Remedies & Occupiers Liability PDF

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Tort Law – Lecture 10 Occupiers’ Liability Similar to common law of negligenceNeed for statutory rules - Common law (general negligence rules) developed in a harsh way in relation to the scope (or standard) of duty of care of occupiers - The duty of care when on a premise was different depending on ...

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Tort Law – Lecture 10 Occupiers’ Liability Similar to common law of negligence Need for statutory rules • Common law (general negligence rules) developed in a harsh way in relation to the scope (or standard) of duty of care of occupiers • The duty of care when on a premise was different depending on why you were there • Contract (plumbers etc.) - high standard of care • Invitees (shoppers) - lower standard • Licensee (e.g. friend visiting) - lower still • Trespassers (uninvited persons) - almost no duty of care owed Two statutes aimed to simplify the law • OLA 1957 – all lawful visitors • OLA 1984 – all unlawful visitors Lawful Visitors OLA 1957: Lawful Visitors s2(1) OLA 1957: An occupier of premises owes a “common duty of care” to all lawful visitors – gives us the 6 questions below (would answer them in a problem question) 1. Who is an occupier? 2. What are premises? 3. Who is a lawful visitor? 4. What is the duty of care? 5. What is the standard of care/what constitutes breach of duty? 6. Defences and remedies Who Is the occupier? • S 1(2): the duty of care is imposed by law in consequence of a person’s occupation or control of the premises… • Have to work out who is in occupation or control of the premises • Can have multiple occupiers • Wheat v Lacon (1966): ‘Wherever a person has a sufficient degree of control over the premises that he ought to realise that any failure on his part to take care may result in injury to a person coming lawfully there, then he is an “occupier” and the person coming lawfully there is his “visitor – if you have enough control over the premises that you can remedy repairs then you will be an occupier • Furmedge and ors v Chester-Le-Street DC (2011): Landowner and event promoter both had sufficient control of premises • The landowner has allowed field to beused for art exhibition • The person running the event sold tickets and could let them into the premises or not • Both the landowner and the person running the event both had control What are premises? • Land and buildings on land – s(1)3 & common law

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Fixed or movable structure, including any vessel, vehicle or aircraft - s1(3)(a) Something on land that doesn’t have a building on it does still count as premises

Who is a visitor? • “an invitee” or “licensee” at common law before the Act was passed s1(2) • Contractual entrants (plumbers, cinema-goers, etc) s5 • An invitee could be someone you’ve invited round for dinner at your house • A licensee could be a shopper – they don’t have a contract as they haven’t brought anything yet • Persons entering by authority of law (police, meter readers, post-delivery, etc) s2(6) Visitors: Permission Limits • Area: Pearson v Coleman (1948) o A circus – people allowed into tent o When child went through barrier marked danger, they were no longer a lawful visitor as have gone past area • Time: Stone v Taffe (1974) o Club open for a time, if stay after close you’re a trespasser • Purpose: The Calgarth (1972) o ‘When you invite a man into your house, you do not invite him to slide down your bannisters’ What is the Duty of Care? • s2(1) - common duty of care • s2(2) - common duty of care • is a duty to take 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 • You don’t have to do everything to keep your visitor safe, you just have to do what was reasonable • Visitor (not premises) that must be reasonably safe • Duty only relates to reason for visiting Discharging the Duty of Care – What is the Standard of Care? s2(3) - expect visitors to have some regard for their own safety – not keeping visitors perfectly safe all the time • Bowen and others v The National Trust (2011) • Some children were at a national trust place • Hid under the tree because of rain • The branch fell and hurt children • Court found in favour of the defendants, they had acted reasonably – provided documents to show they had managed the trees • reasonable competence, no breach • Same as common law – take into account probability and gravity of harm etc • Cunningham v Reading Football Club (1991) • Occupier let building fall into disrepair • Frequently used by spectators going to games

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Defendants found to be responsible for the fact that when a fight broke out the hooligans could use the bricks to throw at people Wouldn’t be too much to ask for the defendant to clear the bricks Occupier should know that hooligans would use loose bricks to throw – not reasonable, in breach

