2B - Occupiers Liability: 1984 Act

Question 1

Who does Occupier’s Liability 1984 relate to?

Answer 1

trespassers

Question 2

Background to the 1984 Act

Answer 2

It was introduced to provide a limited duty of care towards trespassers. The common law treatment of trespassers was very harsh
Eg. Addie v Dumbreck: children frequently played on colliery premises near dangerous machinery. When one was injured, there was no liability as he was a trespasser
BRB v Herrington: HOL using the practice statement 1966 changed the law and established a ‘common duty of humanity’ after a 6-year-old was burnt after straying onto electrified tracks through a gap in a vandalised fence
This was to take account of the increasing number of dangerous premises and the issues with making children, in particular, aware of the danger

Question 3

Step 1. Who is an occupier: What did Harris v Birkenhead show in relation to who is an occupier?

Answer 3

The D was in occupation as they were effectively in control of the premises

Question 4

Step 1. Who is an occupier: What did Wheat v Lacon show in relation to who is an occupier?

Answer 4

HOL decided both the manager and employers could be occupiers so there could be more than one occupier of the premises

Question 5

Step 2. Who is a visitor?

Answer 5

Someone with:

1. express or implied permission, eg. invitees, licensees
2. statutory/legal rights of entry, eg. emergency services, utility workers
3. permission due to contract, eg. cinema-goers with a ticket, guests at a hotel

Question 6

Step 2. Who is a visitor: What did Lowery v Walker show in relation to implied permission?

Answer 6

Whilst the C didnt have express permission, a licence was implied through repeated trespass. When a member of the public used a shortcut for many years, despite the occupier objecting to it. However, he took no legal steps to prevent it

Question 7

Step 2. Who is a visitor: What did Scrutton LJ say in The Calgarth?

Answer 7

‘When you invite a person into your house to use the staircase, you did not invite him to slide down the bannisters, you invite him to use the staircase in the ordinary way in which it is used’

Question 8

Step 2. Who is a visitor: a visitor who exceeded their permission?

Answer 8

Visitors who exceeded their permission under Occupiers Liability Act 1957 become trespassers

Question 9

Step 3. What is the definition of premises?

Answer 9

There is no statutory definition of premises except in s.1(3)(a) which refers to ‘premises’ as ‘fixed or moveable structure including any vessel, vehicle, and aircraft’

Question 10

Step 3. What common law cases have added lifts and ladders to the definition of premises?

Answer 10

Haseldine v Daw: a lift is included as premises
Wheelar v Copas: a ladder is included as premises

Question 11

Step 4. The ‘state of the premises’

Answer 11

The occupier’s duty under s.1(1) is in respect of damage caused by the state of the premises

Question 12

Step 4. The ‘state of the premises’: Keown v Coventry HCT

Answer 12

If a person opted to climb the external fire escape improperly, thus creating the danger themselves, the health trust could not be liable

Children may be considered less able to realise risks but in this case, the boy admitted he knew of the risk and knew he should not do what he did so it could not be said he did not recognise the danger

Question 13

Step 5: When does a duty arise

Answer 13

The conditions s.1 (3) (a)-(c)

Question 14

Step 5: When does a duty arise: s.1 (3)(a)

Answer 14

The occupier is aware of the danger or has reasonable grounds to believe it exists. This is a subjective test and is based on what the occupier knew

Rhind v Astbury Water Park: the occupier could not know of the dangerous objects therefore no duty was owed

Question 15

Step 5: When does a duty arise: s.1 (3)(b)

Answer 15

The occupier knows or has reasonable grounds to believe that the other (the trespasser) is in the vicinity of the danger. This is a subjective test and is based on what the occupier knew

The court held that the phrase ‘reasonable ground to believe’ meant it was necessary to show that the D’s has actual knowledge of relevant facts which provided grounds for such a belief, it did not mean ‘ought to have known’

Swain v Natui Ram Puri: there was no knowledge of the trespasser or reason to believe there may be therefore s.1 (3)(b) is not met (more important case)

Scott v Associated British Ports

Question 16

Step 5: When does a duty arise: s.1 (3)(c)

Answer 16

then they may reasonably be expected to offer the other some protection

This is a mixture of subjective and objective tests. All the circumstances of the case could include:

• the purpose of the entry
• the age and capabilities of the trespasser
• the financial resources of the occupier
• the time of day and year when the accident happened (Donoghue v Folkestone Properties)
• the nature of the premises and what precautions were practical

Tomlinson v Congleton: No risk arose from the state of the premises as required under s.1(1)(a) Occupiers Liability Act 1984. The risk arose from the claimant’s own action. He was a person of full capacity who voluntarily and without pressure or inducement engaged in an activity that had an inherent risk

^^^ HOL: there is no duty to safeguard as the dangers were perfectly obvious

Question 17

Step 6: what is the duty and has it been discharged or breached: where is it found?

Answer 17

Occupier’s Liability 1984 s.1 (4)

Question 18

Step 6: what is the duty and has it been discharged or breached: what does s.1 (4) say

Answer 18

‘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’

Question 19

Step 7: it is necessary to decide whether the occupier has discharged the duty or breached it

Answer 19

Under s.1 (5) the duty may be discharged by taking reasonable steps to give a warning or to discourage people from taking the risk

A warning should be clear, however, a child may not understand the warning depending on his age (Westwood v Post Office: the notice was enough to discharge the D’s duty)

Question 20

Step 8: Breach

Answer 20

The occupier must reach the standard of a reasonable occupier (Blyth). When deciding this the court will look at the usual risk factors, and others:

• the likelihood of someone trespassing (the court would also consider the attractiveness of the danger - it was an allurement, and the likely age of any trespassers)
• seriousness of potential injury
• cost and practicality of taking precautions
• obviousness of the danger (Platt v Liverpool: no breach as the council has taken all reasonable steps by boarding up all the windows and doors and building an 8-foot fence around the property)

Question 21

Step 9: Defences: Contributory Negligence

Answer 21

Under the Law Reform (Contributory Negligence) Act 1945 the claimant’s damages can be reduced according to the C’s responsibility for the damage suffered

Tomlinson v Congleton BC

Question 22

Step 9: Defence: Consent (Volenti)

Answer 22

A D can raise the defence of volenti non fit injuria, which is commonly called the defence of consent and is a complete defence. To succeed in a claim of consent, it must be shown the C fully understood the nature of the risk and accepted the risk

Ratcliff v McConnell: the C was a uni student, dived into an outdoor swimming pool at night into the shallow end that has been partially drained for the winter. He had climbed over the fence to get n and ignored signs prohibiting the use of the pool. C had consented to the risk as he was aware of it and had accepted it. His claim failed

Question 23

Step 10: Remedies

Answer 23

C’s remedy is damages

Occupier is liable for damage including death and personal injury, but not damage to property (s.1 (8))

Question 24

What are the elements that must be proven under Occupier’s Liabilty 1984

Answer 24

1. Who is an occupier
2. Who is a visitor
3. How does s.1(3)(a) define premises
4. The state of the premises
5. When does a duty arise
6. What is the duty and has it been discharged
7. Is is necessary to decide of they’ve discharged the duty
8. Breach
9. Defences
10. Remedies