Week 6 - Tort Law - Lecture notes 6 PDF

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Week 6 = Occupiers' Liability...

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Week 6 - Occupiers’ Liability The law in relation to the liability of occupiers for their premises is in fact a form of negligence however the rules have been stipulated by parliament. The relevant statutes are: • Occupiers Liability Act 1957 – duty of care towards lawful visitors • Occupiers Liability Act 1984 – provides a limited duty of care towards unlawful visitors. Liability under both Acts relates to a premises being in a dangerous state or being dangerous due to an act or omission of the occupier of the premises. Whilst both Acts define the circumstances of when a duty will be owed and to some extent when the duty can be discharged and/or limited, when determining whether the duty has been breached and whether the breach has caused the claimants loss, the normal principles of negligence will apply. 1. Who is an Occupier? A common factor in both Acts is that the defendant will be an occupier of the premises. Under s.1(2) Occupiers Liability Act 1957 and 1984, liability can arise as ‘a consequence of a person’s occupation or control of a premises’ The term occupier can be misleading, as it is the person who controls the premises, rather than the physical occupier of the premises who is responsible. ‘wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an occupier’ - Wheat v E. Lacon Co. Ltd. [1966] AC 552, per Lord Denning at page 578

There may be more than one occupier of the same premises although the duty required of each may be different. An estate in land is not necessary in order to be an occupier nor is physical possession of premises. The key factor is whether a person exercised a sufficient degree of control. • Harris v Birkenhead Corporation [1976] 1 WLR 279

Typically, a landlord who has leased a property to another will not have retained sufficient control to be considered an occupier of the premises. In such situations, the tenant who suffers harm as a result of a defect in the premises will have no claim under the Occupiers’ Liability Act 1957 as there is no occupier to sue other than themselves. This gap in the law is addressed by section 4 of the Defective Premises Act 1972.

2. What is a ‘premises’? Under s.1(3) Occupiers Liability Act 1957 the definition of a premises extends to ‘any fixed or moveable structure, including any vessel, vehicle or aircraft’. This has been interpreted broadly and clearly extends beyond houses and buildings. Driveways, fire escapes have all been considered premises as well as less permanent structures such as scaffolding and derelict boat left on a council estate – Jolley v Sutton London Borough Council [2000] 1 WLR 1082 3. Occupiers’ Liability to Visitors – Occupiers Liability Act 1957 The Law Commission proposed, prior to the enactment of the Occupiers’ Liability Act 1957, that the complicated law on occupiers’ liability should be simplified. The Occupiers Liability Act 1957 replaces the previous common law. A Claimant may claim for personal injury and damage to property including the property of those persons who aren’t themselves visitors. • S.1(3)(b) Occupiers’ Liability Act 1957 3.1. Who is a Visitor? A duty of care is owed under the 1957 Act by an occupier to those that he has invited or have given permission to enter or use the premises. • s.1(2) Occupiers’ Liability Act 1957 All lawful visitors to premises are included in this term. It includes: • invitees • licensees • those who have a contractual right to enter where there is no express duty of care (s.5(1) Occupiers Liability Act 1957) • a person who enters under a right conferred by law even if they do not have the Occupiers permission to enter the premises (s.2(6) Occupiers Liability Act 1957) e.g. policemen, fireman and employees of public utility companies. Four problems arise when it comes to visitors:

Rights of Way Persons who lawfully exercise a public or private right of way are not treated as visitors and are therefore not covered by the 1957 Act. (People exercising a private right of way may be covered by the 1984 Act). Implied Permission A person who claims that they had implied permission to enter a premises must prove that there was such permission. There is an implied permission for a person to enter a premises and state their business to the Occupier. If the Occupier then requests that they leave, they must be granted a reasonable time in which to do so. This presumption can be rebutted by the occupier putting up a notice specifically excluding certain types of person from the premises. Limitations on Permission The occupier may place limitations on the permission to enter. A person, who is allowed to enter one part of a building and is thus a visitor, may be a trespasser in relation to other parts. • The Calgarth [1927] P 93 per Scrutton LJ.

However, any usage incidental to the permission will be covered under the legislation. Note: Spearman v Royal United Bath Hospitals NHS Foundation Trust [2017] EWHC 3027 (QB) A person who is given permission to enter a premises at a particular time and then enters at a different time will not be a visitor but a trespasser. A person who is given permission to enter a premises for a particular purpose and enters the premises for a different purpose will not be a visitor but a trespasser. • Tomlinson v Congleton Borough Council [2003] 3 WLR 705

It is possible for a person to be a visitor in relation to one occupier and a trespasser in relation to another. • Ferguson v Welsh [1987] 3 All ER 777.

3.2 What is the Duty? The occupier of the premises owns a common duty of care to all lawful visitors to the premises. ‘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 using the premises for the purposes for which he is invited or permitted to be there’ - s.2(2) Occupiers’ Liability Act 1957 Whether the duty has been breached is a question of fact in the circumstances of any given case. The section makes three things clear: It is the visitor and not the premises that must be safe; • Pollock v Cahill [2015] EWHC 2260

The duty extends only to the purpose for which the visitor was allowed entry. • Tomlinson v Congleton Borough Council [2003] 3 All ER 1122

The occupier is not under and obligation to ensure the safety of the visitors, merely to take reasonable care to provide reasonable safety. • Bowen v National Trust [2011] EWHC 1992 Beyond this, the normal principles of negligence will apply. • Kiapasha (t/a Takeaway Supreme) v Laverton [2002] EWCA Civ 1656

The Act (1957) gives specific guidance on the duty of care in respect of certain people: 3.2.1. Children s.2(3)(a) Occupiers’ Liability Act 1957 states that an occupier must be prepared for children to be less careful than adults. If the occupier allows a child to be on his premises, then the premises must be reasonably safe for a child of the visitors’ age. • Glasgow Corp v Taylor [1922] 1 AC 44 Very young children present a problem as there may be a question as to whether the parents should have exercise supervision over them. In some cases, it may come down to apportioning liability between the parents and the occupier.