Discharging the duty of care: The Child Visitor s2(3) - occupier can expect visitors to be careful • BUT s2(3)(a) ‘an occupier must be prepared for children to be less careful than adults’ Jolley v Sutton London Borough Council (2000) - reasonably foreseeable that children would climb onto boat (even if adults would steer clear), so council should have removed it Phipps v Rochester Corporation (1955) - responsibility for children lies primarily with parents not landowners • Deep ditch on land that was regularly used as a cut through • Parents let their children play in ditch and they injured themselves • Courts held that parents should inspect the sight Discharging the duty of care: What if the visitor is a specialist? • s2(3) - occupier can expect visitors to be careful ESPECIALLY IF visitor has special relevant skills • s2(3)(b) - 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 • Roles v Nathan (1963) • Chimney sweeps were asked to clear out boiler room with carbon monoxide • They didn’t take enough breaks whilst working and died • Court said it was their responsibility to know how long they could be in the room without taking breaks • Salmon v Seafarer Restaurants (1983) • Salmon was a firefights • Fire negligently started in restaurant • Fireman climbed on roof to sort fire out and they were injured • Sued • The occupier was at fault Discharging the Duty: Warning – if you’ve warned someone of danger you have discharged your duty • s2(4)(a) o Where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning [will only absolve the occupier of liability if] it was enough to enable the visitor to be reasonably safe • Warning has to enable visitor to be safe • If there is a slippery entrance to the property and this was the only way, putting up a warning sign wouldn’t make it reasonably safe • Roles v Nathan (1963)

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o Occupier also warned chimney sweeps about the levels of the carbon minoxide Shorten v Grafton District Golf Club (2000, Australian case) o Persuasive case o Shorten playing golf on the golf course, o Retrieves golf ball from some land o Got attacked by kangaroo, jumped on his head o Court said the occupier should have warned of the dangers as they already knew of 4 previous kangaroo attacks But not if danger is obvious: o Darby v National Trust (2001)

Discharging the duty: Danger caused by independent contractors s2(4)b - the occupier will not be liable for damage done by faulty work if they acted reasonably in all the circumstances • Checking that the contractor is competent – don’t just let anyone in to fix something – would have to find examples of them having relevant experience • Checking the work done (if possible) • Woodward v Mayor of Hastings (1945) • Hazeldine v Daw • Checking that the contractor is insured (against claims)? • Gwilliam v West Hertfordshire Hospitals NHS (2002) • NHS had fundraiser on its land • Employed contractor to build slap wall • Claimant sued contractor • Their insurance ran out 2 days before the day • Claimant argued that they should have checked whether their policy had run out • Check insured but no need to check details of policy Defences and remedies • contributory negligence (implied by s2(4)) • voluntary assumption of risk s2(5) • Grimes v Hawkins (2011) • JD Geary v Wetherspoons (2011) UCTA – exclusion/restriction of duty? Remedies – personal injury and property damage Trespassers OLA 1984: Non visitors (trespassers) s1(1) - statutory rules tell us whether a duty of care is owed and what that duty is 1. Who is an occupier? (same as 1957 Act) 1. Who is NOT a lawful visitor? 2. What are premises? (same as 1957 Act) 1. What is the duty of care?

2. What is the standard of care? 3. Defences and remedies Q2 – Who is a trespasser? Permission Limits • Area: Pearson v Coleman (1948) o Girl was lawful visitor whilst in public part of circus o When she passed barriers saying no entry she was a trespasser • Time: Stone v Taffe (1974) o Could enter shop as visitor o If stay after close you are a trespasser • Purpose: The Calgarth (1972) Q4 Trespassers: Is there a duty of care? – not claimant friendly • S 1(3) conditions to satisfy for occupier to owe a duty: o aware of the danger or has reasonable grounds to believe it exists, o 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. o risk is one which an occupier may reasonably be expected to protect visitors from. • a) Rhind v Astbury (2004) CA o Person jumped into water and injured themselves on something under the water o D didn’t know object submerged under water o No duty of care towards diver • (b) Donoghue v Folkestone Properties Ltd (2003) o Claimant jumped into water in the winter o D knew people dived in summer but had no reason to believe that anyone would go swimming on a winter night o Reasonable to expect people would dive in the summer but wasn’t reasonable that someone would jump in in the winter when it was freezing o No duty of care towards diver • [c] Tomlinson v Congleton BC (2004) HL o o Swimming forbidden with obvious notices warning of danger o People frequently ignored notices and swam o D knew and intended to increase security – wanted to plant reeds near the edge to stop people getting in o C injured diving into lake o HL - no duty - risk not one which D should reasonably be expected to protect people from o Risk inherent in swimming/diving generally – obvious risk Q5 Trespassers: Standard of Care • Not as high a standard as OLA 1957 - the claimant has not been invited onto premises

