Tort - Occupiers Liability Seminar PDF

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Tort - Occupiers Liability...

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Tutorial 5 - Occupiers Liability Act 1957/1984

Generally, The OLA 1957 regulates the duties owed by an occupier to ‘visitors’ to his or her premises, whilst the 1984 Act applies to ‘others’, generally trespassers. 1) The Act covers damage to property as well as personal injury: (caused to a visitor). This applies even if the visitor’s property is not their own, for example a borrowed car. That doesn’t however apply to property that is outside the boundaries of the premises. 2) Liability under the Act may be limited by an express term of a contract, or by notice given to visitors: an occupier can do this by either erecting a sign/notice or including a clause in the contract where there is one which sets the standard of care that they will owe.

Definition of occupier: Section 1(2) of the Act simply states that an occupier is any person “who would at common law be treated as an occupier”. So, you need to look at the case law. Generally, the courts seem to have taken a fairly broad approach. They estimate that a person will be an occupier if he or she has a sufficient degree of control over the state of the premises. They don’t have to legally own the land. As per Wheat v Lacon & Co. Essentially, the question before the courts is not whether a person is in actual occupation of the property but whether or not he exercises control over the property. Physical possession is not a prerequisite (as per Harris v Birkenhead). When a contractor undertakes work of a large scale, they would become the occupier of the site, whilst a decorater and painter would not. Definition of premises:

Section 1(3)(a) of the Act recognises it as “any fixed or moveable structure, including any vessel, vehicle or aircraft”. Case law has established that it can apply to buildings, lifts, ladders, scaffolding etc. Definition of visitor: Section 1(2) of the Act says that a visitor is someone who would have been either an “invitee” or a licensee” before the act was passed. I.e. if you have permission to be on the premises, then you’re a visitor, 54 act applies. IF not, you’re not and the 84 Act applies. To some extent, an occupier is free to set their own standard of care in relation to contractual entrants. But, where he doesn’t do so, the entrant is treated in the same was as visitors that are owed a “common duty of care”. The Act gives no protection to trespassers. They are afforded more rights under the 1984 Act. Persons entering by authority of law/ persons exercising rights of way : 1) This would be firemen for example, police executing a warrant. 2) These people are not ‘visitors’ under the act. Persons exercising private rights are owed a duty under the OLA. Those exercising a public right of way are only owed the limited duty. Hence, an occupier isn’t bound to maintain the natural features of public land that run over his land. Implied permission:  Someone who enters the premises to speak with the occupier will have implied permission. A postman for example, unless forbidden by a sign. Limitations on permission:  An occupier may give permission for entry on some parts of the premises but not others.  When the occupier revokes the permission, the visitor will be granted an adequate amount of time to leave the property. Difficulties arise when the visitor strays beyond the permitted area. If an occupier wants to exclude an area, they have to take reasonable setps to inform the visitor that the area is out of bounds (Gould v McAuliffe).

Thus, when a visitor is invited into a property for one purpose (sleeping) and starts to pursue an activity completely unrelated (jumping on the matress), they may cease to be a visitor, even though they have not strayed from the permitted area. Permission must be given by the occupier themselves, no other permission will suffice (see section 2/2 of the OLA 1957). The common duty of care: Section 2(2) states that: “The common duty of care is a duty 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 or she is invited or permitted by the occupier to be there”.  Where an occupier merely fails to protect a visitor from a danger on the premises, liability will arise, even if they did not create that danger.  Thus, the act imposes liability for omissions. Discharging the common duty of care: To what extent can an occupier expect a visitor to care for their own safety? 1) CHILDREN: An occupier must be prepared for children to be less careful than adults. They tend to fail to appreciate the danger that are obvious to adults. In discharging their DOC, an occupier needs to be aware that they tend to be attracted to dangerous things. So generally, the courts won’t be very lenient when it comes to personal injury with children, simply because most things are foreseeable. However, this won’t always apply. Example of tiny kids, where basically everything can be a danger to them. They don’t need to ensure that their property is as safe as a nursery. The law doesn’t want them to exclude toddlers altogether, as this would be socially undesirable. Instead, the law says that the occupier is entitled to expect that the child is supervised by a responsible adult (as per Phillips v Rochester Corp).

2) PROFESSIONAL VISITORS: Section 2(3)(b) provides “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.” Hence, an occupier can expect a skilled visitor will take precautions against risks ordinarily associated with their trade (as per Roles v Nathan). But, if they become injured not because of their own fault, but because the premises were unsafe, the occupier won’t necessarily be able to escape liability.

Giving a warning of the danger: Section 2(4)(a): “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”. Hence, a distinction is drawn between an occupier who simply warns a visitor of the risk, and one who enables the visitor to be reasonably safe. Under the act, only the latter will completely absolve the occupier.    

The warning must tell the visitor what to do in order to avoid the danger. The warning must be given in terms which are comprehensible to the V. A warning given by someone other than the O will generally not suffice. A sign “visitors enter at their own risk” is not a warning at all.

