Occupiers liability Essay PDF

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Tort Law Answer Occupiers liability...

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Occupier’s liability refers to the tort law that concerns the duty of care owed by those who occupy real property to people who visit or trespass. The Occupier’s Liability Act 1957 deals with lawful visitors who are owed a common duty of care, under section 2(2) of the act, which establishes that all occupiers have a duty of care to ensure that all legal visitors will be “reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there” 1.

Lord Denning described an occupier as “someone who has sufficient control over the premises to the extent that he ought to realise that lack of care on his part can cause damage to lawful visitors” in Wheat v E Lacon Co Ltd2. There can be multiple occupiers who have control, which extends from legal to physical control (Harris v Birkinhead Corporation3). In this case, the occupiers can be both Lady Barnes who owns the ancient ruin and Monuments plc, who are the site managers. In section 1(3)(a), a premise includes any fixed or moveable structure such as sheds, bridges, scaffolding and vehicles. Here, it is the ancient ruins and buildings that Fred and Perry are visiting.

Lawful visitors include those who are invitees, licensees, those entering pursuant to a contract or exercising a right conferred by law as seen under section 1(2), 5(1) and 2(6) of the Occupiers Liability Act 1957. This is further limited to those who enter for the time, purpose or area granted by the occupier. This shows that exceeding permission could make a lawful visitor a trespasser. As Scrutton L.J stated in The Calgarth4, “When you invite a person into your house to use a staircase, you do not invite them to slide down banisters”. When first entering the premises, Fred and Perry are both lawful visitors as they enter for the purpose of visiting the ancient ruins and if they stay there for the permitted time and in the permitted area, they would continue to be lawful visitors.

Under section 2(4)(a), “where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor 1 Occupier’s Liability Act 1957 2 Wheat v E Lacon & Co Ltd [1966] 1 All ER 582 3 Harris v Birkenhead [1976] 1 WLR 279 4 The Calgarth [1927] P 93

to be reasonably safe”. Lady Barnes, who owns the premises, carried out her duty by taking reasonable steps by providing a sign that covered the danger that could arise (White v Blackmore5) by stating that visitors should not lean on the walls and that they enter at their own risk. The warning sign was small but it was clearly visible to all those visiting, with the words “Visitors enter at their own risk”. This can exclude the liability from Lady Barnes. The risk arose from the claimants own action as Fred was a person of full capacity and must have seen this sign upon entering with his child yet despite this clear warning, he leaned on the walls. If the walls had collapsed suddenly without his act, he may possibly have a claim due the negligence caused to him. Due to these facts, he may not have a successful claim for his personal injury and damage to his watch.

The 1957 Act does not extend protection to trespassers or invitees who exceed their permission. The Occupiers Liability Act 1984 deals with trespassers and defines one as “those who enter without permission or invitation and whose presence is unknown to the occupier or if known is objected to”6. An objection from an occupier may be through a sign, locked gate or a verbal warning. If the area is safe, there is no duty to a trespasser. An occupier doesn’t owe a duty when the risk is created by the dangerous activities rather than state of premises. (Keown v Conventry NHS Trust7). This applies to Perry, who became a trespasser when he exceeded the permission given to him by entering a prohibited area despite the two-metre square board with a photo of red skull and crossbones, signalling danger.

Section 1(4) of the Occupiers Liability Act 1984 states that the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of danger concerned. This shows that the standard of care owed to trespassers is far less than that owed to visitors. However, the courts are more likely to treat children as ‘visitors’ even if they are trespassing. If the premises contain something which is an attraction to children, the children have implied permission to enter if occupier does nothing to prevent them from investigating (Jolley v Sutton London Borough Council8). Perry 5 White v Blackmore [1972] 2 QB 651 6 Occupiers Liability Act 1984 7 Keown v Coventry Healthcare NHS Trust [2006] 1 WLR 953 8 Jolley v Sutton [2000] 1 WLR 1082

may have been allured by the attraction on the premise which was the well. In Taylor v Glasgow Corporation9, things which seem attractive such as berries may be tempting, which could excuse children from becoming a trespasser.