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S 1(4) - take such care as is reasonable in the circumstances that Claimant does not suffer injury on premises (not as high as keep visitor reasonably safe) Platt v Liverpool City Council (1997) • Can't have 24/7 security Ratcliffe v McConnell (1999) • Use ordinary negligence tests here

Q5 Trespassers: Discharging the duty • Easier to discharge duty towards trespassers than towards lawful visitors • Section 1(5) OLA 1984 • Discharge duty by warning - take reasonable steps to bring danger to claimant’s attention • Under 1957 Act the warning has to enable the visitor to be reasonably safe • 1984 Act requires less of Occupier QB OLA 1984: Defences and remedies Defences: • Contributory Negligence • Voluntary assumption of risk: s6(1) OLA 1984 • Ratcliff v McConnell (1999) Remedy: • For personal injury only s1(1)(a) 1984 OLA • (1957 OLA personal injury and property damage)

Tort Law – Revision Notes Occupiers Liability 1957 Act – Covers lawful visitors (inc. invitees and licensees at common law and contractual visitors) 1984 Act – Covers unlawful visitors The Occupiers Liability Act 1957 An occupier owes a duty of care to visitors in respect of dangers posed by the state of the premises or by things done or omitted to be done on them When is a duty owed? • The occupier owes a common duty of care to all lawful visitors who suffer injury on their premises (s1(1)) • Occupiers and visitors are to be defined in the same way as at common law (s1(2)) • In order to established when a duty of care is owed it is necessary to look to both the 1957 Act and case law for answers as to: o Who is an occupier? o Who is a lawful visitor? o What are premises Occupiers: ‘control of premises’ • An occupier doesn’t need to be the owner of the premises and nor is the owner necessarily the occupier • The occupier is the person who has, or is able to exercise, a sufficient degree of control over the premises (s1(2)) • Wheat v Lacon – shows an occupier doesn’t need to have physical possession of the premises • One may be an occupier for the purposes of the 1957 Act despite never having resided in or physically occupied the premises • Harris v Birkenhead Corporation – held even though the corporation had never been to the premises, they were nevertheless occupiers as soon as the previous tenant had left – they had control of the property and, though they didn’t exercise it, the ability and duty to secure it Visitors: by invitation or permission only • An occupier only owed a duty under the 1957 Act to those they have invited or have given permission to enter or use the premises (s1(2)) • Such permission is rarely unlimited o Scrutton LJ ‘When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters (The Calgarth) • By limiting the extent of the permission they give to a visitor, an occupier can restrict they duty they owe to them • The occupier may change the terms of their permission and even revoke it whilst the visitor is on the premises – to be effective must be done in a way that is obvious to the visitor

Premises: including ‘any fixed or moveable structure’ • Under 1957 Act the definition of premises extends to ‘any fixed or moveable structure, including any vessel, vehicle or aircraft (s1(3)) • Definition encompasses less permanent structures e.g. scaffolding The Standard of Care • Under the 1957 an occupier owes a positive duty to act 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’ (s2(2)) • Where the occupier is aware of a particular vulnerability of the visitor, and can reasonably be expected to take steps to guard against it, their duty of care is higher • The occupiers duty only applies for the purposes for which the visitor was invited onto the premises and finally that the occupier isn’t under ‘an obligation to ensure the safety of visitors, merely to take reasonable care to provide reasonable safety’ (Mackay J Bowen v National Trust) • Where the occupier has breached their duty of care is determined by the same basic principles as in the common law of negligence • 1957 Act requires courts to consider what is reasonable ‘In all circumstances of the case’ (s2(2)) including the degree of care expected from the visitor/claimant • Courts take into account the resources of the occupier when considering what steps they might reasonably be expected to take to ensure the visitor is reasonably safe • Occupiers duty to ensure that the visitor will be reasonably safe whilst on their premises doesn’t mean that the visitor can’t be expected to take reasonable care for their own safety Children • When the visitor is a child more may be required of the occupier to ensure that they are kept reasonably safe • The occupier must take into account that children will be less careful than adults (s2(3a)) • Jolley v Sutton London Borough Council • The same rules apply for children when determining whether a child is a visitor for purposes of the 1957 Act • In deciding whether the common duty of care has been breached, an occupier is entitled to assume that parents will take reasonable care of young children – established in Phipps v Rochester Corporation ‘Persons in the exercise of a calling’ • Less is required of occupiers in respect of visitors who are considered able to look after themselves • Skilled visitors are expected to guard against specialist risks associated with their profession (s2(3b)) • Roles v Nathan o Lord Denning ‘the duty was discharged … in regard to the dangers that caused their deaths. If it had been a different danger, as for instance if the stairs leading to the cellar gave way, the occupier might no doubt be responsible, but

