Occupier’s Liability PDF

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Occupier's Liability notes

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Tutorial 5: Occupiers’ Liability Description: This tutorial addresses the liability of an occupier for harm suffered by visitors and trespassers on the premises, with regard to the interplay between statutory and common law rules. Make sure you bring to or have on-screen access to the two Occupiers’ Liability Acts in the tutorial. Reading Paula Giliker, Tort (6th edn, 2017) Ch 8 Occupiers’ Liability Acts 1957 and 1984 Wheat v Lacon [1966] AC 552 Ferguson v Welsh [1987] 1 WLR 1553 Phipps v Rochester Corporation [1955] 1 QB 450 Gwilliam v West Hertfordshire Hospital NHS Trust [2002] EWCA Civ 1041 Tomlinson v Congleton Borough Council [2004] 1 AC 46 SH Bailey, “Occupiers’ Liability: the Enactment of ‘Common Law’ Principles”, ch 9 of Tort Law and the Legislature, ed by TT Arvind and Jenny Steele (Hart 2014)

Old Law 

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Used to be 4 categories of visitors, requiring different levels of care o Contractual – highest standard to make as safe as possible - hotels o Invitees – those who were there for a ‘common interest’ – shop customers – duty to exercise reasonable care to ‘prevent damage from unusual danger’ o Licensees – not visiting for a ‘common interest’– friends coming for dinner – duty to warn of a concealed danger that a reasonable licensee would not be aware of. o Trespassers – there at their own risk – occupier shouldn’t take action to deliberately cause harm (shooting at them) or done with reckless disregard (setting a man trap) Differentiated from harm from the state of the premises (occupancy duty) and harm from things done on the premises (activity duty) where claims had to be made in negligence. Several troublesome decisions o Fairman: an injury from a danger on a staircase – no breach of landlord duty whether invitee or licensee, bc reasonable entrant would see it. o London Graving Dock: no duty to an invitee when they have full knowledge of an unusual danger. 1954 Law Reform Committee report = common standard for all lawful visitors – law had become too favourable for the occupier, need to correct this. Main recommendations: o one duty of care unless contract set a higher one. o No change to the law of trespassers o Tenant’s family and lawful visitors should be able to sue the LL as if they were a tenant. Minority report at the time suggested no codification and to leave the common law flexible.

Occupiers Liability Act 1957 

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Background o Standard duty of care to visitor, liability for omissions, (important bc of reluctance to do this in negligence), some restrictive rules removed. Scope of the act o 2(1): occupier owes same duty – the common duty of care – to all visitors – to take reasonable steps to ensure the visitor is reasonably safe in using the premises for the reasons he has been invited o Act covers damage to property – even where property doesn’t belong to that visitor (1(3)(b)) o Liability can be reduced by signs and warnings o Defo occupancy duty and activity duty where is a continuing act – eg. premises used for horse riding.

 ‘Occupier’? o

1(2): one who would at common law be treated as an occupier.

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Occupier = person with sufficient degree of control over the state of the premises Wheat v Lacon  Someone injured when staying in pub, is pub licensee liable or the brewery who control the pub and gave permission for staying guests to be in upstairs accommodation.  HOL: publicans and the brewery both occupiers but neither below their respective standard of care  Ratio  Can be more than one occupier  Occupier who licenses premises but retains right to enter remains an occupier. Harris v Birkenhead Corp  LA evicting a tenant – tenant doesn’t leave when asked but later – LA doesn’t repossess the house anyways and leaves it uninhabited – eventually 4 yo goes in and is injured.  CA: LA became occupier when house became vacant – immediate right to take possession is a factor when finding an occupier Independent contractors – can become occupiers depending on nature / scale of the work – large building site = yes, painter decorator = no.

 ‘Premises’? o o

1(3)(a): any fixed or movable structure Includes vehicles, aircraft, ladders, lifts, diving boards.

