23 June 2006 because these instructions were almost certainly used for previous versions of Dreamspace. In any event, as Giles Agis confirmed to me, these instructions had been supplied to BIL in advance of the opening of the Dreamspace exhibition in Liverpool and, accordingly, must have been available to him (Giles Agis) well before that exhibition opened. The Dreamspace structure was constructed in Liverpool (with the active involvement of three BIL employees) during the first two weeks in June and, as I understand it, it opened (or was scheduled to open) to the public on 17 June. Shortly after it was opened on this occasion (or shortly before it was due to open), it was vandalised and had to be closed whilst repairs to it were effected. In his e-mail to Mrs Simpson on 23 June, Giles Agis referred to this and that is why, I imagine, he said that "we have repaired it and are opening today." 23 June was a Friday.
- That Giles Agis should have sat down and taken dictation from his father over the telephone on the day that the Dreamspace exhibition was opening to the public in Liverpool again seemed, as I have said, intrinsically implausible and, given that he must have had this document available for some time prior to that date, it became even more implausible. I do not accept this part of his evidence. What he had said in his witness statement was much nearer to the truth.
- What has troubled me is the way in which he gave this evidence. He did not, as he might have done, say that after five years it was difficult for him to remember the circumstances in which the material that formed the basis of the e-mail to Mrs Simpson came into his possession. That would have been understandable. However, the evidence was given with, initially at any rate, confidence. I regret to say that it had all the hallmarks of something made up on the spur of the moment. A matter I shall have to address in due course is whether that was simply a panic response to a question to which he did not have the answer at his fingertips or whether it represented something more significant in the context of the issues that I have to determine.
- Returning to the chronology that I interrupted to deal with that matter, on 28 June Mrs Simpson e-mailed Giles Agis passing on a request from SAG that exhibition staff should carry portable radios with them during breaks in the event of emergency, a request he was able to confirm by saying that the staff would carry radios all the time.
- On the same day she e-mailed Mr Cummings (and copied the e-mail to Giles Agis) in the following terms:
"Please find the answers to your additional queries raised today:
1. How long does it take to deflate the structure - 1½ - 2 hours
2. What are the dimensions of the fire exits - 9 feet high
3. Will the music be turned off in the event of an emergency -- the support workers will raise the emergency alarm and one worker will have responsibility to ensure that the music is turned off immediately.
4. Support staff are available to assist and react in the case of an emergency - yes staff will carry portable radios at all times and will take breaks in portacabin, not to leave the site of Dreamspace."
- The sequence of e-mails is a little difficult to follow at this point, but on 29 June Giles Agis sent an e-mail to Mrs Simpson (albeit starting with the words "Hi Steve" - presumably addressed to Mr Cummings) in the following terms which largely mirrored the e-mail to which I referred in the preceding paragraph:
"re: queries raised by Jo-Anne Simpson …
1. How long does it take to deflate the structure - 4 hours
2. What are the dimensions of the fire exits - 9 feet high
3. Will the music be turned off in the event of an emergency - the support workers will raise the emergency alarm and one worker will have responsibility to ensure that the music is turned off immediately.
4. Support staff are available to assist and react in the case of an emergency - yes all staff will carry portable radios at all times and will take breaks in portacabin, not to leave the site of DSPACE."
- This reassurance satisfied Mr Cummings who e-mailed his approval to Mrs Simpson the following day saying that he would not attend the SAG meeting on Tuesday (presumably, 4 July) and that "The Structure/Event will be inspected by the Fire Service on site ...". That is indeed what occurred after it had been erected. In fact the SAG meeting was cancelled.
- With this clearance, there was no impediment within the Council to the exhibition taking place. Over the next two weeks there were various further internal communications concerning the publicity and the ticketing. Certain e-mails sent by Mrs Simpson suggested that it was her perception that admission to the Dreamspace structure was very much a matter for Maurice Agis and under his control.
- Following the conclusion of the period when Dreamspace had been exhibited in Liverpool (see paragraphs 107-119 below), it was transported to Chester-le-Street. It had been packed away finally in Liverpool on 17 July and transported to Chester-le-Street on the following day, Tuesday 18 July. Three of the four BIL employees who had helped in Liverpool (see paragraph 109 below) arrived in Chester-le-Street on that day. Maurice Agis also arrived that day.
- Starting on 18 July and continuing over the next few days the team engaged to erect the structure got on with the task of preparing it for the opening on Saturday, 22 July. The team consisted of the three BIL employees, Maurice Agis and the four temporary staff supplied through Adecco (see paragraph 64 above). Mrs Simpson, who observed a fair amount of the work undertaken during these few days, said that the work was carried out under the direction of Maurice Agis.
- On Thursday 20 July Mrs Simpson e-mailed Aztec Colour Print asking for a quote for the printing of 500 A5 posters headed in this form:
Brouhaha International
presents
maurice agis
DREAMSPACE
2006
- Although Mr Grime and Mr Kennedy submit that there is no suggestion or evidence that Giles Agis saw or approved the terms of the poster (and he himself said that he did not see it until after the accident), it is almost certainly an adaptation of the poster designed for Liverpool that he had sent to Mrs Simpson as an attachment to an e-mail of 13 May in which he had said this:
"I have attached our flyer for the Liverpool event, if you want to use it in Chester-le-Street that is no problem we can send the design. We could get the flyers done here for the show in Chester-le-Street, or they can be arranged through your council OR Maurice will have to organize it. Let me know what you think is best."
- On 21 July Paloma Broton, Maurice Agis' partner, arrived in Chester-le-Street. It is clear from an e-mail sent the previous day by Mrs Simpson that she considered that Paloma Broton would "be responsible for the entry to the structure."
- During this day the structure was inflated fully and Mrs Simpson herself went into it during that evening. There had been no indication of any problems and she said that Maurice Agis appeared happy with the way the construction had been carried out.
- There was an official opening of the exhibition, attended by local officials and by Maurice Agis, on Saturday 22 July at about midday and it was first opened to the public in the afternoon. During the morning the fire officer had carried out his inspection, as previously planned, and he indicated to Mrs Simpson that he was happy that the structure was safe from the point of view of the fire precautions and that it complied with the recommendations of the SAG.
- The arrangements on the ground were that the three BIL employees acted as stewards in and around the structure during the period it was open to visitors and that Maurice Agis and Paloma Broton were present throughout. In an expression used by Anna Kronenburg in relation to the arrangements in Liverpool (see paragraph 113 below), Michael Grunnigle said that the three BIL employees "rotated the tasks" that were required, namely, supervising inside the structure, issuing tickets and providing cloaks.
- Those arrangements continued to obtain during the Sunday after the structure opened to the public at midday until the disaster occurred at about 15.40 in the afternoon.
