B3/2005/0948
Neutral Citation Number: [2006] EWCA Civ 316
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(MR JUSTICE MACKAY)
Royal Courts of Justice 
Strand 
London, WC2 

Thursday, 23rd February 2006
B E F O R E:

LORD JUSTICE RIX

LORD JUSTICE CARNWATH

LORD JUSTICE JACOB
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MAGUIRE
CLAIMANT/RESPONDENT
- v –

(1) SEFTON METROPOLITAN BOROUGH COUNCIL
FIRST DEFENDANT/APPELLANT
(2) PRECOR PRODUCTS LIMITED
SECOND DEFENDANT 
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(DAR Transcript of 
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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MR Y RAHMAN (instructed by Messrs Weightmans, India Buildings, Water Street, Liverpool, L2 0GA) appeared on behalf of the Appellant
MR P GOODBODY (instructed by Messrs Bell & Co, 40 Crosby Road North, Liverpool,
L22 4QQ) appeared on behalf of the Respondent
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J U D G M E N T
1.	LORD JUSTICE RIX:  On 28 April 2000 Mr Paul Maguire, who is claimant in these proceedings and respondent in this appeal, suffered an accident on an exercise machine which he was using at a leisure centre operated by Sefton Metropolitan Council (“the council”), who are first defendant in these proceedings and the sole appellant.  The machine in question was manufactured in America by a company called Precor, whose English subsidiary, Precor Products Limited (“Precor”), are second defendants in these proceedings.  Precor were, I think, the sellers of the machine to the council and by a service agreement dated 22 March 2000, that is to say only just over one month before the accident in question, they undertook to maintain that and other machines at the leisure centre which they had similarly supplied.

2.	Mr Maguire suffered his injury as a result of falling from the machine when the pedals that he was operating failed all of a sudden to provide the resistance which was the point of the exercise and threw him backwards off the machine, but fortunately he did not suffer serious injury.  The parties were sensibly able to agree quantum so that, when the judge found liability against both defendants at trial, he was able simply to enter judgment for an agreed total amount of £2,545.  It is unfortunate that that relatively minor sum seems to have been wholly disproportionately exceeded by the costs which I understand to have been incurred in these proceedings.  That, however, is another question.

3.	Mr Maguire in due course sued the council and Precor.  Against the council he alleged causes of action both in contract and under the Occupiers’ Liability Act 1957.  Against Precor he alleged a straightforward cause of action in tort for breach of a duty of care in negligence.  The judge, HHJ Mackay, in his judgment dated 16 December 2004 found all three causes of action proved.  Since in this appeal we are only concerned with the appeal of the council, I can set out the judge’s reasoning in respect of the causes of action both in contract and under the 1957 Act by referring to a mere three paragraphs of the judgment as follows:

“18. It seems to me that the Claimant was on the premises for the purposes of using the machine including the machine which was the cause of his accident.  It seems to me, therefore, that although the First Defendants [the council] have alleged and asserted that Section 5 of the Occupiers’ Liability Act 1957 should mean that there is only a common duty of care, there was in my view an implied term in the contract that any machine that the Claimant was to use on the premises was safe to be used and, in my view, the First Defendants are in breach of that term”.

4.	The judge then turned to what he described as negligence or the common duty of care and continued as follows:

“20. … Their duty of care was to ensure that the machine which was used by a member of the public, and was capable of causing injury but not obviously dangerous, was subjected to regular inspection and regular maintenance and, if necessary, regular repair.  The First Defendants did none of these things.  A short time before the accident they brought in the Second Defendants [Precor] and they say that is enough.

“21. What I say is: well, they did that, but they ought to have done a lot more.  They ought to have ensured that there was a proper system of control, inspection, maintenance and repair of every machine, and in failing to do that, and in failing to be aware of the defect which plainly existed in that machine, they are in breach of their duty and therefore they are liable in tort to the Claimant as well as in contract”.

The judge then went on in the rest of his judgment to deal with the position of Precor in negligence.  He found them to have been negligent, and as I have said there is no appeal from that decision by Precor.  

5.	To explain the background of the submissions which we have heard today, I need to set out a little more of the facts.  The machine in question is a C764 Climber.  Precor’s brochure contains the following passages:

“Precor’s commitment to quality and innovation is evident in every component:  a drive system that needs no routine maintenance, because it features durable, quiet belts instead of noisy chains or weaker cables ... Even after extensive heavy use, the system won’t develop looseness or ‘slop’, but will continue to provide a stable controlled movement.”