Entrusting work to independent contractors: Generally, an employer is not responsible for the negligent activity of an independent contractor. SO, an occupier will not be liable if:  It was reasonable to entrust the work to an independent contractor  The occupier took reasonable steps to satisfy himself that the contractor was competent; and  The occupier took reasonable steps to ensure that the work was done properly.

The occupier obviously doesn’t have to ensure that the contractors employees are safe from harm. Only perhaps when they are aware of a huge danger.

Exclusion of liability:  DISPLAYNG A NOTICE ON THE PREMISES: Bear in mind that there is s2(1) of the Unfair Contract Terms Act. Generally, you need to make sure that people are fully aware of this sign.  AN EXPRESS TERM OF A CONTRACT: When a visitor enters a premises in accordance with a contract, the occupier can include an express term which specifies the SOC owed to their visitor. The occupier cannot say that a term is implied, it has to be clear.  CONTRACTS EFFECT ON THIRD PARTIES: For example where someone is letting a room and they allow someone to come into their room. Basically, B is owed the Standard Duty of Care. The term in the contract will not apply to B.  UNFAIR CONTRACT TERMS: Basically, you can’t exclude liability for personal injury or death.

LIABILITY TO NON VISITORS: People don’t necessarily have to intend to be a trespasser, children will be trespassers. You can enter a visitor and then become a trespasser as we have seen.  The duty to trespassers is to take care that the trespasser doesn’t suffer personal injury on his premises.  No duty is owed in respect of a trespasser’s property.  The personal injury is owed if: - The occupier is aware of the danger, or has reasonable grounds to believe that it exists.

- The occupier knows or has reasonable grounds to believe that a trespasser is in the vicinity of danger, or may come to that vicinity; and - The risk of personal injury is one against which the occupier may be expected to offer the trespasser some protection. An occupier can exclude liability to trespassers if they give warning of danger, or if they take reasonable steps to discourage trespassers from entering the danger. For example, by locking gates, erecting fences. The warning doesn’t necessarily have to inform the trespasser of how to avoid the danger. No duty can be imposed on the occupier unless they knew of the trespassers presence on their land/ or the condition or danger on their land. They’re under no duty to enquire as to the state of their land merely for trespassers. DEFENCES: The defences of voluntary assumption of risk and contributory negligence will arise under the OLA 1957.

CASE: Wheat v Lacon & Co: Facts: The D owned a public house. They allowed the publican and his wife to live in accommodation above the pub: not as tenants but as licensees. The brewery gave Mrs Richardson the permission to take in paying guests in part of the upstairs accommodation, access to which was gained by an outside staircase. The staircase was dangerous because its handrail did not go all the way to the bottom and because it was unlit. One evening, the plaintiff’s sued the brewey under the 1957 Act, and the question arose whether the brewery were “occupiers” of the private part of the building. Judgment: The HOL ruled that the brewery had retained sufficient control over the upstairs part of the premises to be regarded as occupiers. Although they as granted Mr and Mrs Richardson a licence to occupy the upstairs part of the premises, they had retained the right to access that part themselves. Hence, they could still exercise control over the state of the premises. The HOL were of the view that all three of them were occupiers under the Act. The standard of care however, was defined by the extent to which each had control over the premises. On the facts however, neither occupier had fallen below their respective standard of care. The handrail did not by itself make the staircase unsafe, and they were not responsible for a stranger having caused it to become unlit by removing a light bulb. Precedent set:  There can be more than one occupier of premises; and  Where the owner of premises licenses others to occupy it, but they retain the right to enter, he remains an occupier for the purpose of the

Act. This is contrasted with a situation where they grant a tenancy conferring possession of the property onto another. There, they would have given up control of the property and cannot be viewed as an occupier.

CASE: TOMLINSON V CONGLETON BOUROUGH COUNCIL The D council was in charge of the lake that was for public use. “Dangerous water, no swimming”. They had employed rangers to ensure that no one went in it. But, visitors would frequently swim in the lake, ignoring notices. Visitors nearly drowned on numerous occasions, so they tried to make the beach less appealing, however they didn’t get enough time to do this. D ignored the signs. Ran into the water and dived badly. Man dived in and became tetraplegic. Court rules that there was no liability. The danger posed is that people could drown. The council were worried about it. They were worried that they were going to get sued. The courts didn’t feel that any risks arose under section 1(1)(a) in terms of the state of the premises. The danger (of drowning) was an obvious danger, no hidden dangers, no hidden rocks etc. No danger posed by the state of the premises, then no liability will arise.

CASE: DONOGHUE V FOLKSTONE PROPERTIES: 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. Very similar to the Tomlinson case. Hits his head and breaks his neck.

Originally:

The trial judge found for the claimant but reduced the damages by 75% to reflect the extent to which he had failed to take care of his own safety under the Law Reform (Contributory Negligence) Act 1945. The defendant appealed contending that in assessing whether a duty of care arises under s.1(3) each of the criteria must be assessed by reference to the individual characteristics and attributes of the particular claimant and on the particular occasion when the incident in fact occurred ie when assessing whether the defendant should be aware of whether a person may come into the vicinity of the danger, it should be assessed on the likelihood of someone diving into the water in the middle of the night in mid-winter rather than looking at the incidences of diving during the summer months.

