Tort 4. Occupiers Liability PDF

Preview

Summary

tort notes...

Description

Occupiers’ Liability Introduction  Occupier’ liability concerns the duty owed by those who occupy land (and premises upon it) towards the safety of those who enter onto the land.  Occupier’s Liability  This area of tort is similar to negligence and was originally developed through common law, although today it is governed by statute in the UK.  NOTE: In Malaysia the Common Law Principles apply. Common Law Origins - UK  The common law distinguished between different types of entrants to premises.  The duty owed by an occupier varied according to the common law status of the entrant (the category) – invitees; licensees; independent contractors, trespassers. Common Law prior to OLA 1957 & 1984  At common law the duties of an occupier to the persons were cast in the following order: 1. Entry under Contract: Entry into premises could be governed by contract, and that contract might have specified a very high level of liability for any defect in the premises. But such cases were very rare. 2. Invitee: In the absence of any express contractual provision, the invitee had the highest level of protection. 3. Licensee: Any other person on the premises with O’s permission, express or implied was a licensee. 4. Trespasser: At this stage, Occupier was under no liability at all for injury resulting from O’s negligence - the only duty towards trespassers was not to injure them intentionally or recklessly. Reasons for OLA 1957 & 1984  In the 1950’s the common law was considered to be unsatisfactory, on account of (i) the artificial and often arbitrary nature of the distinction between licensee and invitee, (ii) the “draconian” (harsh) decision that an occupier owed no duty of care in respect of negligent injury to a trespasser and (iii) the occupier owed no duty to a visiting workman who continued to work though aware of a danger.  Hence, Occupiers’ Liability Acts 1957 and 1984 which replaced these classifications with ‘visitors’ and ‘non visitors’. LEGISLATION 1. OLA 1957 (Visitors): Came about to replace the complex common law duties with a common duty of care. 2. OLA 1984 (Non-visitors): Was an attempt to reform a common law approach that had an unsatisfactory outcome

DUTY OF CARE  Overlap with negligence.  When then do you claim under Occupiers Liability or Negligence ? Key word is “ state of the premises”

DUTY OF CARE: ‘state of premises’



S1(1) OLA 1957 – Act should apply ‘ …. In respect of dangers due to the state of the premises or to things done or omitted to be done on them .’

Ogwo v Taylor [1987] 2 WLR 988  Fireman injured which putting out a fire. Liability under negligence not OL because the fire did not result from defects in the premises Duty owed by an Occupier to visitors:  S 2(1) OLA 1957: “An occupier owes the same duty, the ‘common duty of care’, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise Who is an Occupier?  No definition – As per Occupier’s Liability Act 1957  S1(2) of the 1957 Act merely states that the rules apply ‘ …. In consequence of a person’s occupation of control of premises…’ DEFINITION – OCCUPIER  Key word is “control” – Can exist with or without physical possession of the premises.  Did the occupier have sufficient control over premises to be able to ensure their safety and to appreciate that a failure on his/her part might result in an injury to his/her visitor Wheat v Lacon & Co Ltd [1966] AC 552 - The def owned a public house and a license was given to the manager and his wife to use the first floor of the building for their own personal use. The defendants had retained the right to conduct repair works. The manager and his wife receive paying guests on the first floor with the permission of the defendants. The pl, a patron had fallen down some steps from the first floor of the building and died as a consequence of his injuries. - HOL held: the def had sufficient control over the private premises on the first floor together with the manager and thus both parties were occupiers and therefore jointly liable. Who can be an “Occupier” ? at p.578 per Lord Denning (Wheat v E Lacon & Co Ltd (1966) AC.552:  “In order to be an 'occupier' it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be 'occupiers'. And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor who is injured in consequence of his failure, but each may have a claim to contribution from the other."  