 ‘Visitor’? o

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1(2): visitor is someone that would have been an invitee or licensee – occupier can set own standard with contractual entrant but if not then they are a visitor too.  TEST: Has the occupier given the entrant permission to be on the premises? 2(6): people who have right to premises conferred by law eg. police officer with a warrant = visitor under deemed permission Implied permission – courts been known to stretch this to avoid injustice.  Robson v Hallett: person entering premises to communicate = visitor unless they know or ought to know that this is expressly forbidden.  Lowery v Walker [1911]: farmer allowed people to walk across field for 35 yrs, puts savage horse there to deter, man attacked, allowing the trespass for 35 yrs = implied consent  Edwards v Railway Exec [1952] – habitual trespass not always implied permission though  Phipps v Rochester Corporation [1955] – child roaming on wasteland at night, injured in trench, such small child should not be left alone at night, common sense  Glasgow Corp v Taylor: LA not fence off poisonous bush near playground, yes boy should not have been there but as child was an implied licensee. Limitations  Permission might be restricted by area/time of the visitor being there.  Robson v Hallett: where permission expressly revoked, reasonable time after where A leaving, still a visitor.  Gould v McAuliffe: pub visitor looking for loo – strayed into private area and attacked by dog – occupier must take reasonable steps to inform the visitor that the area is out of bounds as long as it is an area where one could reasonably expect a visitor to go.  2(2): only occupier can give permission for the premises to be used for that purpose.  The Calgarth: where person invited for a purpose and pursues another – they may cease to be a visitor – invite someone to use staircase not to slide down the banister – SCRUTTON.  Geary v JD Wetherspoon: slid down stairs banister, fell + v injured, HC said took dangerous risk, spoons not liable for obvious / inherent risk

Sec 2: common duty of care o 2(2): DoC to take such care 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 they are invited or permitted by the occupier to be there.  Note: the visitor, not the premises that must be safe = sometimes take special care, eg. for the blind.  Consider all normal conditions on the standard of care, risk magnitude, burden of precautions, utility of conduct, etc.  Poppleton v Trustees of the Portsmouth Youth Activities Committee [2008] – friends fell at a climbing centre, can’t predict that this jumping would

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occur, decision that breach must be decided sensibly, stopping climbers going above a level where they might get hurt defeats the point of the climbing wall. 2(3)(a): children will be less careful than adults  Glasgow Corp v Taylor: child eating the poisonous berry – occupier must realise that some things are particularly alluring to children.  Jolley v Sutton LBC: children injured trying to obtain an abandoned boat – HOL: courts shouldn’t call behaviour remote bc children have tendency to find ways of causing mischief – leniency  Phipps v Rochester Corp: expectation that v young children will be accompanied by a responsible adult – policy that parents can’t shift their burden onto occupier.  Simkiss v Rhondda BC: occupier might be expected to factor local social habits – do local young children often go on their land? 2(3)(b): professionals: person in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.  Eden v West & Co: carpenter not warned of v rare weak brickwork – not a normal risk of the job so O doesn’t escape liability  Roles v Nathan: 2 chimney sweeps overcome by fumes and died – DENNING: specialist should be able to appreciate the danger arising from a defect – PEARSON (obiter): boiler being lit not a usual risk, was special and unusual.  Ogwo v Taylor: fireman injured whilst fighting fire – no voluntary assumption of risk, just expected to take greater care, if take all reasonable care and still injured then the occupier can still be liable – case slightly distinguishable as this based on O creating a danger. 2(4)(a): warning not to be treated as absolving the occupier from liability unless in all the circumstances it was enough to enable the visitor to be reasonably safe.  Roles v Nathan: DENNING: two bridges example that only excludes liability where the warning enables the visitor to be reasonably safe – workers could have avoided danger by listening to warning and not working when boiler lit – other judge dissented, obiter, saying that the boiler being lit was a special and unusual risk.  Warning must be comprehensible – for a child may = more notice such as a barrier.  Tomlinson v Congleton: HOFFMANN: only need to warn of obvious risks where no genuine and informed choice.  English Heritage v Taylor: dangerous path: not obvious + no warning = liable. Need to consider whether an ordinary person would see the danger.  Staples v West Dorset DC [1995] – C fell off cob, C said council should warn of slippery algae, court said risk was obvious, council did not need to warn  Warning given by TP and other factors to prevent risk (barrier) will be considerations alongside the warning + consider signs that attempt to exclude liability.  Need to also consider the usual issues of breach of duty. 2(4)(b) – where independent contractor does faulty work, they are not liable for injury from this, where  1. Occupier reasonable in trusting the work to a contractor  generally, v few problems with this.  2. Occupier took steps to ensure he could trust the contractor to be competent  generally, all fine unless occupier knows of something that suggests otherwise, previous negligence, etc.  Bottomley v Todmorden Cricket Club: if work is particularly hazardous then occupier may have positive duty to check competence and insurance.  Gwilliam v West Hertfordshire Hospital NHS Trust [2003] – a splat wall, C injured on the wall, independent contractors set up wall but not insured so C went for the NHS Trust, NHS Trust had asked if they were insured but contractors had lied, asking was enough to escape liability.  3. Occupier took reasonable steps to ensure self that work was properly done  usually balances on nature of the work and who occupier is.  Woodward v Mayor of Hastings: child slipped on snow – school could have checked if it was cleared as don’t need expertise to see if the job been done properly

