C4: Occupiers' Liability Flashcards
What are the two types of OLA acts which govern Occupiers’ Liability?
Occupiers’ Liability Act 1957 (Visitors)
Occupiers’ Liability Act 1984 (Trespassers)
What kind of premises does occupiers’ liability apply to?
Defective premises.
In Occupiers’ Liability, is the duty of care imposed by common law or statute?
It is imposed by statute.
Can Occupiers’ Liability run alongside any other liability regimes?
Yes, notably employers’ liability.
Would Occupiers’ Liability be used with the activity of the business at the premises?
No, this area of liability is only concerned with the defendant’s premises and not the activity of the business. If the claimant is injured on the defendant’s premises by the defendant’s activity, the claim is more likely to be argued as common law negligence and not under the occupiers’ liability legislation.
What does OLA 1957 cover?
OLA 1957 covers personal injuries suffered by a visitor and damage to property. This includes property of persons who are not themselves visitors (s1(3)(b)).
What is an occupier?
“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 lawfully there.”
What must a person be in order to be liable under OLA 1957 or OLA 1984?
An ‘occupier’.
What is the leading case on defining an ‘occupier’ (pub staircase)?
Wheat v Lacon [1966]. The defendants were owners of a public house run by a manager who had a licence (permission) to live on the first floor and take in paying guests for his own profit. A paying guest was killed when he fell down an unlit staircase with a defective handrail. The test for occupation was held to be:
“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 lawfully there.”
Control is a question of fact rather than law. As the defendants had not divested themselves of control of any part of the building, they were still occupiers. Both they and the manager were occupiers of the structure or part of it, but the content of the duty required of each might be different. On these facts the defendant owners were not expected to check the lighting of the staircase daily and they were not in breach of their duty of care.
Does an occupier need to be in actual physical occupation of premises for them to have a sufficient degree of control?
No, Harris v Birkenhead Corporation [1976] established that an occupier does not have to be in actual physical occupation of premises for them to have a sufficient degree of control.
What is the meaning of ‘premises’?
OLA 1957 applies not only to land and buildings but also to fixed and movable structures, including any vessel, vehicle or aircraft (s1(3)(a)). It has therefore been held to apply to a digging machine used to construct a tunnel (Bunker v Charles Brand [1969]) and could apply to scaffolding. It was also held to apply to a derelict boat left on a council estate (Jolley v Sutton London Borough Council [2000]).
What is the duty that an occupier owes to a visitor?
OLA 1957 provides that the duty in question is a duty of care. More specifically, s2(2) OLA 1957 provides that the occupier owes the following “common duty of care” to all lawful visitors: “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 is invited or permitted to be there.”
Who is a visitor?
The category of lawful visitors includes two previous common law categories:
- licencees (i.e. persons who had an explicit or implicit licence to be in the premises) and
- invitees (i.e. persons whom the occupier had invited into the premises).
It also includes those who have a contract to enter, where there is no express contractual duty of care (s5(1)).
Should contractual and non-contractual visitors have the same expectation of reasonable care for their safety while using the premises for the permitted purposes?
Yes, the situation would only differ if the contract showed that a different standard of care was owed. (See Maguire v Sefton Metropolitan Borough Council [2006], leisure centre injury)
Does a door-to-door salesperson have permission to be on someone’s property? What about firemen or policemen?
Persons who enter the premises under a right conferred by law are treated as visitors whether or not they have the occupier’s permission to enter (s2(6)). This would include firemen in an emergency and policemen with a search warrant. This group of people enter irrespective of the occupier’s wishes on the matter.
If someone has permission/licence to enter the property, would they be covered to go to other parts of the building that they aren’t given permission to go to?
No. The duty is owed only in respect of those parts of the building which the visitor is permitted to enter and for the purposes of the visit. If they go beyond their permission, they will become a trespasser.
Anderson v Coutts [1894] the owner of land had erected railings near to the edge of a cliff and had also placed a notice warning of the danger of going near to the edge of the cliff. Despite such warnings a man fell over the edge. By entering the restricted area he had been warned not to enter, he had become a trespasser, and no action lay against the defendant for not fencing the cliff itself.
What is the standard of care for occupiers’ liability?
The factors applicable to the standard of care are the same as in other cases of negligence.
‘To take sure care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe - s2(2) OLA 1957.
If there is more than one occupier, it may be that the care required of each of them is different, by reference to the degree and area of control which they have. E.g. Wheat v Lacon (manager/landowner) and Laverton v Kiapisha [2002], The claimant slipped on the wet tiled floor just inside the defendant’s takeaway food shop. The majority held that the defendant had done what was reasonable by using non-slip tiles and providing a mat. It would be unreasonable in their view to expect the floor to be mopped and dried throughout the evening.