The test, arising from the Wheat case: Did the particular person(s) have occupational control ? Arises from the presence in and use of, or activity on the premises. There can be more than one occupier

Harris v. Birkenhead Corpn [1976] 1 All ER 341 - A local authority had acquired a house and then left it vacant. Vandals entered the house and broke the door and windows. At a later date, a four year old child entered the house and was injured when he fell from one of the windows. - Issue: Whether the defendant was an occupier - The court held that the def had exercised their statutory right to take possession and control of the premises. Following that , they had immediate right of control as soon as they took possession of the house, and were therefore, the occupier. - The CA held that for the purposes of that Act the Corporation, having the immediate right of control of the property, became its occupier as soon as a tenant had left. - An occupier has a duty to protect infants from a danger of trespassing. - The Council knew the property was empty. They had control of it and they had done nothing about providing any such protection. Bailey v. Armes [1999] EGCS 21

-

The defendant lived above a supermarket. The defendant’s son is allowed to play on the roof top but not allowed to take anyone else to the roof top. The son took his friend who was injured when he fell from the roof, CA: Neither the defendant nor the supermarket owners were occupiers as they did not have sufficient control over the roof.

Who can be a visitor?  S 1(2) OLA 1957 o Liability towards ‘visitors’: ‘visitors’ for the purposes of the Act are those persons who were ‘invitees’ or ‘licensees’ at common law anyone to whom an occupier gave any invitation or permission to enter or use his premises  Common duty of care is owned to ‘lawful visitors (i.e. people whom the occupier owes a duty)  Defines the extent of the occupier’s duty o Contractual Entrance o Invitees o Licensees WHO IS A VISITOR? – Contractual Entrant  Contractual entrant is a person who is on the premises pursuant to a contractual right. Two types 1. Main Purpose Entrant - A person who enters the premises for the purpose of occupying it and who had paid to be on the premises . E.g. Tenant, Guest at Hotel. 2. Ancillary Purpose Entrant – A person who had paid to be on the premises for the primary purpose of some activity other than personal dwelling. E.g. Sports spectator , Passenger bus. Invitees  Under common law a person is an invitee if he is on private or public premises for a business purpose of material benefit to the occupier. Here the invitee has an economic interest in being on the premises.  S1(2)OLA 1957- Those who have been invited to come on the land and therefore have express permission to be there.  Here the occupier owes a duty to an invitee to prevent damage arising from unusual danger or unusual risk . - Indermaur v Dames [1866] 1 MLJ 26 Indermaur v Dames [1866] 1 MLJ 26 - Here the Plaintiff, gas fitter fell through a hole in the floor and injured him whilst he was trying to fix gas pipes at the defendant sugar factory. - Here the court held that this was unusual danger which was known to the Defendant , even though the Plaintiff as an invitee must take reasonable care of his own safety , an occupier must reasonably avoid any damage that could arise from an extraordinary danger that is known to him or ought to have known to him Licensees  At common law , the licensees are those who have been given permission ,express or otherwise to enter the premises. They are neither trespassers nor invitees.  S 1(2) OLA 1957 – Those who have express or implied permission to be there. o Entrant as of right – Right to enter premises that open to the public. o Social Visitors Greenhalgh v. British Railways Board [1969] 2 QB 286. - Here the Claimant was injured crossing a railway bridge. The bridge was built for the convenience of the people living nearby and the Claimant was not such a person. - He used it the bridge as private right of way and not as a ‘visitor’. - The CA stated that “ there was at common law no duty on an occupier of land over which there is a public highway toward persons using the highway and arising out of his occupation or control of the premises. His liability was limited to acts of positive misfeasance and nothing else”

COMMON DUTY OF CARE

 

What is the extent of duty of an occupier to his visitors? Provided under s2(1) OLA 1957