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Haseldine v Daw: O having a lift fitted, not something they can be expected to really judge as v technical. o Limits on this: if danger was still obvious to lay person + could have gotten independent experts. Ferguson v Welsh: no duty to ensure contractor protecting their own employees from harm but may have duty to stop work if they become aware of a danger to employees.

 Exclusion clauses o

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Displaying a notice on the premises  Separate to a warning.  Ashdown v Samuel Williams: if occupier took reasonable steps to bring the exclusion to the attention of persons on the premises, they can dictate their own entry rules – subject to rules in CRA etc. Contract term  Term affecting standard of care must be express otherwise statutory duty will be used.  1957 s.3: O and A have contract that lets B enter the premises  If OA contract sets lower standard of care – does not apply to B  If OA contract sets higher standard of care – B can receive the benefits of this. Where there is a sign saying owner has no liability for injuries, if person notices then they cannot sue. Consumer Rights Act 2015, Part 2  Protect people from exclusion clauses – where a consumer/trader contract.  65(1) – exclusion clauses do not extend to death / personal injury owing to negligence  65(4)(c): negligence includes breach of 1957 common duty of care.  CRA more about fairness – terms not valid that cause big imbalance between consumer and the trader. Unfair Contract Terms Act 1977 – where premises used for business purposes.  1(1)(c): act applies to businesses attempting to reduce their liability  1(3): business liability = liability for breach of obligations arising from business or from occupation of premises used for business purposes – so would not usually cover dwellings unless also being used for business  1984 s.2 = people on premises for educational/recreational purpose, not business liability  2(1): virtually identical to the s65(1) – businesses liability – can’t exclude liability for death or PI  2(2): for other loss suffered – doesn’t work with negligence unless reasonable – stricter than for consumers  14: business includes gov departments and local authorities work – includes charitable work? issue with these re. can reduce liability for visitors but not for trespassers what about for people who don’t fall into those categories that protect them from having no liability  ever possible to remove all liability or will the law step in?  a duty of ‘common humanity’?

What duty was owed to trespassers pre-1984 o o

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Only if choose to allow someone on your land then can you expect to have a duty to them Addie v Dumbreck [1929]  4 yr old wanders onto land, is injured and dies on dangerous equipment  fault lies with the parents for not keeping track of their child  HAILSHAM: trespassers acting at their own risk – no liability unless deliberate harm done or O acted with reckless disregard for trespassers.  Law seen by many as extremely harsh on the innocent trespassers, children or adults who are lost. British Railways Board v Herrington [1972]  Series of cases re. children walking over tracks as a shortcut, being injured – D knew they were doing this – railways felt they owed no duty and not intentionally running them down so not liable

Duty of common humanity to trespassers is the principle but HOL provide varying tests – not clear what to follow or what this is – more than nothing, less than the 1957 standard.  Duty arises when occupier becomes aware of physical facts that a reasonable person would appreciate to create a risk of serious injury to a trespasser, so that it would be inhumane to not take steps to mitigate the risk. Analysis  Were they trespassing for a bad motive or just trespassing because they had not thought this through  Law saw no difference between good and bad trespassers  Led to harsh judgements re. children but saw no way around this. 