The machine in question had been manufactured on 4 December 1996 and installed at the leisure centre on 5 February 1997.  It was thus a little over three years old at the time of the accident.  

6.	On 20 January 2000 Precor submitted in writing to Mr Porrino, the manager of the leisure centre, a quotation for what is described as a “full service agreement” for the centre’s Precor equipment.  The quotation referred to a number of models including the particular machine in question, quoted a cost of maintenance for an annual contract, machine by machine, and added: 

“Please note that a pre-contract inspection must be carried out by a Precor engineer and any necessary parts fitted before a full service agreement can be issued”.

Someone has written onto the quotation in manuscript, “includes two service visits per year”.  Pursuant to that quote, a pre-contract inspection was carried out by Precor at the centre on 12 March 2000.  It was done by Precor’s engineer, Mr Phil Fagan, who signed the inspection report in respect of each machine.  The report covered the machine in question which was one of three C764 machines at the centre – it was the machine whose serial number ended in the numerals 0004 – and noted that the inspection as a whole lasted from 11.45am to 1.10pm that day.  It noted the mileage of each of the three C764 machines.  The mileage of 0004 was higher than that of the other two machines, but there was no evidence that its mileage was unusually high, and the comment written on the form by Mr Fagan was, “no further action”.  

7.	So the machine in question passed the pre-contract inspection and in due course the service contract was entered into on 22 March 2000.  It was a one year contract.  The quotation described it as a full service agreement.  It was to last for a year.   It contained various standard terms and conditions attached to it.  In essence the contract’s clauses made reference to a basic service obligation which in essence (clause 2.2) was to consist of:

“2.2.1. routine maintenance on the Equipment at such intervals as the contractor may reasonably determine to be necessary in order to keep the Equipment in good working order.”

8.	The contract does not, I think, say in terms that there will be two or a minimum of two inspections per year, but there does seem to have been some pre-contractual conversation to the effect that that would be the position.  The basis of the contract was that if on inspection or if on call out, in the event of any defect emerging between inspections, there was found to be a defect or malfunction of the machine, then that would be attended to and repaired by Precor and would be done without further charge subject to various qualifications and exclusions described in the contract.  Thus if the equipment was damaged otherwise than by fair wear and tear or required a major spare part or replacement component, then Precor reserved the right to charge the customer for supply of the same; see clause 3.  Clause 4 itemised services not included.  None are relevant to the case before us.  Clause 5 listed a number of customer’s obligations which included at clause 5.1.4 a prohibition on the customer allowing “any person other than the Contractor’s representatives to adjust, maintain, repair, replace or remove any part of the Equipment”.

9.	There was no further inspection or relevant activity under the service agreement prior to 28 April 2000 when the accident occurred.  After his misfortune, Mr Maguire was asked to complete an incident or injury form.  He described the incident in the following terms:

“I started to exercise on the stepper.  After about 40 seconds the stepper just gave way on me sending me straight to the floor.  I felt a jolt to my back and right knee”.

The malfunction of the machine was immediately reported for repair to Precor and a Precor engineer – in fact Mr Fagan himself, who had carried out the pre-contract inspection – promptly attended and made out a repair report, misdated 26 April 2000, in fact referring to the incident on 28 April 2000.  His report referred to the machine in question under the box heading “Malfunction”.  He wrote, “No resistance” and under the final box headed “Comments/ Resolution” he wrote: “Drive belt worn.  No stock on van”.  On 2 May 2000 another Precor engineer came to the leisure centre to replace the drive belt and a repair report exists to that effect.  

10.	There was a dispute at trial as to whether the machine was in fact defective and, if defective, what was wrong with it, and a defence to the effect that Mr Maguire had misused the machine and had been the cause of his own misfortune.  That case failed.  In the course of considering it, the judge had to give his opinion on the conflicting evidence of two expert witnesses whom he had heard on behalf of the claimant and the defendants respectively.  He preferred the expert evidence given on behalf of Mr Maguire by a Mr Stagg-Blackman.  In his report, Mr Stagg-Blackman had said that the fact that figures for the machine’s mileage were given on the pre-contract inspection report indicated that the machine had been opened up at that inspection.  He therefore criticised that inspection for having failed to note the worn belt.  At trial, however, with the assistance of the witness evidence given there, it became common ground that Mr Fagan would not have and had not opened up any of the machines at the time of his pre-contract inspection.  In the end, as appears from citations that I have set out above from paragraphs 20 and 21 of the judgment below, the council’s failure to put into effect a system of inspection which had involved the opening up of the machines and thus the ability to ensure that the council became aware of a defect which the judge found to have been there in the worn belt, was held against the council as amounting to a breach of their statutory common duty of care.

