Occupiers Liability lecture 2 PDF

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Occupiers liability. When can you be liable?...

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Occupiers Liability – Lecture 2 When is a duty owed in occupiers’ liability? OLA 1957: duty of care always owed to visitors in all circumstances under this act. For example, if you invite someone to enter the premises, or they have a licensed authority then you owe them a duty care. OLA 1984 s 1 (3): Three conditions non-visitors must meet: 1) occupier is aware of the danger or has reasonable grounds to believe it exists; 2) occupier knows or has reasonable grounds to believe that someone may come in the vicinity of the danger; 3) the occupier may reasonably be expected (in all the circumstances of the case) to offer some protection against the risk. 1) Reasonable Belief in Danger Rhind v Astbury Water Park - Example of a case where no duty of care was owed to a trespasser because the defendants did not have reasonable grounds to believe a danger existed (in this case a submerged fibreglass underwater container that was not visible from the surface). - Relating back to 1st element: Did the occupier know the danger existed, or had reasonable grounds to believe the danger exists? The issues Occupier’s liability – diving into shallow water The facts Claimant dived in Astbury Mere, trying to get a football which had been kicked into the Mere. Although the Claimant had not swam in the Mere on this occasion, he and his friends had previously and they were aware that swimming was not allowed. Judge found that all had read the notices saying “private property – strictly no swimming allowed” at some time. Claimant dived shallow dive, and hit fibreglass container. The Judge found that the evidence was that the public at large were invited to roam all over the country park and did so, including the land on the edge of the Mere itself. The Judge found that the Claimant was not a trespasser when he entered the water to retrieve a ball, although such permission did not extend to swimming or diving. The notice prohibited swimming and did not purport to prohibit activities that the Judge had observed on a video shown to him, namely adults and children playing about in and wallowing in the shallow water near the beach, which had open access from the country park. The decision- CLAIM DISMISSED. 1. The Defendants were licence or sub-licensee and had limited rights over the Mere, carrying out specific activities upon it. They were not general occupiers. Their activities had no relationship whatever, either to the Claimant or his entry into the water. 2. The risk of injury through diving was so obvious that these Defendants owed no duty to post specific warning of that risk or to exclude members of the public from the water’s edge, whether by fencing, landscaping or notice. 3. Neither Defendant could be reasonably required to scour the Mere’s bottom for obstructions or to have patrols attempting to stop people entering the water. 4. The Claimant knew swimming was prohibited in the Mere as was by implication, driving. The true cause of the Claimant’s accident was his foolhardy action in running into the water and doing a running dive.

2) Someone in Vicinity of Danger

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Requires actual knowledge at time of injury (Swain v Puri [1996] PIQR 442).

In Donoghue v Folkestone the defendant did NOT owe claimant duty of care in relation to injuries he suffered while diving in the defendant’s harbour because although the defendant knew people swam there in summer he had no reason to think they did in winter when the injury occurred. Held: Appeal allowed. The test of whether a duty of care exists under s.1(3) Occupiers Liability Act 1984 must be determined having regard to the circumstances prevailing at the time of the alleged breach resulted in injury to the claimant. At the time Mr Donoghue sustained his injury, Folkestone Properties had no reason to believe that he or anyone else would be swimming from the slipway. Consequently, the criteria set out in s.1(3)(b) was not satisfied and no duty of care arose.

3) Expectation of Protection from Danger Simmonds v Isle of Wight Council - It was held that a school did not have a duty to prevent children using the swings on sports days as this would likely mean sports day would cease to be held and would become uninsurable, it would be too onerous to try prevent every injury in sports day

Who is an Occupier under acts?

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OLA 1957 s 1 (2) - The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a person’s occupation or control of premises and of any invitation or permission he gives (or is to be treated as giving) to another to enter or use the premises.

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OLA 1984 s 1 (2) (a) - Duty of occupier to persons other than his visitors. Refers back to 1957 act saying: For the purposes of this section, the persons who are to be treated respectively as an occupier of any premises (which, for those purposes, include any fixed or movable structure) and as his visitors are — Any person who owes in relation to the premises the duty referred to in section 2 of the M1 Occupiers’ Liability Act 1957 (the common duty of care)

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Wheat v Lacon & Co. Ltd [1966] AC 552 (HL) – some degree of control required....