- During the period of a few hours before the disaster there had been some occasions when concerns had arisen about the effect of wind on the structure. I will, for present purposes, simply summarise what those who were present when these concerns arose said about what had happened. It is, perhaps, worth recording that the day was very hot and, according to most witnesses who commented on the weather conditions, there had been no obviously strong breezes or winds in evidence, one saying that "it was really calm that day".
- The three BIL employees who were present on that day were Tony Davies, Anna Kronenburg and Michael Grunnigle. As will appear, they had also played a part in the arrangements in Liverpool. Each described what had happened in relation to the effect of the wind that day before the accident happened.
- Tony Davies, in his statement to the police made the day of the incident, said this:
"Very soon after it opened I was asked by Maurice to go inside to mop the floor. I would guess there was around ten people inside. Once inside I saw that in some places the wind was getting under the structure and was lifting the floor around four feet off the ground. It was almost like waves travelling across the floor of the structure. I had seen this happen in Liverpool. The procedure was to ask people to leave until it was deemed safe to go back inside. On some days in Liverpool this meant it was shut for whole days whilst on other occasions it might only be for an hour. In Liverpool there was a manager who made the decision to reopen it.
On this occasion when I saw it lifting off the ground I immediately asked people to leave. As people got to the entrance Maurice appeared to have a look. He said it was okay and some people went back in. Maurice then asked me and [Michael Grunnigle] to peg down some more of the columns. I would estimate that the structure was secured to the ground by rope and pegs in six places on each side initially."
- In his second witness statement to the police he described this incident in much the same fashion and said that, so far as he was aware, this was the only time that the structure lifted prior to the serious accident later in the day.
- Michael Grunnigle, in his witness statement made on the day of the incident, said that at some stage around about 12:30 pm he was aware that the structure lifted about 18 inches off the ground for about 1½ seconds following which Maurice Agis evacuated the structure. Some more ropes were applied.
- Anna Kronenburg spoke of an occasion when she was hoovering inside the structure before it was opened to the public when she felt it lift off the ground. She told Maurice Agis who asked for some extra ropes and pegs to be fitted.
- Maurice Agis made no reference to these incidents in the statement he gave to the police.
- That was what was said about the events of that day before the terrible incident in the afternoon. Before turning to the conclusions to be drawn in the context of the legal and factual issues, it is necessary to backtrack a little in the chronology to describe what happened whilst Dreamspace V was being exhibited in Liverpool.
Dreamspace V in Liverpool
- According to a flyer for the Liverpool exhibition in the papers before the court, the period during which Dreamspace V was to be exhibited in Liverpool was from Saturday, June 17, to Sunday, July 16, between 12 noon and 7 pm each day. However, for the reasons given in paragraph 83 above, the effective period during which it was open was from Friday, 23 June, until Sunday, July 16.
- It was sited in the grounds of Liverpool Metropolitan Cathedral on what is known as the "plateau" or the "piazza". There was no direct local authority involvement in the arrangements made for the exhibition because it did not involve the use of local authority land.
- BIL accepts that it had a role in connection with the arrangements for this exhibition although its argument is that its involvement in Liverpool was significantly different from its involvement at Chester-le-Street. I will return to that argument later (see paragraph 155 below). As previously recorded (see paragraph 82), in the first instance, BIL employees glued together the individual units (that had been manufactured in China) so as to create portions of the overall structure. This took place in a warehouse rented by BIL very close to where BIL's premises were situated. In addition to Tony Davies, Anna Kronenburg and Michael Grunnigle there were two architecture students from Liverpool University (and possibly others) who, under the direction and supervision of Maurice Agis, carried out this task.
- The units that were to comprise the structure arrived in Liverpool on 24 May and were glued together in the way I have indicated over a period of a week or so thereafter. Once these portions of the overall structure had been constructed they were taken to the site and themselves glued together to create the final form of the structure. Before the structure could be opened to the public it was necessary for the units to be inflated, a process achieved using six centrifugal air "blowers" as they have been described. These air blowers were powered by electricity.
- Unlike the position when the structure was erected at Chester-le-Street, the anchorage when erected in Liverpool was afforded by eight water-filled ballast tanks on each side of the structure. The comment has to be made that the "risk assessment" referred to in paragraph 60 above, which refers to the provision of stakes, plainly cannot have been prepared for the purposes of this exhibition even though it was, apparently, provided to BIL as part of the preliminary paperwork by Maurice Agis.
- When the exhibition was opened, BIL employees acted as stewards and one, "Babis" Charalabos Pavlidis, was placed in overall charge on the occasions when Maurice Agis was absent.
- In one of her witness statements to the police Anna Kronenburg said that she "rotated with other staff to carry out different functions … selling tickets, handing out cloaks or standing inside the structure." She described "Babis", who she knew as an actor from Greece, as the "project manager". If anything went wrong, she said, the decision as to what would happen was his. One of the matters she described as requiring a decision by him from time to time was what to do when the weather conditions were windy. She said that he would always close Dreamspace in that situation. She said that he always used to monitor the weather forecasts and if it was going to be windy he would not open to the public. Furthermore, if it became windy, he would close the exhibition. In her first witness statement, made on the day of the tragedy, she said that there were a number of times in Liverpool when the structure had to be closed because of high winds. In her second witness statement, given about two months later, she said that "we were closed a lot of the time" in Liverpool and she spoke of "a couple of occasions" when the structure did lift as a result of which "Babis" made the decision to close it down.
- Michael Grunnigle said much the same thing. He said that "Babis" would not open the exhibition if wind was forecast and he said that "we had to close on a couple of occasions when the wind picked up." He said that the structure "occasionally lifted off the ground by about seventy centimetres" as a result of which the structure was evacuated.
- Tony Davies also said in his witness statement prepared some two months after the tragedy that "Babis" would not open the structure when it was in Liverpool if wind was forecast. He recalled that the site in Liverpool was "very exposed to the wind", but thought that the structure was only closed once after it had been opened because of the wind.
- No statement ever seems to have been taken from "Babis" and so his recollection is not available for consideration. (He returned to Greece after the exhibition in Liverpool and played no part in the arrangements at Chester-le-Street.) Nonetheless, it is plain from the recollections of those to whom I have referred that the incidence of wind did represent a significant issue to be taken into account in determining whether the exhibition should be opened or, if opened, should be allowed to remain open if windy conditions materialised.
- Giles Agis said, when giving evidence, that he remembered that Dreamspace had been closed for the whole day on occasions during the time in Liverpool. He accepted, when asked about it by Lord Faulks QC, that he had not himself told anyone at Chester-le-Street that it had been closed in this way and that he could appreciate that, had he been in the Council's shoes, he would have wished to have known about it. There is no evidence that this factor was conveyed by anyone else who knew about it in Liverpool to anyone at the Council.