 S2(1)  ‘ An occupier owes the same duty , the common duty of care, to all his visitors except insofar as he is free to do and does extend , restrict, modify or exclude his duty to any visitors by agreement or otherwise;  2(2)  ‘ take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe for the purpose for which he is invited or permitted by the occupier to be there’. Main issues  Standard of Care – ‘Reasonable Man’  The duty only applies under OLA 1957 if the visitor is carrying authorised activities in his visits.  Here the duty is to keep the visitor safe not the premises safe.  all visitors are owed the same duty of care unless agreed otherwise  extent of duty depends on degree of care and want of care relevant to the type of visitors Cole v. Davis-Gilbert [2007] EWCA 396 - A woman broke her leg when she stepped on a hole hidden by grass while she was crossing a village green . - The hole was used for inserting a maypole during annual fetes. - She sued the owner of the village green arguing that, as an occupier , he had duty to keep visitor safe as well the local council and the Royal British Legion who were responsible for running annual fete - Here the Court of Appeal held that there was no duty on the owner to inspect the green for holes , particularly as there were many people who used for different purposes. - Further, the British Legion owed a duty to see that the hole was properly filled, its duty was not indefinite , and certainly not for 21 months. - Claim failed Bourne Leisure Ltd v Marsden [2009] EWCA Civ 671 - Here a mother had left her child unattended in a park bench for few minutes while she was speaking to someone. - The child climbed over a fence and drowned in a pond. - The mother sued the park owner. - The Court of Appeal held that it is impractical to fence off every hazard, and dangers such as drowning in a pond are very obvious to the parents it need not be warned about. The Court of Appeal stressed that this was not the fault of the parent. Right to enter conferred by law  Pursuant to s.2(6) of the Act  Firemen attending a fire, policemen executing a warrant are treated as if they had been given permission to enter by the occupier. Right to enter conferred by contract  s. 5(1) of the OLA 57 operates to imply into the contract the common duty of care:  Where a visitor enters premises in accordance with a contract governing his or her entry, occupiers may include in that contract an express term which specifies the standard of care owe to the visitor  Maguire v Sefton MBC [2006] 1 W.L.R.2550 - The C contracted to use a leisure centre run by the defs and was injured when one of the exercise machines malfunctioned. - Issue: Was the def liable when the contract was silent as to standard of care owed. - CA held that, in the absence of an express term, the only standard of care could be implied was the standard demanded by the 1957 Act – common duty of care to visitors. Right to enter public / private right of way



The Act is silent on the position of users of public and private rights of way, and the common law still applies.

McGeown v Northern Ireland Housing Executive [1994] 3 All ER 53 - C lived in a housing estate owned by the defs. She was injured on a footpath belonging to the defs but which had become a public right of way. The reason for the injury was failure to maintain the footpath. - Held: The establishment of a public right of way ruled out the issue of permission and no duty of care is owed. The action failed. Ward v The Ritz Hotel (London) [1992] CA - The claimant was injured when he fell over a balcony in the defendants’ hotel. The balustrade (railing) was some six inches lower than a British Standards Institution recommendation. - The defs were held liable under the OLA 57 Searson v Brioland[2005] EWCA Civ 26 - The claimant who was attending a wedding at a hotel run by the def. He tripped over a threshold that was 3cm above floor level and sustained serious injuries. - Note: Although there had been no previous incident of this kind at the defs premises. - CA held that the def was in breach of duty.

 See also: Tacagni v Cornwall [2013] EWCA Civ 702 Disabled visitors In Atkins v Butlins Skyline Ltd [2006] 1 C.L.510 - Pl a blind visitor was trapped by closing lift doors at the defs holiday camp although it was considered safe for sighted visitors - Def the occupier was held liable. - Note: It follows that an occupier must take greater care for that visitor’s safety than a sighted person. Definition of Premises  The OLA 1957 is silent on the meaning of premises and there is no fixed definition.  Some limited definition is given in s 1(3)(a) which refers to :  A person having occupation or control of any ‘…..fixed or moveable structure, including any vessel, vehicle and aircraft……”  Note: As such the common law applies. Common Law – “Premises” defined  Premises include all forms of buildings, land spaces, vehicles which are used for carrying persons including tractors and structures such as scaffolding, ladders, grandstand etc.  Examples: o Lift -Haseldine v Daw & Son Ltd [1941] o Aircraft- Fosbroke-Hobbes v Airwork Ltd [1937] o Ships in dry docks- London Graving Dock v Horton [1951] o Vehicles –Hartwell v Grayson [1947] Liability depends on fault and is not strict liability Lewis v Six Continents plc (2005) - C fell out of a window on the 2nd floor of the D's hotel. It was not clear exactly what had happened but there was evidence that the C had been drinking and may have leant out of the window to get some air. The height from the base of the window to the floor was 75cm. The window had no limiter and could be opened fully. - The C argued that the height from the base of the window to the floor was less than the 80cm required by good practice and that all windows above ground floor level out of which someone could fall should have limiters or a guard. - Held: the hotel was not liable under s.2 of the Occupiers' Liability Act 1957, as it was not reasonably foreseeable that an adult would lean out of the window in such a way as to say that the occupier should have limited the way the window opened.