However, the occupier is not expected to take unreasonable risks with his own safety to protect his visitors as in Hughes (a Minor) v. Newry and Mourne DC 10. Lady Barnes had prevented people from entering with the use of barbed wire, so she could not have foreseen that a child would try to crawl through it, as they would recognise the risk associated with it. As Perry is a 10 year old, section 2(3)a of the The Occupier’s Liability Act 1957 could apply in this case. It states that an occupier must be prepared for children to be less careful than adults because even if the precaution was suitable for adults it may not be for children, as in Moloney v Lambeth Council11. Although the railing protected adults, it was not enough to protect children, although it was foreseeable that children would be using the railings. The occupier should take reasonable steps to ensure that the area is safe for children as well as adults, if they both would be using the premises.

However, parents also have a duty to supervise their children as in the case of Phipps v Rochester Corp and Bourne Leisure Ltd. (t.a British Holidays) v Marsden12, however these cases were applied to small children aged two and five. Older children, like Perry, are able to wander off on their own and usually play without supervision from their parents. It can be argued that Fred should have kept an eye on his child, especially if the area was not particularly safe, shown by the warning at the entrance.

Section 1(3) shows the circumstances that can give rise to a duty of care to a trespasser. This is when an occupier is aware of a danger, has reasonable grounds to believe others may come into the vicinity and it is reasonably expected to offer others protection. If this criteria is not satisfied then no duty of care arises. Lady Barnes was aware of the danger but had taken reasonable steps to prevent it by placing warning signs and using barbed wire to seal off the area. Therefore, she may be able to discharge the duty. It is common sense that 9 Taylor v Glasgow Corporation [1922] 1 AC 448 10 Hughes a Minor v Newry & Mourne District Council [2012] NIQB 54 11 Maloney v Lambeth Borough Council [1966] 12 Phipps v Rochester Corp and Bourne Leisure Ltd. (t.a British Holidays) v Marsden [1955] 1 QB 450

people would not try to go through the barbed wire as it is used to deter people or animals from areas that may have a high risk of danger. She had taken into account the likelihood of some people trespassing or ignoring the warning sign by placing this wire around the well. As in the case of Platt v Liverpool City Council 13, although a house collapsed on children, the council were not found liable. This was because despite the council taking reasonable steps, they were unable to guard against the irresponsible minority.

There is a limit to area as although there is an implied permission to wander at will, visitors cannot enter unauthorised premises. In Pearson v Coleman Brothers 14, it was held that if it is unclear where the visitor may go, the benefit of doubt will go to the claimant. However, the prohibited area was clearly shown by the use of the barbed wire, which the claimant had crawled under.

Therefore, from the common law and statute’s principles it is unlikely that Perry and Fred would succeed in their claim. The occupier must show that they had taken the steps required to discharge any of the duty and it seems likely that Lady Barnes and Monuments plc would succeed.

Bibliography

13 George Platt (Administrator of The Estate of David Platt, A Deceased Minor) and Another v Liverpool City Council [1997] EWCA Civ J0501-1 14 Pearson v Coleman Bros [1948] 2 KB 359

George Platt (Administrator of The Estate of David Platt, A Deceased Minor) and Another v Liverpool City Council [1997] EWCA Civ J0501-1 Harris v Birkenhead [1976] 1 WLR 279 Hughes a Minor -v- Newry & Mourne District Council [2012] NIQB 54 Jolley v Sutton [2000] 1 WLR 1082 Keown v Coventry Healthcare NHS Trust [2006] 1 WLR 953 Maloney v Lambeth Borough Council [1966] Occupiers Liability Act 1957 Occupiers Liability Act 1984 Pearson v Coleman Bros [1948] 2 KB 359 Phipps v Rochester Corp and Bourne Leisure Ltd. (t.a British Holidays) v Marsden [1955] 1 QB 450 Taylor v Glasgow Corporation [1922] 1 AC 448 The Calgarth [1927] P 93 Wheat v E Lacon & Co Ltd [1966] 1 All ER 582 White v Blackmore [1972] 2 QB 651...