- In his statement to the police, made on the day of the tragedy, Maurice Agis said that he "had no problems with the exhibit during" the period in Liverpool.
- Before dealing with the distinction sought to be made on behalf of BIL between its involvement with the Dreamspace project in Liverpool and Chester-le-Street (and its contemplated involvement in Southwark) I should deal with one further factual matter simply for completeness. Whatever relevance it might have had to the responsibility of Maurice Agis for what happened, there is no basis for thinking that it has any impact on the issue of the responsibility either of the Council or BIL for what happened at Chester-le-Street. It concerns an accident in Germany involving a very much earlier version of Dreamspace. Mr Hoyland mentioned it briefly in his report (see paragraph 21 above).
The incident in Germany
- That incident occurred in 1986 (which seems to be before the Dreamspace programme began) in Travemünde in northern Germany. There is little in the material before me to describe the incident in detail. However, it appears that an early structure with some similarities to the Dreamspace structure lifted into the air and some people were injured as a result. However, it seems that the authorities in Travemünde put the incident down to a freak storm and nothing more became of the matter.
- In her sentencing remarks following the criminal proceedings Cox J said this of this incident:
"I do not regard the previous incident in Germany, when a different and small inflatable structure designed by [Maurice Agis] had lifted off the ground in a storm, as having any real significance. It happened long before, in 1986, when the evidence was that a sudden freak tornado had caused this incident. [Maurice Agis] was not prosecuted for any offence, and he had since enjoyed 20 trouble-free years of such exhibitions."
- There is no suggestion that the Council should have been aware of this incident and it would, in any event, be difficult to say that something that occurred 20 years earlier in different circumstances with a different structure would of itself have alerted the Council to the potential dangers of the present structure. Equally, there is no evidence that Giles Agis knew about this incident with the result that his knowledge could be imputed to BIL.
- The highest relevance that can be ascribed to the incident is in relation to the duty of care that Maurice Agis undoubtedly owed to those who entered any structure of his design and manufacture. There is no doubt at all that he was aware that windy conditions could cause danger to those in or around the Dreamspace structure. It is possible that this incident heightened his awareness of that issue. The problem, however, is that at no stage did he ever address those dangers with the kind of professional expertise that ought to have been commissioned.
The criminal proceedings
- I have already alluded briefly to the criminal proceedings. The Council, BIL and Maurice Agis faced certain allegations. The Council and BIL each pleaded guilty to offences under the Health and Safety at Work Act 1974.
- BIL pleaded guilty to a breach of section 2(1) of the Act, namely, that it had failed to ensure, so far as reasonably practicable, the health, safety and welfare of its employees whilst carrying out their work and duties in relation to the Dreamspace structure. The basis of BIL's plea was that it did not carry out its own risk assessment of the structure but relied on an inadequate assessment produced by Maurice Agis. BIL was fined £4,000, Cox J treating it as effectively "an impecunious charitable organisation" with reserves of only £11,000.
- The Council pleaded guilty to a breach of section 3(1) on the basis that it had not, so far as reasonably practicable, ensured that members of the public were not exposed to risks to their health and safety whilst using recreational facilities provided by the Council. The basis of that plea of guilty was that the Council had failed adequately to scrutinise the "risk assessment" carried out by Maurice Agis. It was fined £20,000, Cox J observing that any fine imposed would realistically be paid by "the taxpayer and those recipients of the much needed public services in this area, the residents of Chester-le-Street".
- Maurice Agis was convicted of failing, in contravention of section 3(2) of the Act, to conduct an undertaking in such a way as to ensure, so far as was reasonably practicable, that members of the public were not exposed to risks to their health and safety. The jury at Newcastle Crown Court was unable to agree in respect of two counts of manslaughter (based on an allegation of "gross negligence" on his part) arising from the deaths of Claire Furmedge and Elizabeth Collings and the prosecution subsequently offered no evidence in respect of those allegations. The £10,000 fine imposed upon him by the trial judge, Cox J, was reduced on appeal to £2,500 largely because of his impecuniosity, age and ill-health. Goldring LJ said this in expressing the conclusion of the court:
"We, of course, are very conscious that [the fine substituted] bears no reflection to what happened and cannot even begin to reflect the suffering to which the judge referred. However, these are very unusual circumstances. We are dealing with a very elderly appellant who is very ill."
- The outcome of the criminal proceedings so far as penalty is concerned is only of very marginal relevance to the issues I have to consider. It cannot operate as a basis for apportionment of responsibility as between the Council and BIL if I find that apportionment is called for.
The issues to be considered and the competing arguments
- The first issue is to determine whether BIL owed a duty of care to visitors to the Dreamspace structure other than its own employees. If so, how should responsibility for the damages payable to those visitors who were killed or injured in the accident be apportioned as between it and the Council having regard to the test set out in section 2(1) of the Civil Liability (Contribution) Act 1978? This provides that the amount of a contribution which a party should make depends on what the court considers is "just and equitable having regard to the extent of that person's responsibility for the damage in question".
- As I have indicated earlier (see paragraph 15), BIL denies that it owed the members of the public who entered the structure in Chester-le-Street a duty of care. It seeks to draw a distinction between its potential liability had an accident of the nature that occurred at Chester-le-Street occurred in Liverpool. Giles Agis confirmed that the following paragraph in his witness statement (which I suspect was drafted with the help of legal advice) reflected his considered view of the situation:
"If what happened in Chester-le-Street had happened in Liverpool I would have had no hesitation in accepting that some responsibility should lie with [BIL] but beyond supplying some labour to work under the supervision of [Maurice Agis] we played no part in the assessment or implementation of the securing of the Dreamspace in Chester-le-Street. We had no responsibility for the safety of the public at that location."
- For reasons to which I will turn shortly Lord Faulks QC and Mr Warnock submit that there was no material distinction between the responsibilities undertaken in respect of Dreamspace by BIL in Liverpool and those undertaken at Chester-le-Street. Accordingly, they submit that the acceptance of potential responsibility for an incident of the nature concerned had it occurred in Liverpool should be taken as an acceptance of responsibility for what actually happened at Chester-le-Street.
- Before examining that argument it is worth setting out briefly the legal context. It is important to remember that Maurice Agis was undoubtedly negligent in not taking reasonable steps to ensure that the Dreamspace was properly and safely anchored such that a wind of foreseeable strength could not cause the anchorage to fail. If, of course, he had been acting as the agent of either the Council or BIL then either could have been liable vicariously for that negligence. Subject to one matter to which I will refer below (see paragraph 174), that is not essentially the way in which the Council seeks to place some responsibility upon BIL. It argues that BIL owed a direct duty of care towards members of the public in the circumstances I will outline. It follows, therefore, that Maurice Agis' negligence has to be taken as negligence of which he was guilty in his personal capacity.
