8. OCCUPIER'S LIABILITY Flashcards
OCCUPIER’S LIABILITY
The duty an occupier may owe will depend on whether the person who enters onto his land is a VISITOR/NON-VISITOR
- Occupier’s Liability to visitors (Occupiers’ Liability Act 1957 (OLA 1957))
- Occupier’s Liability to non-visitors (OLA 1984)
The status as VISITOR should be considered first, only consider non-visitor if cannot be considered a visitor.
OL TO VISITORS: THE CLAIM (CLAIMANT)
In order to bring a claim under OLA 1957, C must:
- be a VISITOR, AND
- have been present on D’s premises
If C cannot satisfy these REQ, then they will be a non-visitor and OLA 1984 should be considered.
VISITOR: anyone invited or permitted to enter and use the premises (s.1(2) OLA 1957)
- permission may be express or implied.
- EXPRESS permission may be restricted by:
- – area (The Calgarth; Pearson v Coleman)
- – purpose (R v Jones and Smith)
- – time (Stone v Taffe
- IMPLIED permission (Lowery v Walker cf. Harvey v Plymouth CC)
- – usually a right of implied access to the front door of a property.
- – NOTICE can be used to limit or exclude implied permission (Cooke v Midland Great Western Railway of Ireland; Edwards v Railway Executive)
- – 3rd party will have implied permission to access a property if contracted with occupier (s.5(1) OLA 1957)
- – Public/private rights of way constitute implied permission
- – PRIVATE (Holden v White): not covered by OLA 1957
- – PUBLIC (Greenlaugh v BRB; McGeown v NI Housing Executive; Countryside and Rights of Way act 2000)
- Permission may not be required where lawful authority exists (s.2(6) OLA 1957), is such cases the person will be a visitor. EG firemen (Ogwo v Taylor; Salmon v Seafarer Restaurant), a police officer with a warrant (Higgs v Foster).
PREMISES: ‘any fixed or moveable structure, including any vessel, vehicle or aircraft’ (s.1(3)(a) OLA 1957)
- includes ladders (Wheeler v Copas)
OL TO VISITORS: THE CLAIM (DEFENDANT)
the potential D must be the OCCUPIER.
OCCUPIER: Not defined by OLA 1957
- Common law has defined it as any person with a “sufficient degree of control” over the premises (Wheat v Lacon). This includes:
- – independent contractors (AMF v Magnet Bowling), although occupier will retain responsibility for their actions (Wheat v Lacon)
- – Multiple occupiers (Collier v Anglian Water Authority; Wheat v Lacon)
- – Absentee occupiers (Harris v Birkenhead Corp)
- – Landlords (Wheat v Lacon), if they grant a LICENCE to occupy, OR, grant a tenancy but retain control over certain parts of the premises, in which case they will be responsible for those parts.
OL TO VISITORS: DUTY
Occupiers owe a duty to their visitors “in respect of dangers due to the STATE OF THE PREMISES or to things done or omitted to be done on them” (s.1(1) OLA 1957)
- owes the duty to all 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) OLA 1957)
- this duty in generally NON-DELEGABLE, except to independent contractors (provided that s.2(4)(b) OLA 1957 req are met.
NB: Occ Liability does NOT cover activities on the land. Dangerous activities takin place on the land would be covered by negligence.
OL TO VISITORS: BREACH - Standard of Care
STANDARD: to take R care in ensuring that “ the visitor will be R safe in using the premises for the purposes for which he is invited or permitted” (s.2(2) OLA 1957; Latimer v AEC)
- Judged OBJ.
- Duty NOT ABSOLUTE, but owed to ALL people so that the level of care required will vary along with the sort of person that enters the premises.
- NO REQ that Occ ‘guarantees’ a visitor’s safety (Laverton v Kiapasha cf. Ward v Tesco Stores), only that they take R steps to ensure safety.
a HIGHER STANDARD of care will be owed to:
- individuals with UNCOMMON CHARACTERISTICS, such as the blind (Haley v London Electricity)
- CHILDREN (s.2(3) OLA 1957)
- – DOCTRINE OF ALLUREMENT: a Occ must recognise the potential for children to stray/be allured, must take adequate steps to account for this risk (Taylor v Glasgow Corp; Jolley v Sutton BC; Simkiss v Rhondda BC).
- – Occ can EXPECT that parents will accompany the child (Phipps v Rochester Corp)
- – HOWEVER, higher standard required where foreseeable that they will be subject to lower level of parental care (Perry v Butlins Holiday World).
PERSONS IN EXERCISE OF THEIR CALLING
- Occ can expect a person doing so will guard against any special risks, so far as Occ leaves them free to do so (s.2(3)(b) OLA 1957; Roles v Nathan cf. Ogwo v Taylor; Salmon v Seafarer)
WARNINGS
- Must be effective enough to enable a visitor to be R safe (s.2(4)(a) OLA 1957.
- A warning’s sufficiency will depend on the danger in concern and the form of the warning.
- – danger can be so high that warnings are insufficient (Roles v Nathan)
- – NO NEED to warn against a risk/danger that is sufficiently obvious (Staples v West Dorset CC)
INDEPENDENT CONTRACTORS
- Where Occ employs ICs, will not be liable if (s.2(4)(b) OLA 1957):
- acted R in hiring them
- checked their competency, includes checking insurance
- ensured that the work is properly done (supervise)
- – level of supervision required depends on nature of the work, particularly its difficulty or complexity (Haseldine v Daw cf. Woodward v MOH).