11.	The question on this appeal is whether the judge was right to find the council liable either in contract or for breach of statutory duty.  Before dealing with the submissions of Mr Yaqub Rahman on behalf of the council in respect of those two points, it is necessary to set out the terms of the 1957 Act.  The Act is described in its long title as “An act to amend the law of England and Wales as to the liability of occupiers …” and the fact that this is an Act of law reform and not merely of consolidation or codification of existing law is immediately the subject matter of its section 1 which begins as follows:

“1. Preliminary.
“1. The rules enacted by the two next following sections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them”.

12.	Section 1.3 makes it clear that the Act is to apply in relation to an occupier of premises so as also to regulate:

“(3)(a) the obligations of a person, occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft”.

13.	Section 2 sets out the extent of the occupier’s ordinary duty described as the “common duty of care” in the following terms:

“(1) An occupier of premises owes the same duty, the ‘common duty of care’, to all his visitors, except insofar as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

“(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

[…]	

“(4) In determining whether the occupier of premises has discharged the common duty of care to a visitor regard is to be had to all the circumstances so that (for example) - … “(b) where damage is caused to a visitor by danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.”

Pausing there, I underline the fact that that scenario is given as one possible example of the circumstances in which the question on all the relevant circumstances might have to be decided.  

14.	Section 5 is headed “Implied Term in Contract” and provides as follows:

“1. Where persons enter or use, or bring or send goods to, any premises in exercise of a right conferred by contract with a person occupying or having control of the premises, the duty he owes to them in respect of dangers due to the state of the premises or to things done or omitted to be done on them, insofar as the duty depends on the terms being implied in the contract by reason of its conferring that right, shall be the common duty of care.

“2. The foregoing sub-section shall apply to fixed and moveable structures as it applies to premises.”

Implied Term

15.	Mr Maguire paid a fee of something like £20 a month for the use of the leisure centre.  He was therefore a visitor under contract and that was common ground.  The judge’s view was that, despite the provisions of section 5 which he expressly refers to in paragraph 18 of his judgment cited above, there should be a strict term amounting to a warranty that any machine used by visitors to the leisure centre “was safe to be used”.  In the light of the judge’s findings about the defective belt as the cause of the accident in question, it followed automatically that the council was in breach of that strict and absolute term. The judge gave no reason explaining why it was that the term that he implied into Mr Maguire’s contract was not in the terms of section 5 of the Act, namely essentially in terms of the common duty of care.

16.	On behalf of the council, Mr Rahman submits that the judge not only gave no reason but could have had no reason for departing from the terms of the Act.  On behalf of Mr Maguire, Mr Peter Goodbody – who is primarily instructed by Precor but who by arrangement with Mr Maguire represents him for the purposes of this appeal – submits nevertheless that this case falls outside the terms of the Act as a whole.  He cites no authority for that proposition and indeed it would seem that authority on the workings of section 5 barely exists.  But he submits that the nature of the activity undertaken at the leisure centre was such that the necessary term to be implied was one that went beyond the common duty of care provided by the Act.  He sought to explain that submission by reference to the fact that an out of repair or defective machine was a source of danger.  He accepted, as the judge found, that the machine was not obviously dangerous.  He accepted that it was not an inherently dangerous machine, but because it was nevertheless something that could cause harm if defective he submitted that a special implied term was justified.

17.	In my judgment, however, this submission provides no reason for taking this situation outside the common case referred to in section 5.1, which expressly refers to “dangers due to the state of the premises or to things done or omitted to be done on them” in circumstances where under section 5.2 “the premises” includes “fixed and moveable structures” for the purposes of the Act.  