not for these dangers which were special risks ordinarily incidental to their calling’ Warnings • An occupier may discharge their duty by giving a warning of the potential danger (s2(4a)) or contributory negligence (s2(6)) • Warnings may be verbal, but can also be visual or written • Will only be sufficient if in all the circumstances it is enough to enable that visitor to be reasonably safe • In English Heritage v Taylor [2016] the claimant was able to recover for the serious injury he sustained after falling over a sheer drop while on a day out with his grandchildren at Carisbrooke Castle. The defendant had failed to provide a sign warning of the drop which wasn’t obvious • Where the danger is obvious, there is usually no need to give a warning – Staples v West Dorset District Council • Failure to warn about one type of danger won’t help the claimant if they suffer personal injury as a result of an unrelated danger Notices excluding liability • Presence of an effective warning notice will defeat a claim under the 1957 Act because it means, in the circumstances, the defendant has taken reasonable care to ensure that visitors are safe on their premises • By issuing a warning the defendant has told visitors what they must do and not to do to avoid being harmed • Where the premises are occupied for business purposes, an occupiers ability to restrict liability is restricted by section 2(1) and 2(2) of the Unfair Contract Terms Act 1977 o Such an occupier is unable to restrict liability for death or personal injury resulting from negligence o But can restrict their duty in relation to other damage where it is reasonable to do so Faulty execution of work • Where an accident is the result of a subcontractor’s work on the premises, the occupier will not be liable if, in all the circumstances, they have acted reasonably in entrusting the work to an independent contractor and have taken reasonable steps (if appropriate) to check that the contractor is competent and that the work has been properly done • Upshot of decision is Gwilliam is that a defendant occupier may be liable to the victims of a third party’s wrong, if they fail to ensure that the third party is in a position to meet any such liabilities Defences • An occupier will not be liable where a visitor’s injuries arise from ‘risks willingly accepted as his by the visitor’ (s2(5)) or where their own negligence has contributed to the injuries they have suffered The Occupiers Liability Act 1984 Under the 1984 Act, an occupier owes a duty to take reasonable care in all the circumstances to see that persons ‘other than his visitors’ – typically trespasser – do not

suffer injury as a result of ‘danger due to that state of the premises or to things done or omitted to be done on them’ (s1(1) Establishing a duty • In order for a duty to be owed under the 1984 Act the following condition, set out in section 1(3) must be met: o That the occupier is aware of the danger or has reasonable grounds to believe that it exists; and o The occupier knows, or has reasonable grounds to believe that someone is, or may come, in the vincity of the damage (whether or not they have lawful authority to do so); and o The risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer some protection • If all 3 conditions are satisfied the occupier will owe a duty of care in respect of any personal injury suffered by a non-visitor – the act doesn’t extend to property damage • Tomlinson provides an excellent example of the operation of the 1984 Act o Under the 1957 Act, all the claimant needs to establish is that they were a lawful visitor to the defendants premises – one proved the occupier will automatically owe the claimant a duty of care and attention shifts to the other stages of the claim o Under the 1984 Act, this is less straightforward, more claims defeated at this stage Awareness of (or reasonable grounds to believe in the existence of danger) • In order for an occupier to owe a non-visitor a duty of care, they must be aware of the danger, or ha...