- Since Counsel on both sides seek to draw support for their submissions from the summary of the applicable principles in this broad area given by the Court of Appeal in Glaister v Appleby-in-Westmorland Town Council [2010] PIQR P6, I should set out what was said in that case. The circumstances were that Mr Glaister suffered serious injuries, leaving him with permanent disabilities and greatly reduced earning power, when he tried to intervene when a horse broke free from its tether at the Appleby Horse Fair. He was kicked in the head when he tried to take hold of its lead. The owner of the horse was never identified and Mr Glaister brought an action against the Appleby-in-Westmorland Town Council. His wife and daughter brought proceedings in respect of psychological injuries that they said had been caused by witnessing the accident. The allegation was that the Council was negligent in failing to arrange suitable public liability insurance to cover the circumstances of the accident. It was not suggested that the Council was in any way to blame for the accident. The Council was not the occupier of the land where the fair was held, nor did it cause or direct the various activities of the fair which took place beyond its own boundaries. It was involved, with other bodies, with a committee which had no formal constitution, or duties or powers to direct operations relating to the conduct of the fair, but whose various constituent members had different statutory powers and duties which bore on different aspects of the fair, such as environmental issues, highway safety and fire precautions. The Recorder held that the Council did owe the kind of duty alleged and was in breach of that duty. The Court of Appeal allowed the appeal of the Council.
- When reflecting generally on the circumstances when a duty of care might arise, Toulson LJ (with whom Lord Neuberger MR and Jacob LJ agreed) said this:
"45. A defendant, D, is not ordinarily liable to a claimant, C, for personal injury or physical damage caused by the negligence of a third person, T, merely because D could have foreseen and prevented it. Something more is required to place on D a duty to protect C from the consequences of foreseeable negligence on the part of T. The reasons for requiring more are partly to do with the nature of our system of tort and the concept of blame which underlies it, i.e. matters of legal policy, and partly pragmatic.
46. The general policy of the law does not extend to holding D legally to blame for injury to C caused by the negligence of T on the ground that D could have prevented it. The moral tenet that you shall love your neighbour as yourself, and thus protect him from harm which you can foresee he may suffer from a third person's fault, has not been converted into a legal principle. As a matter of generality, to hold a person liable to a victim for injury for which the defendant was not directly to blame, but was caused by the negligence of a third person which the defendant could have foreseen and prevented, would shift the basis of tort liability towards a system for the transfer of losses resulting from injuries not merely caused by the default of the defendant but which a defendant might have been able to prevent. The practical consequences of such a policy shift would be potentially very far reaching.
47. I emphasise that this is no more than a starting point, albeit an important one. There are many cases where D may be liable to C for injury caused by the negligence of T, but these are usually cases where either a particular relationship between the claimant and defendant is such as to place the defendant under a duty of care for the safety of the claimant or a particular relationship between the defendant and the third person is such that the defendant should carry a responsibility to protect others against the conduct of the third person. Examples of the first category are cases where the defendant is an occupier of land and the claimant is a lawful visitor, and cases whether the defendant is the employer of the claimant. An occupier of land owes a general duty of care for the safety of lawful visitors, and this will include responsibility to see that visitors are reasonably safe from activities by a third person which the occupier permits to be carried out on his land. Similarly an employer owes a general duty for the safety of his employees, including safety from the foreseeable behaviour of other employees. Cases where the relationship between the defendant and third person is such as to give rise to liability to a claimant for damage caused by a third person include cases where the third person is an employee or agent of the defendant, who is held responsible for his conduct, and cases where the defendant has a quasi-parental responsibility for the acts of the third person, such as Home Office v Dorset Yacht Co Ltd [1970] AC 1004 (where prison officers took young offenders on an outing and allegedly failed properly to supervise them)."
- For reasons to which I will turn shortly (see paragraph 136), Mr Grime and Mr Kennedy submit (i) that BIL was not an "occupier" of the Dreamspace structure at Chester-le-Street and (ii) that its employees were not in breach themselves of any duty in relation to the erection or evacuation of Dreamspace so that there can be no vicarious liability on the part of BIL. They submit that the effective cause of the accident was the breach of duty of Maurice Agis (whether in negligence or under the Occupiers' Liability Act 1957) and that, accordingly, this case falls into the category of case referred to in the first two sentences of paragraph 47 of Toulson LJ's judgment. It is submitted that it cannot reasonably be suggested that there was any relationship between BIL and the injured claimants or that there was a relationship between BIL and Maurice Agis such that it had a responsibility to protect others from the consequences of his conduct. For this reason they submit that the analysis in Toulson LJ's judgment is supportive of BIL's case.
- Analysing the situation in this case by reference to Toulson LJ's analysis in Glaister is plainly helpful although I do not think it necessarily answers the real question in this case. However, I am inclined to think that there is an element of circularity in the argument advanced by Mr Grime and Mr Kennedy based upon what was said in Glaister. As it seems to me, if BIL was an "occupier" of the Dreamspace structure, that would undoubtedly mean that it owed the common duty of care to all lawful visitors to the structure, whether employees or visiting members of the public. The extent of that duty would embrace a duty to ensure the intrinsic safety of the premises. Even if BIL was not an "occupier" of the Dreamspace structure at Chester-le-Street, but undertook some control of or responsibility for what happened in the structure whilst it was there short of occupying it within the legal meaning of that expression, that may not necessarily absolve it from ensuring that reasonable steps were taken to ensure the safety of those who entered it even if some other party or parties (in this case Maurice Agis and the Council) also had a similar co-existing responsibility. In that context, one is not talking about a duty to prevent from occurring a third party's breach of duty that might cause injury, but about a duty to prevent the risk of injury irrespective of any risk of injury that might arise from a third party's breach of duty.
- As I see it, the two essential questions in this case are (i) whether BIL was an "occupier" within the Occupiers Liability Act 1957 and/or (ii) whether there was something in the nature of the tasks undertaken by BIL in relation to the Dreamspace structure at Chester-le-Street that required it to question the adequacy of the "risk assessment" provided to it by Maurice Agis and, accordingly, to institute steps to check for itself the intrinsic safety of the structure before being a party to permitting the entry into it either of its own employees or members of the public.