OL TO VISITORS: BREACH - Breach of S of Care
Whether Occ fallen below required standard will depend on:
- WHY C was on the premises
- NATURE of the risk
- AGE and TYPE of person that C is
- the R and EFFECTIVENESS of any notice/warnings/precautions taken.
OL TO VISITORS: CAUSATION
The STATE OF THE PREMISES must have caused the damage to C (as opposed to something merely happening on the land)
- The court will generally assume that causation has been satisfied if it has been shown that:
- C has suffered loss AND
- D has breached duty to C.
OL TO VISITORS: REMOTENESS
The TYPE of damage the visitor suffers as a result of the state of the premises must be R foreseeable.
- The court will generally assume that remoteness has been satisfied if it has been shown that:
- C has suffered loss AND
- D has breached duty to C.
OL TO VISITORS: DEFENCES
ALL general defences are available
- CONSENT (s.2(5) OLA 1957)
- – D will have a defence if C entered with FULL KNOWLEDGE/AWARENESS of the risk and FREELY ACCEPTED it (Implied consent).
- CONTRIBUTORY NEGLIGENCE (s1(1) CN(LR)A 1945)
- – AGE is a factor in determining the extent of C’s Contrib Neg. So a child almost certainly less than an adult
ILEGALITY
- In theory may be available if C engaging in an illegal act of D’s property. However it is likely that this will make them a NON-VISITOR so their claim will be handled under OLA 1984.
SPECIFIC DEFENCES
- Exclusion Notices: an Occ may attempt to exclude liability for any harm/damage through the use of an exclusion notice displayed at the premises entrance.
- They are free exclude liability “as far as he is free to do so” (s.2(1) OLA 1957)
- – Whether they will do so successfully depends on
- – WHAT they are trying to exclude liability for. An Occ cannot exclude duty owed to 3rd parties by contract (s.3 OLA 1957). Liability for DEATH or PI resulting from NEG can never be excluded (s.2(1) UCTA 1977), they must however be in the course of business for this to apply.
- – the EXTENT to which they are trying to exclude liability. For all damages other than death or PI, the Occ can exclude liability for neg as far as R to do so (s.2(2) and 2.11 UCTA), must be in course of business.
- – Under Doctrine of Common Humanity, Occ never able to exclude a very basic level of care to visitors (BRB v Herrington)
OL TO NON-VISITORS: The CLAIM (CLAIMANT)
in order to bring a claim, C must be a NON-VISITOR who has been on D’s premises.
NON-VISITOR: a person other than a visitor (s.1(1) OLA 1984) who “goes onto the land without invitation, and whose presence is either unknown to the proprietor, or, if known, is practically objected to” (Robert Addie and Sons Ltd v Dumbreck)
- generally, they will be Tpassers but it is not limited to them.
- Will be a non-visitor where:
- – not been granted PERMISSION to enter premises, AND/OR
- – there are multiple occupiers and did not obtain permission form all of them (Ferguson v Welsh)
PREMISES: Same as defined in OLA 1957
OL TO NON-VISITORS: The CLAIM (DEFENDANT)
potential D must be the Occ of the premises.
- not defined in OLA 1984, same def as for OLA 1957.
OL TO NON-VISITORS: DUTY
Occ will only owe a D of C to a non-visitor if (s.1(3) OLA 1984):
- they are aware of the danger/have R grounds to believe that it exists (s.1(3)(a)), SUBJ test.
- They are aware/has R grounds to believe that Tpassers are/may be in the vicinity of the danger (s.1(3)(b)), SUBJ test.
- The risk is one that they can R be expected to protect against in all the circumstances (s.1(3)(c)), OBJ test.
OL TO NON-VISITORS: BREACH
STANDARD OF CARE
STANDARD: to take R care in all the circumstances to ensure that the non-visitor does not suffer injury on the premises by reason of the danger concerned (s.1(4) OLA 1984)
- Standard is lower than that afforded to visitors (Tomlinson v Congleton BC). May be even lower where Tpassing for criminal reasons.
- Where using warnings, they must be R in all circumstances (s.1(5) OLA 1984)
BREACH OF S of CARE
Whether D breached S of C will depend on:
- NATURE of the risk
- WHY C was on property
- AGE and TYPE of person C is (same as for visitors)
- the R/EFFECTIVENESS of any notices/precautions taken
— fencing MAY constitute R precaution against a risk, even where no evidence of previous Tpassing (Swain v Natui Tam Puri cf. Young v Kent CC)
— The extent to which precautions are expected to be taken can depend on their AFFORDABILITY (Young v Kent CC)
— Where warnings are R in all circumstances, they will be sufficient to discharge the duty (s.1(5) OLA 1984; Tomlinson v Congleton BC)
OL TO NON-VISITORS: CAUSATION
the STATE OF THE PREMISES must have caused the damage to C (as opposed to something merely happening on the land)
- The court will generally assume that causation has been satisfied if it has been shown that:
- C has suffered loss AND
- D has breached duty to C.
OL TO NON-VISITORS: REMOTENESS
the TYPE of damage suffered must be R foreseeable
- The court will generally assume that causation has been satisfied if it has been shown that:
- C has suffered loss AND
- D has breached duty to C.
