Occupiers Liability PDF

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Tort Law- Occupiers Liability...

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OCCUPIERS’ LIABILITY An occupier’s liability depends on where the claimant is injured and on the status of the claimant. For example, someone injured on adjoining premises might be able to sue in nuisance, Rylands v Fletcher (although the law is not clear on this point), trespass or ‘ordinary’ negligence. Two statutes govern liability to claimants injured on the occupier’s premises: The Occupiers’ Liability Act 1957 and The Occupiers’ Liability Act 1984. (Note also the Countryside and Rights of Way Act 2000 in relation to the socalled ‘right to roam’.)

OCCUPIERS’ LIABILITY ACT 1957 S2(1): ‘An occupier of premises owes …..the common duty of care to all his visitors’ S2(2):’The common duty of care is a duty to take such care as … 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.

1. The Duty to take care 

Defendant must be an OCCUPIER Wheat v Lacon [1966] 1 All ER 582 Denning – 4 categories of occupier 1. Landlord lets premises - parts with control - tenant is the occupier. 2. Landlord lets part & retains other parts – landlord is occupier of common parts. 3. Owner of land licenses a person to use the premises, but has a right to enter and repair - owner retains control and is the occupier. 4. Owner employs independent contractors to carry out work on the premises owner (usually) retains sufficient control to be occupier. AMF International Ltd v Magnet Bowling Ltd [1968] 1 WLR 1028: In some cases there may be multiple occupation, for example a landowner of a building site and the builders (independent contractors) working there. Independent contractors may be occupiers

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Collier v Anglian Water Authority [1983] Times, 26 March: Dual occupation may involve differing responsibilities as between the local authority and a water authority in respect of promenade. Harris v Birkenhead Corp [1976] 1 WLR 279: Physical possession is not a necessary requirement. Thus a local authority, not yet in actual or symbolic possession of a house subject to a compulsory purchase, was an occupier. Can be an occupier even without physical possession

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The incident must take place ON THE OCCUPIER’S PREMISES Premises are widely defined, see s1(3) OLA 57 “any fixed or moveable structure, including any vessel, vehicle or aircraft”. Jolley v Sutton (see below) – a derelict boat on D’s land Bunker v Brand [1969] 2 All ER 59 – tunnel boring machine on Victoria line Gwilliam v West Herts Hospital NHS Trust [2003] 3 WLR 1425 – splat wall

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The incident must be RELATED TO THE STATE OF THE PREMISES Consider the difference between activities on the premises and defects in the premises (activity duty vs occupancy duty). See: Revill v Newbery [1996] 1 All ER 291: Defendant shot plaintiff who was trying to break into his shed (OLA 1984 case). Ogwo v Taylor [1988] AC 431: A fireman was injured whilst trying to control a fire in the defendant’s loft Fairchild v Glenhaven Funeral Services [2002] 1 WLR 1052: Injury caused by contact with asbestos dust on D’s premises.

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The claimant must be a LAWFUL VISITOR (if not, see below) Contractual visitors, licensees, invitees and persons entering under right of law but not people using public or private rights of way. Lowery v Walker [1911] AC 10: C injured by a horse on D’s land that had been used a shortcut by the public for 35 years.

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Edwards v Railway Executive [1952] AC 737: C injured on the railway line having gained access through a broken fence. Harvey v Plymouth CC [2010] EWCA Civ 860: Injury on D’s land which was fenced off but known to be used for recreational purposes.

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Lawful visitors are owed a COMMON DUTY OF CARE S2(2) ‘to take such care as…..is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there.’ An occupier may impose limitations, i.e. a person may be allowed to enter one part of a building but trespasses if he/she enters another part. The Calgarth [1927] P 93: Scrutton L J ‘…if you invite someone to use the stairs you do not invite him to slide down the banister…’ Geary v JD Wetherspoon plc [2011] EWHC 1506 – what happens if they do? Stone v Taffe [1974] 1 WLR 1575 - Permission may be limited to a particular time or purpose.

(The tort of trespass to land will be considered in the next topic, and see Horsey & Rackley, pp 521-527.) 2. Breach of Duty What is reasonable? See previous notes on breach of duty – test is standard of reasonable occupier in the circumstances: Bowen v National Trust [2011] EWHC 1992 - Child killed by fallen tree on National Trust land Standard of reasonable occupier in the circumstances: See, for example, Latimer v AEC [1952] 2 QB 701, Kiapasha v Laverton [2002] EWCA Civ 1656 and Ward v Tesco Stores Ltd [1976] 1 WLR 810 Recent example: Edwards v Sutton [2016] EWCA Civ 1005 (distinguish likelihood of risk from seriousness of consequences. Not required to guard against every small risk, if not reasonable to do so.)