18.	Mr Goodbody considered over the short adjournment whether he could bring his submission within the concept of an activity duty such as might fall within the doctrine of Honeywill & Stein Limited v Larkin Brothers (London’s Commercial Photographers) Limited [1934] 1 KB 191 or Fairchild v Glenhaven Funeral Services Limited [2001] EWCA Civ 1881, [2002] 1 WLR 1052, see at paragraphs 113 to 131: see also what was said by Brooke LJ about those authorities in Bottomley v Todmordon Cricket Club [2003] EWCA Civ 1575 (unreported, 7 November 2003) at paragraph 31.  As it was, Mr Goodbody did not rely on this distinction.  Therefore, we were not concerned in this case with any submission to the effect that by reason of the council’s activity duties as distinct from its duties as occupier a term can be implied into the relevant contract which would fall outside the limitation of section 5 of the 1957 Act.  

19.	The only authority which anyone has been able to find on section 5 since the Act’s enactment is Sole v WJ Hallt Limited [1973] QB 574 where at 578H Swanwick J briefly observed:

“As I understand the purpose of this section, it is designed to reduce what was at common law the higher duty of an occupier owed to such persons entering by right of contract and to equate them in this respect with other visitors.”

That is consistent with my view of the function and effect of section 5.

20.	We have had the advantage of being able to consider for these purposes the Law Reform Committee’s Third Report Cmnd 9305 published in November 1954, which was the precurser to the 1957 Act.  The question of contractual licensees and those entering premises under contract can be found considered in that report in paragraphs 4/5, 39, 44, 48/49, 52 to 55 and 95.  At the risk of oversimplifying the matter, I would briefly seek to explain that under the common law prior to the Act distinctions had been made between the duties owed by occupiers to mere invitees and on the other hand to those entering by reason of contract.  In the case of the latter various authorities had implied into the relevant contracts terms which had, either by reason of slightly different situations or by reason of simply a growing and developing analysis of what the content of the implied duty should be, differed from one another as to the strictness or otherwise of the duty imposed.  

21.	Thus in a leading early case Francis v Cockrell [1870] LR 5 QB 501, where the claimant was someone who had paid to enter a public exhibition and had bought a ticket for a seat on a structure which had been put up for the purposes of the exhibition, the term that was implied was that the structure should be reasonably fit for the purpose (at 508, 511, 512/513).  That was the view of the majority of the judges (Kelly CB, Martin B, Keating J).  Montague Smith J (at 513) and Cleasby J (at 514) put the implied warranty in terms of an obligation to take care that the stand should be reasonably fit for the purpose.  That was perhaps subject only to a qualification in respect of latent defects which could not be discovered by the exercise of due diligence (at 508).  Later, however, in MacLenan v Segar [1917] 2 KB 325, which concerned the responsibility of an innkeeper for the personal safety of his guests, the stricter term imposed by Francis v Cockrell was glossed by McCardie J in these terms at 332/3:

“So too as to premises generally, the rule I think is the same, and upon the decisions as they stand may be stated as follows: namely, where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of anyone can make them”.

22.	Although it may be that McCardie J considered that he was there implying the same term as the Exchequer Chamber had imposed in Francis v Cockrell, it seems to me that by the introduction of the concept of reasonable care and skill the implied term had begun to shift its content.  One can see that this shift has continued in its trend in the still later case of Gillmore v London County Council [1938] 4 All ER 331, where Du Parcq LJ, sitting as a trial judge, considered the case of a claimant who had paid a fee to join a physical training class held in Porchester Hall.  The floor where the class took place was so highly polished as to constitute a danger and indeed the cause of the claimant’s slipping, falling and being injured.  Du Parcq LJ, having considered MacLenan v Segar which had itself considered earlier authority, expressed the implied term in the following way at 333G:

“I think that the proper way to put it is this.  If any person or body of persons invite a man for reward to take part in physical training, and invite him to come for that purpose to premises which they have hired, or of which for the time being they are in possession, then in those circumstances that person or body of persons impliedly warrant that they have take reasonable care to see that the premises are in all respects reasonably safe for the purpose”.

It seems to me that that formulation may well be still looser and lighter than the gloss of Francis v Cockrell contained in MacLenan v Segar.  

23.	With that brief look back at a sample of earlier authority, I return to the report of the Law Reform Committee, which in essence makes it clear that it did not favour a distinction in the content of the duty to be owed by an occupier to a visitor dependent upon whether that visitor came onto the premises pursuant to contract or not.  It indicated that in place of the difficulties and distinctions of the common law a single common duty of care should be imposed whether in contract or outside contract, but of course subject to contrary agreement, in the form recommended which was ultimately enacted in the terms of sections 2 and 5 of the Act.  It is interesting to note in passing in this connection that Mr Kenneth Diplock QC, as he then was, entered a minority report in which he expressed himself regretfully unable to agree that this branch of the common law formed suitable matter for a statutory code.  Fortunately history has demonstrated that the 1957 Act has presented little difficulty to future generations, even to the extent in the present context of having given rise to no jurisprudence on section 5 itself.  