- Lord Faulks and Mr Warnock submit that the answer to both questions should be in the affirmative. There is some overlap between the factors relied upon, but so far as the second issue is concerned they emphasise (a) that BIL was an "organiser" of the event and (b) the proximity there was between that activity and those who visited the structure. They submit also that their case on behalf of the Council does not depend upon BIL being responsible for the breach or breaches of duty of Maurice Agis, but upon its own fault in entrusting health and safety matters to him - in other words, without taking independent steps to verify the intrinsic safety of the structure.
- They rely upon the fact that BIL is (and was at the material time) a professional project manager/organiser of arts events, operating nationally and internationally, and that it accepts and/or the evidence demonstrates that it played the following roles in relation to the proposed Dreamspace tour:
i) it assisted Maurice Agis in obtaining funding for the tour from the Arts Council and administered the budget for the tour for which it was due to receive a fee of £9,000;
ii) it provided labour and premises for the initial assembly of the Dreamspace V structure in Liverpool after its constituent parts arrived from China and the labour thus provided materially assisted in that initial assembly;
iii) it erected and managed on the Metropolitan Cathedral site the Dreamspace structure when it was in Liverpool under Maurice Agis' direction and supervision;
iv) through its own labour force it dismantled the structure before it was transported to Chester-le-Street;
v) it arranged the transportation of the structure to Chester-le-Street;
vi) it erected the Dreamspace structure at Chester-le-Street under Maurice Agis' direction and supervision through its own labour force (namely, Tony Davies, Anna Kronenburg and Michael Grunnigle) and through the casual labour provided by Adecco (arranged by the Council but paid by BIL);
vii) its staff acted as stewards both inside and outside the Dreamspace structure;
viii) it played an active role in relation to the publicity for Liverpool and Chester-le-Street;
ix) it provided its public liability insurance certificate in response to a request from the Council for evidence of such insurance for the event in Chester-le-Street.
- Do those factors, either taken individually or collectively, result in BIL being an "occupier" of the structure at Chester-le-Street within the 1957 Act? I say "an" occupier because it is well-established that there can be more than one occupier. Relying, inter alia, upon Wheat v E Lacon & Co Ltd [1996] AC 552, Fisher v CHT Ltd (No. 2) [1966] 2 QB 475, AMF International Ltd v Magnet Bowling Ltd [1968] 1 WLR 1028 and Ferguson v Welch [1987] 1 WLR 1553, Clerk & Lindsell (20th ed., para. 12-08) contains the following proposition: "There may be more than one occupier of the same premises, each under a duty to use care dependent on his degree of control, and each liable to a visitor (with a claim to contribution over)."
- Omitting footnotes, Clerk & Lindsell contains the following paragraphs of assistance in determining the answer to the question "Who is an occupier?":
"Owners, Lessees and Licensees
12-09
An owner-occupier is obviously an occupier within the Act. However, the status of occupier is normally dependent on some degree of actual physical control Thus a landlord who lets premises to a tenant is treated as parting with all control and is not an occupier under the Act, even where he has undertaken to repair. On the other hand, a landlord remains the occupier of parts of premises retained by him and excluded from the demise, such as a common staircase, an entrance hall, a roof, a balcony, or a forecourt. A licensor, as against a lessor, may remain occupier of any part of the property he "lets", if he retains a sufficient degree of practical control over it. Thus requisitioning authorities and those in possession by way of compulsory purchase have been treated as occupiers of the requisitioned premises, even where the premises have been in use, in part or whole, by persons licensed by the authority; and again, where a farmer turned over a barn to her mother for use as an equestrian centre she was held to remain the occupier. However, if the licence involves a parting with exclusive possession to the tenant, it is suggested that the technical difference between lease and licence should be disregarded and that the licensor should not count as an occupier.
Where no-one is in physical control of premises, for example where they have been abandoned, it is submitted that whoever has legal title should be deemed to be the occupier. Thus it has been held that the buyer of empty house becomes the occupier of it on conveyance, even if he has not taken possession of it. In Ireland the owner of an uninhabitable but picturesque castle who held it on trust to allow public access was regarded as an occupier; and in Australia a local authority was similarly treated in respect of a wilderness area held on trust for the public.
Other Occupiers
12-10
Apart from owners and lessees, a person is likely to be regarded as an "occupier" if he has a sufficient degree of control over premises to be able to ensure their safety, and to appreciate that a failure on his part to use care may result in injury to a person coming on to them. The control need be neither entire nor exclusive. So someone with the immediate supervision and control of premises, such as a builder in de facto control of part of a house, may be an occupier, whether or not he has the power of permitting or prohibiting the entry of other persons to it. Furthermore, it is submitted that someone who does have the legal right to invite or permit others to come on them, such as the concessionaire of space at a fairground, will almost certainly be an occupier. It is submitted that for these purposes the occupier's control need not necessarily be lawful: thus, it is suggested, there is no reason why a squatter should not be liable under the Act.
In a suitable case one may of course occupy premises through a servant or agent.
12-11
On the basis of the above principles, therefore, a builder or contractor may be liable as an occupier, for example if he has practical control of part of the premises.
"The answer in each case depends on the particular facts of the case and especially on the nature and extent of the occupation or control in fact enjoyed or exercised by the defendants over the premises."
Thus in Bunker v Charles Brand & Son Ltd contractors building a tunnel were held to owe a duty under the 1957 Act in respect of the state of the tunnelling machine they were using. So also, someone who regularly maintains premises may be an occupier; thus in Collier v Anglian Water Authority, a water authority which kept a sea-wall in repair for the local authority was held liable as occupier to a holidaymaker who tripped over a loose paving-stone. But the element of maintenance must be substantial: merely cutting the grass in summer will not suffice. Some difficulty arises over those who occupy land which gives access to other premises over which they have no interest: for example, where a first-floor window abuts on the unfenced roof of a factory next door. They have, in a sense, de facto control of the neighbouring premises: but in Bailey v Armes, the Court of Appeal held that this did not make them occupiers of the neighbouring premises."
- It is clear from this analysis that the issue of who is an occupier (whether sole or one of a number) is a fact sensitive issue. It normally requires some degree of actual physical control over the premises even if it is not entire or exclusive. An appreciation that a failure to take care could result in injury to someone coming onto the premises is another factor.
- For present purposes, I intend to treat Maurice Agis as someone independent of BIL. In other words, I do not treat him as employed by BIL (which he was not) or its agent for any purpose. As to that there is an issue to which I will return (see paragraph 156). However, at present I will treat him as wholly independent of BIL.