Leverton v Kiapasha (trading as takeaway supreme) (2002) EWCA Civ 1656

-

-



The Claimant slipped on excess rainwater which had gathered on the floor of the premises 1st. Instant the Claimant won, def appealed the decision. On appeal it was held that it was not reasonably practicable perfection to expect the owner of the premises concerned to mop up rainwater as it came in. A doormat would not have prevented the excess of water on the floor of the premises. An accident would have been avoided if the customer concerned had taken reasonable care for her own safety. The CA held that whilst an occupier must take reasonable care to see that his visitors are reasonably safe, he does not guarantee their safety. To suggest otherwise would be a counsel of perfection imposing an almost strict liability which, the law presently does not do. See also: o Sawyer v Simmonds (1966) o Cole v Davies-Gilbert (2007) o Siddorn v Patel & Anor [2007] EWCH 1248

Special Duty Situations: Children  S 2(3)(a) OLA 1957: “An occupier must be prepared for children to be less careful than adults”. o Therefore, if a occupier admits children to the premises the child visitor must be reasonably safe. o Children are owed a higher duty of care Maloney v Lambeth London Borough Council(1966) - Here a 4 yr old fell through a gap in railings guarding a stairwell and was injured. An adult could not have fallen through the gap so such an injury would have been impossible. Nevertheless it was dangerous to a child and a child in any case may have been incapable of appreciating the risk involved. - The occupier was held to be liable by the court. Allurement Principle  Occupiers are held liable to children who have been attracted by “traps” on certain part of their premises and subsequently suffering injury.  Example: plant/fruits, objects etc…. Jolley v London Borough of Sutton [2000] - The council failed to remove an abandoned boat from an estuary shore for two years. Children regularly played in the boat. 2 boys, aged 14 yrs jacked the boat up to repair it, the boat fell on one, injuring him. - HOL felt that it was an obvious risk that children playing on or near the boat might be injured. It is sufficient that some risk is foreseeable. - Council held liable There are some instances where there are assumption that parents must exercise reasonable care for their children’s safety.  Older cases prior to OLA –Common Law Glasgow Corporation v Taylor [1922] - 7yr old while playing in a park noticed some poisonous berries in a bush. The bush was not fenced off. Child ate the berries and died. Def occupier of land was liable as the berries constituted an “allurement” or “trap” to the child. - Unresolved issue: The degree to which occupier’s are obliged to make their premises safe for unaccompanied children? - Note: Subsequent development in cases relating to children suggests - Occupier not liable as parent’s should be taking care of the child. The younger the child, the parents should shoulder some responsibility.

Phipps v Rochester [1955]

-

A 5 year old boy was walking across some open ground with his 7 year old sister. He was not accompanied by an adult. He was injured when he fell into a trench. Held: The Corporation were not held liable as an occupier is entitled to assume that prudent parents would not allow their children to go unaccompanied to places where it is unsafe. Note: The result of this decision was that if the child was so young that a degree of supervision by an adult ought to be expected, then the only required warnings are those that would be needed to alert the guardian to the danger.

Simkiss v. Rhondda Borough Council (1982) 81 LGR 460 - Here two little girls were sliding down the side of a mountain on a blanket. They flew over a thirty foot bluff and were injured . - Their parents said that the local authority should have fenced the area off. - The court held that the parents should have told the kids not to play on the dangerous land. Further, the Court of Appeal had concluded that the child’s father did not consider the area dangerous, as such it could not be expected that the defendant to keep such high standard of care. Bourne Leisure v Marsden [2009] EA Civ 671 - The claimant had taken their children to a holiday park. The children had briefly evaded the attention of their mother who was talking to another holiday-maker, and the older child ( aged 2) had drowned in a pond. There was a path to the pond, which was fenced, but the child was able to climb over the fence. - The CA revisited Phipps case and held that there were no breach of ...