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See also Dean & Chapter of Rochester Cathedral v Leonard Debell [2016] EWCA Civ 1094 CA (Civ Div): is the danger sufficiently serious to require the occupier to take steps to eliminate it? Must be ‘practical and realistic’.

The Act makes additional provision for: 

Children: S2(3)(a) ‘an occupier must be prepared for children to be less careful than adults’ Glasgow Corporation v. Taylor [1922] 1 AC 44: 7 year old died after eating poisonous berries he picked from a shrub in a public park.

Phipps v Rochester Corporation [1955] 1 QB 450: 5 year old, out with his 7 year old sister, fell down a trench and broke his leg. Simkiss v Rhondda Borough Council [1983] 81 LGR 460: 7 year old seriously injured when she fell from a steep slope on D’s land. Occupiers must act reasonably, but so should parents. Bourne Leisure Ltd v Marsden [2009] EWCA Civ 671: 2 year old drowned in a pond in D’s holiday park. ‘occupier owes a reasonable, not absolute, duty of care to children’

Note also the situation of visitors with known vulnerability (eg blindness): Pollock v Cahill [2015] EWHC 2260

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Visitors with special calling/profession: S2(3)(b) ‘an occupier may expect that a 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.’ Ogwo v Taylor 1988 (above) Roles v Nathan 1963 (below)

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Warnings: S2(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 to be reasonably safe.’

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Roles v Nathan [1963] 2 All ER 908: chimney sweeps killed by fumes from D’s boiler. The defendant had warned them about the risk

Glasgow Corporation v. Taylor [1922] 1 AC 44 Pre-OLA case: "In grounds open to the public as of right, the duty resting upon the proprietors, or statutory guardians like a municipality, of making them reasonably safe does not include an obligation of protection against dangers which are themselves obvious". Staples v West Dorset DC [1995] 93 LGR 536: C slipped on sea wall covered in seaweed Darby v National Trust [2001] PIQR 372: C drowned whilst swimming in a pond on NT land. Taylor v English Heritage [2016] EWCA 448: ‘it would not have been obvious to a person standing on the platform that the sheer bastion wall that was visible to such a person continued at a right angle below the grass pathway.’ Warning needed here, but no need for a ‘proliferation of unsightly warning signs’. 

A delegable duty Bring in expert and if they do work and someone gets injure, is that the occupier’s responsibility or has it been delegated to the worker? S2(4)(b) ‘where damage is caused to a visitor by a danger due to 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 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.’ Haseldine v Daw [1941] 2 KB 343: negligent lift repair by an independent contractor Woodward v Mayor of Hastings [1945] 1 KB 174: injury on an icy step not properly cleaned by an independent contractor Gwilliam v W Hertfordshire NHS Trust [2002] 3 WLR 1425: injury on splat wall supplied and operated by an independent contractor. Some criticism of Gwilliam in Glaister v Appleby in Westmorland TC [2009] EWCA Civ 1325

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3. Causation and remoteness of damage The same rules apply as with general negligence: Jolley v Sutton LBC [2000] 3 All ER 409 (considered in previous topics)

4. Defences 

Contributory negligence

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Volenti non fit injuria

Section 2(5) Occupiers’ Liability Act 1957 Bunker v Brand [1969] 2 QB 480: A workman on D’s tunnelling equipment knew of the risks of injury. Where C has no choice about entering premises, then s/he will not be accepting the risk. Burnett v British Waterways Board [1973] 1 WLR 700

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Restriction or Exclusion of liability Contrast warnings and limitations on the duty.

s.3 OLA 1957 and s.2 Unfair Contract Terms Act 1977 White v Blackmore [1972] 2 QB 651: D displayed notices at a charity race that excluded liability for any injury caused.

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OCCUPIERS’ LIABILITY ACT 1984 The Act is a response to the mass of distinctions and uncertainties that arose when the courts were asked to deal with the issue of those who were not lawful visitors on premises. A trespasser does not have permission to be on the premises and the occupier does not know of her/his presence, or, if the occupier did know, s/he would object to it. At one time the only duty for an occupier was to refrain from inflicting damage intentionally or recklessly on the trespasser: R. Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358

1. The relevant relationship for a duty to arise 

Defendant must be an occupier See tests above under OLA 1957

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Claimant is not a lawful visitor  Trespassers

Stone v Taffe [1974] above Lowery v Walker [1911] above Allurements Glasgow Corporation v Taylor [1922] above Phipps v Rochester Corporation [1955] above Jolley v Sutton [2000] above  The Countryside and Rights of Way Act 2000 s. 13 person using CROWA for ‘rights to roam’ are not ‘visitors’ under the 1957 Act but do fall within a limited class of protection under the 1984 Act Follow the link to the relevant section http://www.opsi.gov.uk/acts/acts2000/00037--b.htm#13

