6- Occupiers' liability

Question 1

Which 2 Acts cover Occupiers’ Liability?

Answer 1

Occupiers Liability Act 1957- created following a Law Reform Committee report
- provides a stat duty on the occupier towards lawful visitors in respect of dangers due to the state of the premises or things done/omitted to be done on the premises.

Occupiers’ Liability Act 1984
- imposes a different duty to visitors without permission (trespassers).

Question 2

Who is classed as an ‘occupier’?

Answer 2

No stat definition for occupier.

They’re the same under both Acts- occupiers of premises who may be, but don’t have to be, the owners/tenants of the premises.

Question 3

Where is the test for deciding whether a person is the occupier of the premises?

Answer 3

Case law:

1. Wheat v E Lacon & Co. Ltd (1966)- Occupier is person in control of the premises. There can be + than 1.
2. Harris v Birkenhead Corporation (1976)- physical occupation isn’t a requirement.
3. Bailey v Armes (1999)- Sometimes courts will find no one is in control of premises, leaving injured visitor with no claim.

Question 4

What is meant by ‘premises’?

Answer 4

No stat definition for ‘premises’ except in s 3 (1) (a) of the 1957 Act: reference to a person having occupation or control of any ‘fixed/moveable structure, including any vessel, vehicle & aircraft’.

Apart from obvious ones, premises have also been held to include:

• ship in dry dock
• vehicle
• lift
• ladder

The Act may not always apply- Revill v Newbery (1996) – it did not apply to single actions, it had to be because of dangerous conditions or conduct that could amount
to dangerous conditions on premises.

Question 5

What does s 2 (1) of the 1957 Act state?

Answer 5

The occupier owes a lawful visitor the ‘common duty of care’.

Question 6

What are the different types of lawful visitor?

Answer 6

1. Adults
2. Children
3. Workmen

Question 7

What are lawful adult visitors?

Answer 7

1. Invitees
2. Licensees
   
   • those with express/implied permission
     to be on the land for a particular period
3. Those with contractual permission
   
   • ex: someone who buys entry ticket to
     event
4. Those with stat right of entry
   
   • such as meter readers & police officers
     exercising a warrant.

Question 8

What does s 2 (2) of the 1957 Act state? KEY CASES included

Answer 8

Adult visitors are owed the ‘common duty of care’, which means occupier doesn’t have to make premises completely safe to visitor, only reasonably safe-
1. Laverton v Kiapasha Takeaway Supreme
(2002)
2. Dean & Chapter of Rochester Cathedral v Debell (2016)

The state of premises must pose a REAL SOURCE OF DANGER before foreseeability of the risk of damage can be found.

Question 9

What happens if the lawful visitor enter an unauthorised area?

Answer 9

They may become a trespasser and lose the protection of the 1957 Act. When this happens the rules of the 1984 Act will apply.

Question 10

Where does the common duty of care not extend? KEY CASE included

Answer 10

To liability for pure accidents. A duty in respect of a specific risk cannot last indefinitely where there could be another cause to the damage- Cole v David-Gilbert, The Royal British Legion & others (2007)

Question 11

What does s 2 (3) of the 1957 Act state?

Answer 11

The occupier ‘must be prepared for children to be less careful than adults…[and as a result]…the premises must be reasonably safe for a child of that age’.

So the standard of care for children is higher than that owed to adults and it’s measured subjectively, according to the age of the child.

Question 12

Which are the key cases on occupiers’ liability to children and what was decided in them?

Answer 12

1. Glasgow Corporation v Taylor (1922)
   
   • occupier should guard against any ‘allurement’ or attraction which places a child visitor at risk of harm.
2. Jolley v London Borough of Sutton (2000)
   
   • D might be liable for negligence when the nature of the risk & the type of injury were reasonably foreseeable, even if the exact manner/extent of the injury was not.
   • HoL commented that children often find ways of putting themselves in danger, and this needs to be taken into account by an occupier when considering how to keep them save.
3. Phipps v Rochester Corporation (1955)
   
   • Where very young children are injured, courts are reluctant to find occupier liable as the child should be under the supervision of a parent/another adult.
   • difficulty: there is no age limit set as to when this rule applies.

Question 13

What duty is owed to tradesmen? (workmen)

Answer 13

Occupier owes a common duty of care to tradesmen coming to the premises

Question 14

What does s 2 (3) (b) of the 1957 Act state? KEY CASE included

Answer 14

A person carrying out a trade/calling on occupier’s premises must prepare for the risks associated with the trade

Roles v Nathan (1963)- Occupier will not be liable where tradesmen fail to guard against any risks they should know about or be expected to know about

Question 15

What does the rule in s 2 (3) (b) of the 1957 Act mean to the occupier?