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Occupier’s Liability Act 1984 

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1(3): owner of premises owes some duty to trespassers (less than duty to visitors) o (a) where you are aware of a danger or have reasonable grounds to believe that it exists – SUBJECTIVE o (b) owner knows / has reasonable grounds to believe that non-visitors are in vicinity of the danger or may come into this vicinity. o (c) the risk is one, in which all the circumstances of the case, he can be expected to offer some protection 1(4): the act only covers personal injury and death 1(5): duty owed can be discharged by giving warning to discourage people from the danger or taking other reasonable steps. o No 1957 style requirement for the warning to advise V how to be reasonably safe. 1(8): no liability in terms of loss or damage to property o if trespasser in PQ damages watch for example, nothing to be done o Tutton v Walter Reasonable grounds to believe o Swain v Natui Ram Puri  Authority for 1(3)(a) and (b)  9 yr old on factory roof after climbing over fence, falls off and is injured  was there a reasonable knowledge that the owner could have expected that someone might climb on the roof, evidence for this – court said unoccupied factory next to council estate would attract children.  NOT constructive knowledge in this section, pure evidence for that they should have known, protects the occupier  Ratio = need for primary facts that a reasonable O could use to conclude that there was a likelihood of trespassers. o Ratcliff v McConnell  Authority for 1(5)  Broke into pool at night, dived in the shallow end and injured  Warning was there regarding diving in the shallow end, occupier not liable  Court sometimes the risk is so obvious that no warning needed anyways  Financial resources of D are a factor when considering the precautions taken. o Higgs v WH Foster  Policeman injured when fell in ditch – whilst checking vehicles.  O not liable bc nothing to attract trespassers and not a common short-cut. Danger to trespasser v social gain. o Tomlinson v Congleton Borough Council [2004]  CBC had lake, worried about ppl being injured, warned public of danger and distributed pamphlets  D injured when diving into the lake – became tetraplegic.  CA: CBC knew of irresponsible swimmers and dangers posed by the lake.  HOL:  By time case gets here, bc so worried about being sued that taken measures to stop anyone enjoying the lake  HOFFMAN o Questioned the ‘state of the premises’ argument because the danger was a natural lake – is there a ‘state of p’ problem on a mountain bc no steps o Any premises could be seen as dangerous as someone will want to use it in a dangerous way – people should be responsible for the inherent risks in any activity they undertake.

People should take responsibility for their own actions where the danger posed is obvious – against 1(3)(c) – danger not one that needs precautions o Social cost of this – need to ensure public goods / authorities are protected. o Also about things done or omitted to be done: council had left the body of water as it was – did not satisfy this step. Where premises are safe + V injured. o Keown v Coventry Healthcare NHS Trust [2006]  Boy over 10 climbed up fire escape and hurts himself – knew what he was doing was bad  Not fair to make trust fence off fire escapes over all their land – policy issues  Not liable under the act where the premises are at the right standard but trespasser put themselves in danger through the way they use it. Act not just confined to liability for hidden danger and no liability for an obvious risk – there is a grey area between these two where need to judge how careful C was against the risk that D had let exist. Defences under the act o Volenti – 1(6)  Illegality is not a defence, would undermine protection that was the purpose of the act.  Revill v Newbury [1996]  D liable for shooting trespassers who was there to burgle  Duty extends to people committing criminal acts o No mention of contributory negligence but this has been applied o Assumption of risk mentioned in 1957 and 1984 – Ratcliff Anomaly o Lawful visitor can have duty excluded by a notice but duty to a trespasser cannot be excluded. o

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Defective premises  special provisions o defective premises act 1972 s3(1) o s4(1) – duty on landlord for defects on the property that causes injury to visitors or might reasonably expected to

Cases CASE FACTS

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COURT WARD

TOMLINSON v CONGLETON Lake in the park – swimming in it v common, warnings saying it was dangerous to swim were ignored, council knew. Set up a scheme to stop swimming but burden of precautions = this was not in place by the time of the accident. When went swimming – was no longer there for a permitted purpose = became a trespasser. Need to consider the 1984 trespasser test – O knew of the danger and that C would come into contact with the risk, did he take reasonable steps to stop them coming into ...