- In my judgment, even treating Maurice Agis as a party wholly independent of BIL, BIL became an occupier of the structure at Chester-le-Street through a combination of factors. Through its employees it played an active and central role in the initial construction of the units that comprised the Dreamspace structure, it erected the final structure in Liverpool, it dismantled it, it transported it to Chester-le-Street and erected it there. The intention was (as in fact occurred until the tragedy struck) that the same employees would act as stewards inside and outside the structure in the way I have described previously. To the extent that they played a part (or were intended to play a part) in the control of who went into the structure and how they behaved whilst inside they should be treated as having "some degree of physical control" over the premises. To the extent that, albeit under someone else's direction, they helped construct it gave BIL's employees "some degree of physical control" over its construction.
- For all those reasons, and without more, BIL was an occupier of the structure. I should, perhaps, emphasise that I accept Mr Grime's argument that merely providing labour in connection with the stewarding would not of itself have rendered BIL an occupier for the purposes of the 1957 Act. However, in my judgment, this case is far removed from that scenario. The stewarding represented merely one part of a continuum of activity engaged in by BIL, through its employees, that, taken as a whole, resulted in BIL becoming an occupier within the law.
- Maurice Agis, if independent (as I consider that he was: see paragraph 156 below), was another occupier. It is, to my mind, a moot point as to whether the Council was also an occupier. BIL suggests that it was. I do not have to resolve that issue for present purposes because the Council accepts liability for not carrying out its own risk assessment. That is closer to an admission of negligence than to an admission of being an occupier of the structure for the purposes of the 1957 Act. If I had to decide, I would have been inclined to say that the Council was not an occupier because, whilst it owned the ground upon which the structure was erected, it did not have (or purport to exercise) any degree of physical control over what occurred in relation to the structure of the premises or to those going into it. Merely being concerned, as plainly it had to be, about, for example, fire precaution issues did not render it an occupier. However, as I say, the issue does not require a definitive decision.
- If I was wrong that the specific factors I have identified were sufficient to constitute "occupation" by BIL for the purposes of the 1957 Act, I consider that an additional factor tips the balance yet further in the direction of that conclusion: that factor is an appreciation by BIL that any failure by it to use care in relation to the structure could cause injury to people using it. An appreciation of that nature yields a broader perspective which, added to the specific factors I have mentioned, confirms its role as an "occupier".
- It is not clear that BIL (through Giles Agis) did have such an appreciation as a matter of fact. However, there is no doubt at all that it ought to have had such an appreciation. The admission that it failed in its duty of care to its employees (see paragraph 125 above) is, in reality, a sufficient admission that it failed to recognise the dangers to which anybody entering the structure was being exposed. BIL recognised that it ought to have carried out its own risk assessment or, at least, that it ought not to have relied upon the wholly inadequate risk assessment provided to it by Maurice Agis.
- Lord Faulks and Mr Warnock were justified in submitting that Giles Agis knew that his father lacked any engineering qualifications, expertise or knowledge other than that which he had picked up in the course of his artistic work. They did not use the expression "trial and error" when describing the knowledge that he had thus picked up over the years, but on the evidence available it does not seem an unfair expression to use. Giles Agis was aware (or ought to have been aware if he had addressed the matter) that the risk assessment provided to BIL by his father in advance of the Chester-le-Street exhibition was "basic" and that it was for a previous version of the Dreamspace installation. The evidence was not entirely clear as to whether it had been supplied by Maurice Agis to BIL in connection with the Liverpool exhibition (it was certainly in Giles Agis' hands by no later than 1 June: see paragraphs 59-61 above), but it was obviously inappropriate for Liverpool because there is reference within it to the anchorage being provided by stakes rather than by the water ballast which was in fact used there. He ought to have appreciated that no specific analysis of the risks posed by Dreamspace V had been undertaken by his father and that the exhibition at Chester-le-Street would effectively be the first trial of the anchorage for this structure.
- All that, in my view, adds force to the proposition that BIL ought to be treated in law as an occupier of the structure for the purposes of the Occupiers Liability Act. I recognise, of course, that the boundary between what might be termed "pure" occupation (arising from the mere fact of a degree of physical control over the premises) and a broader duty of care in negligence is somewhat blurred in this analysis. However, that seems to be the effect to which the approach reflected in the authorities leads. For the moment, however, remaining within the compartment of "occupation", I consider that this factor is a strong one for resolving any doubt there might have been about whether the factors previously identified were sufficient to amount to occupation.
- The final stage in the journey towards resolving the question of "occupation" arises from the knowledge that BIL obtained whilst the Dreamspace V was in Liverpool about its potential instability in windy conditions. Whilst it is, of course, always easy to be critical with the wisdom of hindsight, it is difficult to see how some warning bells were not heard ringing during this period. There was clear evidence that the anchorage used in Liverpool was not sufficient for certain conditions (which could not in themselves be described as wholly unusual conditions). Quite why this did not prompt some questions on the part of BIL is difficult to understand even if its focus was solely on its own employees. How could it be sure that a gust of wind might not raise the level of the structure sufficiently to cause one of its employees inside it to fall and sustain injury? Without asking the question of whether the provision of stakes at Chester-le-Street would be sufficient to prevent this risk when the structure was there, BIL could not have addressed the issue of their safety. It is but a small step to move from that to asking about the safety of anyone else entering the structure.
- It seems to me that, if there was any doubt about the question of "occupation", then so far as that issue is influenced by an appreciation of danger within the structure if proper care was not shown, this consideration would provide yet further support for the conclusion that there was "occupation" within the meaning of the law. Given that BIL would have known that its employees were going to be erecting the structure in Chester-le-Street, it seems to me incontestable that BIL owed a wider duty of care to those who entered the structure in consequence of the work carried out by its employees. There can be no refuge for BIL in the excuse that the work was to be carried out under Maurice Agis' supervision because, at least by this time, there were additional questions that needed to be addressed over and above those that ought to have been addressed when it was appreciated, as it should have been, that the risk assessment provided by him was wholly inadequate.
- For the individual and cumulative reasons I have given, I consider that BIL must be treated as having been an occupier of the Dreamspace V structure at Chester-le-Street. I would have concluded that it did so from the moment it became apparent that its employees were going to play the same role at Chester-le-Street as they did in Liverpool. That became apparent towards the end of May (see paragraph 55 above), very much at the same time as the "risk assessment" was in Giles Agis' hands (see paragraphs 59-61 above). In my view, the basis for the conclusion continues to gather strength with the passage of time thereafter.
- I have addressed the issue largely in terms of the question of "occupation" of the structure. However, once BIL assumed some responsibility for the structure of the Dreamspace V exhibition in Chester-le-Street by sending its employees to erect it and supervise it as they had in Liverpool, particularly against the background of the inadequate "risk assessment" and the "warning bells" that should have been heard in Liverpool, I can see no justification for saying that it did not owe a duty of care in negligence. It seems to me that all the Caparo requirements were in place.