Answer 15

It acts as a defence. However, it only applies where the tradesman visitor is injured by something related to the trade/calling.

If tradesman is injured by something different the occupier will still owe a common duty of care.

Question 16

What happens when a lawful visitor is injured by an independent contractor’s negligent work? KEY CASES included

Answer 16

Occupier might have a defence and be able to pass the claim to the workman.

This is under s (4) of the 1957 Act- 3 conditions must be satisfied in order for the occupier to have a defence to a claim. C will have to claim against the independent contractor:
1. It must be reasonable for the occupier to have given the work to an indep. contr. (the + specialist the work, the + likely it will be for the occupier to have given it to a specialist)- Haseldine v Daw & Son Ltd (1941)

2. Indep. Contr. hired must be competent to carry out the task. Occupier should check contractor is properly insured. Contractor not having appropriate insurance is an indicator that they’re not competent- Bottomley v Todmorden Cricket Club (2003)
3. Occupier must check work has been properly done (the + technical the work, the + likely this condition will require occupier to employ an expert such as an architect).- Woodward v The Mayor of Hastings (1945)

Question 17

What’s the background of the 1984 Act? KEY CASES included

Answer 17

At common law, occupier owed a trespasser no duty at all, other than not to deliberately/recklessly inflict injury.

This rule harsh particularly to child trespassers (Addie v Dumbreck (1929), 4-year-old killed when he fell through the unprotected cover of a wheel in a property. Parents couldn’t claim compensation bc child was a trespasser.)

Duty of ‘common humanity’ was passed on to occupiers towards trespassers by the HoL, using the Practice Statement 1996- British Rail Board v Herrington (1972)

As a result of Law Commission 1975 report, the 1984 Act was passed by Par & the duty of ‘common humanity’ was replaced by stat duty.

Question 18

What does s 1 (1) (a) of the 1984 Act state?

Answer 18

A duty applies in respect of people other than lawful visitors for ‘injury on the premises by reason of any danger due to the state of the premises or things done/omitted to be done on them’.

Question 19

What does the 1984 Act provide compensation for?

Answer 19

Only personal injury. Damage to property not covered- shows trespassers deserve less protection than lawful visitors.

Question 20

When will the occupier owe a duty under 1 (3) of the 1984 Act?

Answer 20

If:
1. They are aware of the danger/have reasonable grounds to believe it exists

2. They know/have reasonable grounds to believe the other is in the vicinity of the danger or that they may come into vicinity of the danger (whether they have lawful authority to be there or not)
3. The risk is one against which they may be expected to offer the other some protection.

Question 21

What does s 1 (4) of the 1984 Act state?

Answer 21

Where an occupier owes a duty to another in respect of the risks in s 1 (3), ‘the duty is to take such care as is reasonable in the circumstances’ so that T (trespasser) isn’t injured bc of the danger.

Question 22

What is meant by danger in s 1 (3) & (4) of the 1984 Act?

Answer 22

Object/part of land on which T is injured.

Question 23

What is the standard of care for trespassers?

Answer 23

Objective- what is required of the occupier depends on the circumstances of the case.

The + the risk, the + precautions the occupier will have to take.

Factors taken into account include:

 - nature of the premises
 - degree of the danger
 - practicality of taking precautions
 - age of trespasser

Question 24

What is difficult to interpret in cases of Occupiers liability to trespassers?

Answer 24

What amounts to ‘reasonable grounds to believe’ that a danger exists and

‘reasonable grounds to believe’ that a T is, or will come into the vicinity of the danger.

Question 25

What have courts introduced when considering cases involving adult trespassers under the 1984 Act? KEY CASES included

Answer 25

Introduced concept of OBVIOUS DANGERS.

Occupier won’t be liable if T is injured by an obvious danger.

1. They don’t have to warn adult trespassers of risk of injury against obvious dangers- Ratcliff v McConnell (1999)
2. They don’t have to warn T’s against obvious risk if T enters at unforeseeable time of day/year- Donoghue v Folkestone Properties (2003)
3. They don’t have to spend lots of $ in making premises safe from obvious dangers- Tomlinson v Congleton Borough Council (2003)
4. They won’t owe a duty to T if they don’t expect T to enter the premises- Higgs v Foster (2004)
5. They don’t owe a duty for danger they’re unaware of- Rhind v Astbury Water Park (2004)

Question 26

What do courts consider in cases involving child trespassers under the 1984 Act? KEY CASES included

Answer 26

= stat. rules apply to child T’s is the same as for adults.

1. Keown v Coventry Healthcare NHS Trust (2006)
2. Baldaccino v West Wittering (2008)

As with adult T’s, courts support the approach of personal responsibility- this can be due to the ages of children in the cases.

Question 27

What can the remedy claimed be for T’s?

Answer 27

Remedy is damages for personal injury only