24.	In any event, it is clear to my mind that section 5 of the Act was meant to do away with all such previous distinctions.  The content of a contractually implied term, in the absence of contrary agreement, was to be exactly the same as the duty for which section 2 provided.  The effect of that is to make it clear that the implied term, whose content is expressed as the common duty of care, is to take effect so that the warranty given by an occupier is not a warranty that his independent contractor, if he uses one consistently with the common duty of care provided for in section 2, will himself take care.  In this respect therefore, the content of the common duty of care in contract pursuant to section 5 of the Act differs from the position in contract generally, where a contractor is bound by his warranty according to its terms however he seeks to perform his contract, and whether he performs it by himself, by his servant or agent, or by an independent contractor.  It therefore seems to me that the judge was in error in seeking to draw a distinction between this case and the ordinary case covered by section 5 of the Act and on this ground the appeal must be allowed. 

Common duty of care

25.	I turn therefore to the question of the council’s common duty of care.  The essential facts of the matter are as I have set out above, that a mere six weeks or so before the incident in question the machine in question, together with the other machines at the leisure centre, was inspected by Precor.  Precor, it is common ground, was a competent independent contractor for the purposes of inspecting and maintaining the equipment.  Indeed, one could go further and say that there could be no more suitable independent contractor for these purposes than a company which was in effect the manufacturer and supplier of this equipment.  It is clear on the evidence that was before the judge that generally speaking this equipment was regarded as robust and maintenance light.  There was in fact no evidence before the judge that any C764 machine had ever failed before by reason of a defect to its belt.  Precor’s witness, Mr Taylor, gave evidence that machines were in use for as much as 11 years without a belt breaking or needing replacement.  If a belt was worn loose, the machine was designed automatically to take up the slack.  

26.	It is true that at the pre-contract inspection there was no opening up of the machines to inspect the works inside.  Since the judge found that that was a deficient inspection and held Precor liable on that basis, I will assume, and indeed may be bound to accept, that that is the position.  The question, however, is whether the deficiency of that inspection renders the council as well as Precor liable.  The judge considered that it did.   The judge obviously considered that the council had not discharged its common duty of care without providing for a system of regular inspection and maintenance which included the opening up of the machines.  Whether or not the council can be criticised for failing to inspect or maintain the machine in the period before the pre-contract inspection on 12 March 2000 however is, it seems to me, beside the question.  There was an inspection on that date.  I assume that that inspection ought to have involved the opening up of the machine and that the defective belt would have been observed if that had been done.  At any rate, it ought to have been observed.  

27.	Nevertheless, it seems to me that there is no reason – and the judge has given, it seems to me, no reason – for his conclusion that the council fall to be criticised for that deficiency.  It seems to me that the council were entitled to rely upon Precor as the experts to perform a proper inspection at the time of that pre-contract inspection.  After all, at least one purpose of that inspection which Precor required as a condition of entering into a maintenance contract was to ensure that the machines were in good order before Precor undertook any maintenance obligation in respect of them, so that if they required any maintenance at that time they would receive it not at the cost and expense and time of Precor but at the cost and expense of the council.  That was one of the purposes of the pre-contract inspection as indicated by the quotation which had referred expressly to the possibility that, “any necessary parts [are] fitted before a full service agreement can be issued”.  

28.	Mr Goodbody submits nevertheless that the judge’s finding, that the council’s reliance on Precor was inadequate and unreasonable for the purposes of the section 2 test, should be left undisturbed.  He also submits that because Precor were conducting the pre-contract inspection for their own interests, therefore they were not accepting any responsibility to users of the leisure centre or the machines in the way they would do once they had accepted a contractual obligation to maintain the machines; and that for similar or analogous reasons the council could not reasonably be said to be able to rely for the purposes of discharging their common duty of care upon that inspection.  It seems to me that that is an altogether too refined argument, and wrong.  