- This seems to me to be the analysis that justifies the forensic point made by Lord Faulks and Mr Warnock that it is unrealistic for BIL to seek to distinguish between its role in Liverpool and its role in Chester-le-Street and why the paragraph in the witness statement of Giles Agis quoted in paragraph 130 above is unsustainable.
- I have already (in paragraph 146) alluded to the conclusion I have reached that Maurice Agis is to be regarded from the legal point of view as wholly independent of BIL. Whatever words Giles Agis may have used in the witness box in response to certain questions from Lord Faulks, I do not consider that in law Maurice Agis was the "agent" of BIL in connection with the proposed Dreamspace tour. If, of course, he had been then all the conclusions I have reached about BIL's legal responsibilities would be justified on the basis of its vicarious liability for his actions as its agent. However, the highest the relationship can be put, it seems to me, is that there was some kind of loose partnership (not in the legal sense) between him and BIL over the promotion and organisation of the tour. In one sense, he was a "client" of BIL (given that BIL was intended to receive £9000 from the Arts Council grant obtained in his name for its services in relation to the tour). But however the relationship is described, it does not, in my view, amount to one in which BIL became directly responsible for any breach of duty on his part.
- Given the conclusion I have reached, namely, that BIL was in breach of its duty to the claimants as members of the public who entered the Dreamspace V structure at Chester-le-Street, and given the acceptance of liability towards the claimants by the Council, the question of apportionment does arise.
- Before I move to that issue, I should deal with one further matter that I foreshadowed earlier when dealing with a concern I had about one feature, in particular, of the evidence of Giles Agis (see paragraphs 80-84 above). I indicated my view of his evidence on that matter when mentioning the issue to which it was directed. There is another feature of the position taken by BIL (for which, of course, he was the effective personification in the litigation) that has given cause for question. It relates to disclosure concerning earlier dealings between BIL and Maurice Agis.
- The position he took in his witness statement of 4 February 2011 was as follows:
"To the best of my recollection towards the end of 2005 Maurice approached me to see if [BIL] would be interested in hosting a stop on a tour of his artwork, Dreamspace 5. Although I had done some casual work for him in the 1980s, this was the first time he had come to me (or indeed [BIL]) with such a proposal."
- That was the position reflected in his interviews with the police following the tragedy.
- In a witness statement some weeks earlier, on 18 January 2011, in response to a request on behalf of the Council for additional documentation, he dealt in some detail with whether documents evidencing earlier dealings between BIL and Maurice Agis existed. In a nutshell, he said clearly that he had been unable to find any documents that had not previously been disclosed relating to BIL's dealings with Maurice Agis.
- However, at some stage subsequently it emerged that there were documents (or at least one particular document) showing that BIL had helped Maurice Agis prepare an Arts Council application for a proposed exhibition of Dreamspace (presumably an earlier version than Dreamspace V) in Liverpool in July/August 2004. The expressed intention was that BIL would market and promote the exhibition. The document that emerged (which was apparently drawn to the attention of Giles Agis by his legal advisers) is very similar to the one used for the Arts Council application in 2006 and it certainly appears that the electronic version of the former application form was used as a basis for the 2006 application.
- Giles Agis says that he had overlooked this application. Nothing apparently came of it.
- I do find it impossible to believe that, in the calm and measured period of preparation for this civil trial, Giles Agis had genuinely forgotten the proposal for a joint venture between BIL and Maurice Agis some two years before the events of 2006.
- Lord Faulks cross-examined Giles Agis on the basis that he had throughout the proceedings tried to distance BIL from the actions of his late father. Mr Grime made the perfectly fair point that if there was distance, it was a distance that Giles Agis was entitled to emphasise. However, this particular aspect of the evidence, taken with the way he dealt with the issue of the document I referred to in paragraph 79 above, leads me to infer that he has been trying to distance BIL further from Maurice Agis than the true facts permit.
- Whilst this would not, in my view, prove that BIL was an "occupier" of the structure at Chester-Le-Street, or that it was negligent in what it did, it adds some credence to the proposition that BIL was playing a more active role in the venture than it has been prepared to admit subsequently.
Apportionment
- I have already referred to the statutory test that I must apply in relation to this issue in paragraph 130 above.
- There has been additional guidance in relation to this issue that is conveniently summarised in Clerk & Lindsell, the relevant parts being as follows:
Apportionment of Damages
4-28
Section 2(1) of the Civil Liability (Contribution) Act 1978 provides that the amount of the contribution recoverable from any person "shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question". The court may order contribution amounting to a complete indemnity or exempt a person altogether from liability to make contribution .…
4-29
There was some initial controversy as to the proper basis of apportionment but in Downs v Chappell Hobhouse L.J. made clear that: "[i]t is just and equitable to take into account both the seriousness of the respective parties' faults and their causative relevance. A more serious fault having less causative impact on the plaintiff's damage may represent an equivalent responsibility to a less serious fault which had a greater causative impact." The apportionment of damages is substantially a matter for the discretion of the trial judge and an appellate court will revise his award only in very exceptional circumstances. On the other hand, the trial judge must apportion the damages between the parties who are actually before the court and cannot have regard to the possible negligence of some other person, not a party to the proceedings, whose fault may have contributed to the claimant's damage. Nor may the trial judge take into account the fact that one of the parties held, or had the potential to hold, liability insurance to cover the loss in question when deciding what is a just and equitable apportionment of the damages …."
- I have indicated (in paragraph 15) the Council's submission about this issue. Indeed it is argued that the evidence as it emerged would, if anything, suggest a greater degree of blame on the part of BIL than the 2/3 - 1/3 split suggested in the Opening Skeleton.
- Reliance is placed for that purpose on a number of submissions. It is submitted that BIL's involvement and blameworthiness was much greater than that of the Council. It is argued that BIL, as an experienced events organiser -
a. constructed Dreamspace V in the first place, knowing it was intended for use by members of the public, without investigating whether or not the structure it was putting together was safe;
b. gained knowledge of the structure in Liverpool including the fact that it lifted off the ground on at least one occasion necessitating its evacuation putting it on notice that the anchorage was not adequate, must (or should have) appreciated the amateurish approach of Maurice Agis to risk assessment, knowledge that was not passed on to the Council and yet erected the unsafe structure in Chester-le-Street.
- It is also said in this connection that it failed to close and evacuate the structure on the day of the tragedy despite the fact it had lifted up on two occasions.
- Because the position of BIL before me was that it had no liability in relation to the Claimants' claims, it made no, or no significant, submissions about the issue of apportionment. Notwithstanding that I must endeavour to give effect to the approach required by the Act and by the authorities summarised in the passage from Clerk & Lindsell set out in paragraph 168 above.