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Users of Rights of Way

Note that these are neither visitors nor trespassers. McGeown v N.I. Housing Executive [1994] 1 AC 233: ‘it would place an impossible burden on landowners if they not only had to submit to the passage over [rights of way] of anyone who might choose to exercise them but also were under a duty to maintain them in a safe condition. Persons using rights of way do so not with the permission of the owner….but in exercise of a right’ (Lord Keith)

2. Current Law: The Occupiers’ Liability Act 1984 – a duty to take reasonable care Before the 1984 Act, the common law was very limited: ‘a duty of common humanity’. Fortunately, the current law, OLA 1984, increases level of duty towards trespassers: s.1(3) ‘An occupier of premises owes a duty to another (not being his visitor) in respect of [any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them] if – a) He is aware of the danger or has reasonable grounds to believe it exists; b) He knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger……and c) The risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.’

s.1(4) ‘……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 the danger concerned.’

s.1(5) ‘Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk’. s.1(6) ‘No duty is owed….to any person in respect of risks willingly accepted……..’

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s.1(6A) (as inserted by CROWA) - natural, physical features of the land will not impose liability on the ‘occupier’, should a rambler injure themselves

Revill v Newbery [1996] (above) Keown v Coventry Healthcare NHS Trust [2006] All ER 27: 11 yr old child sustained brain damage as a result of a fall from an external fire escape on hospital premises. Rhind v Astbury Water Park Ltd [2004] EWCA Civ 756: C dived into a lake to retrieve a football and was injured by a fibreglass container that was on the bed of the lake buried in the silt and so not visible from the surface. Donoghue v Folkestone Properties [2003] 2 WLR 1138: C dived from a slipway into the harbour owned and occupied by F. The claimant hit a grid pile two feet under the water and broke his neck. Tomlinson v Congleton BC [2003] 3 WLR 705: C dived into a lake in the D’s park and broke his neck when his head hit the bottom of the lake. Swimming in the lake was prohibited and there were warning notices but no barrier. Ratcliff v McConnell [1999] 1 WLR 670: 19 yr old student suffered severe injuries having dived into the shallow end of the college open air swimming pool. He had climbed over the gate to gain access and whilst aware that there was a warning notice had not read its contents.

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Reading Basic Reading  Horsey & Rackley, Chapter 11 Practice/Revision For practice/revision purposes – have a go at the problem question that Horsey & Rackley use to illustrate the issues in the textbook. Also have a look at past examination questions on the Moodle site. As well as the current module codes LAW2222, 2226 and 3118, you may find older questions under LAW2051, 2051Y or 3110.

Also, you could try the following exercise: Next time you’re on premises open to the public [e.g. a park, museum, cinema, pub, shopping centre, university….bus, train, plane] carry out an occupiers’ liability risk assessment considering the following issues: 1. Who do you think is the ‘occupier’ these premises? What additional information might you need in order to be able to decide this? 2. What risks can you identify where you think the occupier might be at risk of failing to take ‘reasonable care to keep the visitor reasonable safe’? 3. Can you see any warning notices? Would they be effective under the legislation? Consider drafting an effective warning notice to deal with any perceived risks. 4. Can you see any notices purporting to exclude liability? Are they effective? If not, could you draft one that is? 5. Do children have access to these premises? If so, what precautions has the occupier taken or should the occupier have taken with them in mind?

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KEY STEPS TO TRY TO ESTABLISH LIABILITY Below are a few things that you should bear in mind when considering establishing liability under the OLAs. (These are all ‘issues’ to consider, using IRAC method. Explain and apply relevant law, to reach a conclusion on each.) IS D AN OCCUPIER? Apply the relevant tests? What are those tests? What illustrative cases apply?

IS C A VISITOR/NON-VISITOR? Determine so as to apply the correct law (1957 or 1984 Act). What duties are owed? What is the difference?

WASTHE INJURY ON AND RELATED TO THE STATE OF ‘PREMISES’?  

Definition of ‘premises’? (minor point, as almost everything IS….but for completeness’ sake you should consider) Remember the OLAs relate to harm caused as a result of the state of the premises, not what activity’s going on there…authorities?

ANYTHING TO ALTER THE OCCUPIER’S DUTY/STANDARD OF CARE?    

Increased duty – children (How? Rule? Authorities? – What about child trespassers?) Delegated duty – independent contractors (How? Rule? Authorities?) Lessened duty – ‘exercise of calling’ (How? Rule? Authorities?) Warnings – effectivesness (NB warnings and trespassers)

DON’T FORGET CAUSATION AND REMOTENESS

DEFENCES

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