29.	I am inclined to think that, however the judge may have put Precor’s liability to Mr Maguire in tort in his judgment, Precor were at risk simply by reason of their pre-contract inspection of being liable to any subsequent user of the machine who was injured by reason of a negligent and deficient inspection at that time.  After all, it was clearly the contemplation of Precor that there would be no further inspection of the machine until something like, in the ordinary course of things, halfway through the maintenance year which was shortly about to begin.  In those circumstances it seems to me to be impossible to agree with Mr Goodbody in his submission that, because Precor were conducting the pre-contract inspection in part or even in whole for their own purposes, therefore so far as any claimant in Mr Maguire’s position is concerned they could be, as Mr Goodbody put it, as incompetent and negligent as they may.

30.	To look at the matter from the council’s point of view, on the other hand, they were entitled to consider that they were employing the best of all experts in relation to the Precor machines and were taking proper steps by reason of entering into the maintenance contract, and with the added confidence of the pre-contract inspection that they were performing any duty which they owed to the users of their leisure centre under the Act.  There is nothing in the evidence at all to suggest that the council had any reason to contemplate that the pre-contract inspection – or indeed any inspection to be carried out by Precor –would be a limited, partial or unsatisfactory or deficient one, or in particular one which did not involve, if it was proper to do so, the opening up of the machines.  There is nothing about what is known or might have been known by the council about these machines to suggest that they were sensitive or likely to go wrong, or that the council had to take any special measures in controlling or supervising Precor’s own inspection or in telling them how to do their own business, so as to acquit themselves of their common duty of care.  It seems to me that there is nothing in the evidence to support the judge’s findings and that the judge has provided no separate reasoning to explain his conclusion that the council are to be criticised for failing to inspect or maintain the machine, or for failing to be aware of a defect which existed, in the circumstances which took place in this case.  

31.	Therefore I would on this ground too, of statutory duty, allow the appeal.  It follows that the council must be acquitted both in contract and under the 1957 Act of any liability to Mr Maguire.

32.	LORD JUSTICE CARNWATH:  I agree.  As a former chairman of the Law Commission I cannot resist a brief comment on the Committee Report which led to the 1957 Act.  The Committee’s terms of reference required it to consider what “improvement elucidation or simplification” was needed in the law relating to liability of occupiers.  As my Lord has explained, the law in this area had become overcomplicated by subtle distinctions derived from the case law over several decades.  The proposals made by the Committee were not pure codification in the strict sense.  They were what I would call codification-plus; that is, sorting out the law by a combination of re-statement and amendment as necessary.  Within the Committee there was a debate about whether this was an appropriate exercise.  As my Lord has said, Mr Kenneth Diplock QC, as he then was, resisted the proposed changes to the law on grounds which have an uneasy familiarity in the context of subsequent attempts by the Commission to persuade Parliament of the merits of such exercises.  He thought that it would have unintended and unpredictable consequences in particular cases which differ from those the draftsman had in mind.  He said:

“To attempt to codify the law can thus I think only have the result of causing for a considerable period of years, until the new case law has been settled, uncertainty over a wide field of legal rights and obligations which affect every member of the public in his daily life.”

33.	The majority of the very distinguished Committee took a different view.  They said:

“We recognise the force of the argument that if the existing system, however irrational it may be in theory, works well in practice it had better be left alone and we do not underrate the difficulties attending any attempt to codify this branch of the law.  Nevertheless, we recommend that the attempt should be made.”  (Paragraph 78)

As my Lord has said, I think history has justified their view.  The Act has given rise to relatively little contentious case law, and, when problems have arisen, it has provided a clear and reliable framework for resolving them.

34.	In any event, the purpose of such codification would be wholly frustrated if it were open to a judge to decide to apply a different standard to meet his views on the merits of a particular case.  Accordingly, for the reasons my Lord has given, I agree that this appeal should be allowed with the consequence that he has stated.

35.	LORD JUSTICE JACOB:  I also agree and I would only add this: that persons in the position of Mr Maguire, faced with two possible defendants, should, perhaps before action is ever started, consider whether his action runs against both or one or the other.  He may not know.  So it may be that the sensible thing to do before starting the action, against particularly an occupier who has a machine on his premises, would be to make enquiries of the occupier as to what steps if any he has taken to ensure that the machine is safe.  If no steps have been taken, then the action may well lie against the occupier as well as the manufacturer or maintainer of the machine.  But if he finds otherwise, then it would be sensible not to join in the actual owner of the machine on whose premises the accident happened.

Order: Appeal allowed.