- Lord Faulks and Mr Warnock submit that the fact that the Council has accepted liability from an early stage does not mean that I should begin the process of apportionment on the basis that it is more to blame than BIL which has always denied any liability. I agree with that submission. The other side of the same coin, however, is that the mere fact that there has been a (correct) admission of liability at an early stage by the Council and, on my finding, an (incorrect) denial of liability by BIL does not mean that some "weighting" to the apportionment should follow from this state of affairs.
- Before I address what seems to me to be the essential issue on the question of apportionment, I should deal briefly with the matter referred to in paragraph 171 above. The Council seeks to make the failure to close and evacuate the structure on the day of the accident after the occasions when it lifted off the ground as something of significance in this context. If Maurice Agis had truly been acting on behalf of BIL that day, then there might be something in that argument. However, for the reasons I have already given, I do not think that he can truly be said to have been acting in that capacity. Furthermore, it would be impossible to blame any of the three BIL employees for not insisting on the evacuation of the structure since it was Maurice Agis who they were entitled to believe was responsible for making the decision not to act in this way. At all events, I do not consider that this matter goes to the heart of the issue I have to consider. The issue is more fundamental than that.
- Where each of the two parties before the court was significantly at fault was in not recognising the inadequacy of Maurice Agis' "risk assessment" and taking steps to ensure that the anchorage of Dreamspace V was secure for all reasonably foreseeable conditions. Each has effectively admitted that breach of duty, although BIL has admitted it solely in relation to its employees. For the reasons I have given, that admission is, in my view, too narrow. Nonetheless, that is where each of these two parties has gone wrong. So far as the Council was concerned, it was the "systems failure" that I identified in paragraph 68 that resulted in the issue not being addressed. For a public body this was a serious fault with a significant causative potency. So far as BIL was concerned, it too failed to address the same issue. As a party playing an active role in ensuring that the exhibition took place, it was also a serious fault with an equivalent causative potency. To the extent that a party's individual characteristics are relevant (and, in my view, they are of very limited significance), BIL was a non-profit making charity and a small organisation. That, perhaps, mitigates its position somewhat, but nonetheless any party that promotes a venture such as the Dreamspace venture that invites members of the public into a structure must take relevant steps to ensure that the public are safe.
- Since each was responsible in the same way for the same damage, it seems to me that, if causative potency was the sole factor in deciding apportionment between them then, stopping at this point, there would be nothing to choose between them and an equal apportionment would be appropriate. It is, however, established that, whilst important, this is not the sole consideration and I must consider whether any other factors operate in this case to alter what seems to me to be the appropriate starting point.
- It is established that acts and omissions which are not causative of loss may be taken into account for the purpose of assessing what (if any) contribution should be ordered. In Resource America International Ltd v Platt Site Services and Barkin Construction Ltd [2004] EWCA Civ 665 the Court of Appeal said this:
"Section 2 of the 1978 Act is not expressed exclusively in terms of causative responsibility for the damage in question, although obviously the court must have regard to this, as the section directs, and it is likely to be the most important factor in the assessment of relative responsibility which the court has to make. But in the result the court's assessment has to be just and equitable and this must enable the court to take account of other factors as well as those which are strictly causative. Such an assessment made by a trial judge will only be altered on appeal if it is clearly wrong."
- As was observed in Brian Warwicker Partnership v HOK International Ltd [2005] EWCA Civ 962 by another division of the Court of Appeal, the factors referred to in the Resource America International case occurred after the accident the subject matter of the action and, accordingly, could not have been causative of the accident, nor were they causative of any further consequential damage. Nonetheless, the decision was accepted as supporting the broad proposition referred to in the first sentence of paragraph 177 above. It was, however, said that "if the non-causative factor also involves a breach of duty relied on in the action the more likely it is to be a relevant factor for the purposes of s. 2(1)."
- Of the factors relied upon by Lord Faulks and Mr Warnock (see paragraph 170(a) above) I do not see the first is adding anything of significance to the position. There does not seem to me to be any material difference between the position of the Council (an "experienced" facilitator of events) and that of BIL (an "experienced events organiser") in this regard: each should have been alerted to the inadequacy of the "risk assessment" from an early stage.
- The second matter they rely upon (see paragraph 170(b)) is something that, in my judgment, requires closer analysis. There is no doubt that BIL acquired knowledge during the exhibition in Liverpool that the Dreamspace V structure was susceptible to instability when conditions were windy even if there had been no earlier knowledge of problems with earlier versions of structures of this nature. Whilst knowledge of the potential for instability is something that the Council should have gained at an early stage if it had looked into the "risk assessment" more carefully, the fact is that BIL had that direct knowledge at a time shortly before the structure was transferred to and erected at Chester-le-Street. Nothing was done to alert the Council to what had happened whilst it was in Liverpool and there is no evidence that BIL, through Giles Agis, said anything to Maurice Agis about the concerns that ought to have arisen as a result. It is, of course, speculative as to what would have happened if any concerns had been thus communicated, but it is difficult to believe that the Council (assisted by appropriate advice) would not, at the very least, have insisted on considerably more anchorage when the structure was erected at Chester-le-Street than was provided for in the "risk assessment". In that scenario, of course, it is likely that the "risk assessment" would have been identified as one drawn up in relation to a previous version of Dreamspace and thus not directly applicable to Dreamspace V.
- In my view, this factor does change the balance of the apportionment against BIL to some degree. The question is whether it does so to the extent contended for on behalf the Council. The effect of accepting the argument put forward on behalf of the Council is that BIL would be held to have been in effect twice as responsible as the Council for what occurred. Whilst views might differ about the matter, in my view, that tips the balance too far. The Council's failing was, as I have already said, serious and had a significant causative potency. I consider that to say that BIL's failing was, in effect, twice as serious as that of the Council would be wrong.
- There is probably no "right" answer to the question I have to address but, doing the best I can to apply to the facts of this case the statutory test and the approach of the authoritative cases to which I referred, I consider that the appropriate apportionment of responsibility is 45% to the Council and 55% to BIL. Whilst, of course, the issue matters between those two parties and their insurers, it is of no direct consequence to those whose claims for compensation have been settled already or remain to be resolved. It is, of course, the case that had Maurice Agis been an effective party to the present proceedings, he would almost certainly have been found responsible to the largest extent of any of the three parties responsible for what happened.
- There will be a judgment in the proceedings between the Council and BIL to the effect of the conclusion expressed in the preceding paragraph.
Concluding remark
- I am grateful to all Counsel for their assistance and to Mr Kennedy QC for providing to me and to all parties an electronic version of the notes he took of the evidence. They provided a helpful cross-check on my own notes.