• Phipps v Rochester Corp [1955] 1 QB 450 You must still consider the issue of foreseeability of risk in this context. • Jolley v Sutton London Borough Council [1998] 3 All ER 559 • Simkiss v Rhondda Borough Council [1983] 81 LGR 460 3.2.2. Persons entering in the exercise of a calling. s.2(3)(b) Occupiers’ Liability Act 1957 states that an occupier may expect that a visitor in the exercise of his calling will appreciate and guard against any special risks which are ordinarily incident to it, so far as the occupier leaves him free to do so. • Roles v Nathan [1963] 1 WLR 1117

The fact that a visitor has a specific skill does not automatically absolve the occupier from liability. Salmon v Seafarer Restaurants [1986] 1 WLR 1264 3.2.3. Independent Contractors s.2(4)(b) Occupiers’ Liability Act 1957 states that where damage is caused by a visitor by a danger due to the faulty execution of any work, construction, maintenance or repair by an independent contractor, the occupier is not to be treated as having breached the duty of care if it is was reasonable to have entrusted the work to him, having satisfied himself that the contractor was competent, and the work was being done properly. It also appears that the occupier is under a duty to check that the contractor was adequately insured. However, an enquiry coupled with an assurance from the contractor seems to be enough to satisfy this requirement – Gwilliam v West Hertfordshire Hospital NHS Trust [2002] 3 WLR 1425 • Haseldine v Daw [1941] 2 KB 343 • Woodward v Mayor of Hastings [1954] KB 174 3.2.4. Warnings s.2(4)(a) Occupiers Liability Act 1957 states that where damage is caused to a visitor by a danger of which he has been warned by an occupier, the warning is not to be treated as

absolving the occupier of liability unless in all the circumstances it was enough to enable the visitor to be reasonably safe. The legal effect of a sufficient warning is to discharge the duty of care which may have been owed by the occupier. A warning is sufficient if it allows the visitor to take reasonable care for their own safety. • Roles v Nathan [1963] 1 WLR 1117 If the danger is obvious then there is no need to give a warning. • Cotton v Derbyshire Dales District Council (1994) Times, 20 June 4. Liability to Trespassers – Occupiers Liability Act 1984 A trespasser is a person who goes onto land without an invitation of any sort and whose presence there is either unknown to the occupier, or if known, is objected to. Historically little protection was afforded to those persons who were trespassers however they are now covered by the Occupiers’ Liability Act 1984. The Occupiers; Liability Act 1984 will apply to all persons who are not visitors, including trespassers and those exercising a private right of way.

The Act applies 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 – s.1(1)(a) Occupiers’ Liability Act 1984. • Keown v Coventry Healthcare NHS Trust [2006] 1 WLR 953

Unlike the 1957 Act, it does not include damage to property. 4.1. When is a duty owed? Unlike with visitors, once the relationship of occupier and trespasser has been established, a duty does not automatically arise. An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) 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 (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.’ s.1(3) Occupiers’ Liability Act 1984 • Tomlinson v Congleton Borough Council [2003] 3 All ER 1122 In order for an occupier to owe a non-visitor a duty of care he must be aware of the danger or have reasonable grounds to believe it exists. Whereas knowledge is a subjective assessment, reasonable grounds to believe is at least partly objective. • Rhind v Astbury Water Park Ltd [2004] All ER 129

The Occupier must also be aware or have reasonable grounds to believe that a non-visitor is in the vicinity of the danger. • Swain v Natui Ram Puri [1996] PIQR 442

This must be at the time at which the claimant was injured. • Donoghue v Folkestone Properties Ltd [2003] 3 All ER 1101

The risk also must be one that the Occupier is reasonably expected to protect against. • Tomlinson v Congleton Borough Council [2003] 3 All ER 1122 4.2 What is the content of the duty? s.1(4) Occupiers’ Liability Act 1984 states that 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(4) Occupiers’ Liability Act 1984 This is the usual objective negligence standard. • Ratcliff v McConnell and Harper Adams College [1997] EWCA Civ 2679

It is important to remember that the duty is only in relation to the risk of injury arising from the dangerous state of premises, or done on them, or omitted to be done on them. 4.3. Warnings s.1(5) Occupiers’ Liability Act 1984 states that: any duty owed by virtue of this section in respect of any risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances to give warning of the danger concerned or to discourage persons from incurring the risk’ - s.1(5) Occupiers’ Liability Act 1984 Unlike the Occupiers Liability Act 1957, the Occupier only needs to take reasonable steps to bring the danger to the attention of the trespasser 5. Defences A defence of volenti non fit injuria is provided for in s.2(5) Occupiers’ Liability Act 1957 and s.1(6) Occupiers’ Liability Act 1984. The defence is covered by the general principles of volenti. Knowledge of the danger does not amount to a defence. The defence of contributory negligence will apply under the act. A visitor who has failed to take reasonable care for their own safety and that failure was a cause of their damage will have their damages reduced. An occupier is able to restrict or exclude their duty of care under the provisions of the Occupiers Liability Act 1957, however it is doubtful whether the ability to do so extends to the Occupiers Liability Act 1984. ‘an occupier of premises 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’ - s.2(1) Occupiers’ Liability Act 1957 There are however some restrictions on this where the premises are occupied for business purposes. Under s.2(1) and 2(2) Unfair Contract Terms Act 1977 such an occupier is unable to restrict liability for death or personal injury. They are able to restrict their liability in the context of other losses, subject to the test of reasonableness....