CASE: SWAIN V PURI Ratio: The expression ‘reasonable grounds to believe’ meant actual knowledge or ‘shut-eye’ knowledge of the actual risk of injury to a child trespasser, or of primary facts that the court considers provides reasonable grounds for believing that the risk exists. The two children stumbled onto a construction site. The 9-year-old fell through a skylight. Should the occupier have reasonable grounds to believe that there would be 9year-olds in the vicinity? The occupier still needs to know some facts to trigger the knowledge. For example: complaints that children were trying to get in; or children going wild in the area. Constructed knowledge doesn’t arise under the section. You don’t have to seek out the knowledge. But if facts come to your knowledge then you should have reasonable belief people should be there.

Questions for general discussion: 1) Why do trespassers constitute a problem for the law of occupiers’ liability?

Essentially, the first OLA doesn’t recognise any right to trespassers. The 1984 Act introduces rights for trespassers In the 1954 OLA: Landowner only obliged not to intentionally injure trespassers or to put out dangerous traps for them intending to injure them. At this stage, the court was very anti-trespassers. No duty owed unless you actually set out to hurt or catch them, you’re not liable. This changed in the 1984 act, more responsibility was essentially put onto occupiers to make sure that they don’t omit to help trespassers, or purposefully injure them/ omit to help them if they know of a danger. The personal injury will be blamed on the occupier if: - The occupier is aware of the danger, or has reasonable grounds to believe that it exists. - The occupier knows or has reasonable grounds to believe that a trespasser is in the vicinity of danger, or may come to that vicinity; and - The risk of personal injury is one against which the occupier may be expected to offer the trespasser some protection.

Problem question: In this situation the 84 Act will apply because they are trespassers, not visitors. Is it a danger that will be obvious to an adult? Yes, it is. Natural dangers are definitely obvious to adults, but may not be obvious to children. For children, the occupier is entitled to assume that parents don’t let children wonder around dangerous places. See Swain v Puri. Also Fibs and Rochester. Entitled to assume that a responsible parent would not have left the child to run around. This is his defence. Under the 84 act, in order to establish whether a duty is owed, you have to establish (a), (b) and (c): For (a) he is obviously aware of the danger, because he wants to perform ‘essential safety work’. For (b) what the courts have said is that there must be facts upon which the occupier should have drawn an inference that there would have been a possibility of danger. This was widely

reported in the press so likely that there could be people to come onto this land. SO in terms of b, there was reasonable grounds to believe/or not/ that people would come on to his land. Jones informs the public that he will let the public enter when, and only when, he has done some essential safety work. Hence, he has already warned people of the risks present in the caves. In terms of (c), the risk was one which required him to protect them against. The danger here could be hidden. Danger underground, so not obvious. As in Tomlinson v Conggleton BC, Jones seeks the funding possible to first make the caves secure before he can grant access to it. The issue is whether or not Jones can be held responsible for the injuries both of Albert and Tim. To establish this, we already need to establish whether or not Jones is an occupier of the premises. This doesn’t seem to be a problem as the caves are on his land, and he is taking it upon himself to make them safe. The cave would constitute a premises under section 1(3)(a) of the OLA 1957. Hence the only remaining question is whether or not he owes a DOC of care to Albert and Tim; and if so, what standard will he be held to? We know that neither of the kids are visitors on the land given that Jones has already restricted the access to the premises. We also know that Jones erects a sign that warns potential trespassers of the danger, he is under no obligation to give them a safe way out, only to inform them of the danger. It seems as though he has taken sufficient precautions to stop trespassers from entering into the caves (fence, sign etc). Under section 4(a) of the 1984 Act, the warning will absolve the occupier of liability if it allows the trespasser to be reasonably safe. It seems as though this is what the sign does. The issue that arises is whether or not the children are old enough to be responsible for their own actions. It would seem fair to say that the two young children weren’t responsible enough to realise the risks. However, the same cannot be said for Tom. He is legally an adult.

Tutorial notes: What is the danger posed by a state of the premises? Section 1(1) and 1(1)(a) are exactly the same basically. See Ratcliffe v McConnell – similar to Tomlinson: case about a pool in university premises. Shallow end, no diving. Couldn’t see it because it was dark. They climbed over a fence, broke into the pool. 19-year-old dives into the pool and breaks his neck, sues the university. Establish whether or not they are they a visitor or a non-visitor? The nature of the duty owed under the 84 Act is less than the 57 Act. In 57, duty to ensure that the visitor is reasonably safe for the purpose for which he was invited. Whereas in the 84 Act – it doesn’t imply a duty on the occupier to ensure that the visitor is reasonably safe/ it only requires that the premises be reasonably safe – not the safety of the premises. So far as trespassers are concerned, statutory duty to ensure that the visitor is protected from the state of the premises. Three conditions s.1(3)(a)(b)(c): (a) he is aware of the danger or has reasonable grounds to believe that 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 (in either case, whether the other has lawful authority for being in that vicinity or not); 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. If one of these things are not satisfied, the claim will fail. See Jolley v Sutton: it was the sort of thing that incite young men to play with. The council should have expected....