In Furmedge, Collings and Campbell v Chester-Le-Street District Council and Brouhaha International Limited, the court had to consider the apportionment of responsibility between the Chester-Le-Street District Council and a third party company, Brouhaha International Limited (B), after an inflatable PVC structure broke free from its anchorage and lifted into the air causing two fatalities and 27 injuries. The district council, who owned the park where the incident happened, accepted liability on the basis that it had failed to carry out a proper risk assessment. B had organised the event and had supplied staff to work at the artwork. The question to be determined was whether B was an "occupier" under the Occupiers' Liability Act 1957, and if so, what proportion of liability should be attributed to B.
The court held that B had become an "occupier" of the site. Through its employees, B played an active role in the construction of the artwork and had transported the structure to the site and erected it there. B had also been responsible for determining who entered the structure and how people behaved once they were inside, and therefore exercised some degree of physical control over the premises. The court found that B had failed to consider that any failure on its part to use care in relation to the artwork could cause injury to people using it and it ought to have carried out its own risk assessment. It was found that B also owed a duty of care in negligence. As the district council and B were responsible in the same way for the same damage, equal apportionment of liability may have been appropriate. However, as B had knowledge that the artwork was susceptible to instability in windy conditions, this tipped the balance, and the appropriate apportionment was deemed to be 45 per cent to the district council and 55 per cent to B.
Full details of the case can be found here.