What if the occupier is aware of a particular vulnerability of a visitor? (blind)
If an occupier is aware of a particular vulnerability of a visitor then they may be expected to take steps to guard against it and their duty may be higher. In Pollock v Cahill [2015] the claimant, who was blind, suffered serious injuries when falling out of an open window on the second floor. The court held that the defendants were aware of the vulnerability of the claimant and failed to discharge the common duty of care that they owed.
What happens if a danger is obvious? Will the occupier still be liable? (bridge)
Where adults are concerned, the courts will regard certain dangers as obvious to adult visitors.
In Edwards v Sutton London Borough Council [2016] the claimant was pushing his bicycle over a small ornamental bridge in the defendant’s park. The bridge was humped and had a low parapet side. It was a very old bridge and there had been no previous accidents. The claimant lost his balance and fell over the edge into the water below falling onto large rocks. As a result he sustained a serious spinal cord injury. At first instance, the trial judge found that there was a breach of the Occupiers’ Liability Act 1957 (OLA 1957). However, the Court of Appeal allowed the defendant’s appeal holding there was no duty on an occupier to warn an adult of dangers which should be obvious.
Does it help the claimant if the defendant is found guilty in criminal law before their civil trial? (window sash)
In James v White Lion Hotel [2020] - The claimant was a widow who claimed for damages following the death of her husband after he fell from a second-floor window of a hotel. During the trial, it was alleged that the deceased had either been lying on the bed, or sitting on the windowsill, before the accident. The windowsill was 46 cm above floor level. The modern standard minimum sill height is 80 cm. The sash was also faulty and it had to be held open.
The claimant contended that the hotel partnership had breached the duty owed to the deceased under OLA 1957 by failing to take reasonable care for his safety and also under an implied term in the contract governing the provision of the room.
The court found for the claimant on the basis that by pleading guilty to a health and safety offence in the criminal court, the defendants accepted there was a reasonably foreseeable risk of harm to an adult falling due to the low position of the sash windowsill. This fell within the “want of care” as per s2 OLA 1957.
What does OLA 1957 say about children?
S2(3)(a) OLA 1957 provides that an occupier must be prepared for children to be less careful than adults. Therefore, if an occupier admits children to the premises, the child visitor must be reasonably safe.
How are the parents of very young children treated in occupiers’ liability claims?
If the defendant makes sure the premises are safe for a child accompanied by a guardian, then their duty may be discharged.
In Phipps it was stated that “[I]t would not be socially desirable if parents were, as a matter of course, able to shift the burden of looking after their children from their own shoulders to those who happen to have accessible bits of land.”
In some circumstances responsibility for an accident in which a young child is injured may be shared between the occupier of the premises on which the accident occurred and the parents or guardian of the child.
Are teenagers likely to be attracted to interesting parts of the defendant’s premises? Give an example case (boat).
Older minors may be attracted to an interesting part of the defendant’s premises but their behaviour is less predictable than that of a younger child and some accidents involving teenagers may fail the test of reasonable foreseeability (see The “Wagon Mound”).
In Jolley v Sutton London Borough Council [2000] the 14-year-old claimant and his friend had begun work on a wooden boat, abandoned and rotting on an area of amenity land belonging to the local authority. They worked in their spare time at evenings and weekends, using a car jack and wood to shore up the hull of the boat and provide space underneath it. The claimant’s extensive injuries were caused when the boat fell on him. The House of Lords reversed the decision of the Court of Appeal and drew attention to the fact that the ingenuity of children should not be underestimated. Their Lordships preferred the analysis of the trial judge, to the effect that the risk was that of children meddling with the upturned boat and thereby putting themselves at risk of physical injury. A typical form of childish play is to mimic adult behaviour and the accident which actually occurred was reasonably foreseeable.
It should also be noted that the breach of duty lay in the failure of the council to remove the derelict boat from its premises. Given this fact, the specific accident which occurred was as preventable, in terms of precautions which the law could expect the reasonable occupier to take, as preventing the possibility of a child falling through the rotten planking. In such circumstances even relatively small risks should be within the test for remoteness of damage.
What does a ‘common calling’ mean in terms of occupiers’ liability?
A visitor who shares the same occupation (or “calling”), or works in the same field as the occupier, is expected to take more care of their own safety in terms of commonly known risks in that particular field or calling.
In other words, the standard of care expected in relation to such visitors is arguably lower than an “ordinary” visitor.
See Roles v Nathan (chimney sweeps & carbon monoxide) and General Cleaning Contractors v Christmas (window cleaner).
Roles: Two chimney sweeps were killed by carbon monoxide gas whilst attempting to seal a sweep hole in the chimney of a boiler. The occupier was held not liable for the deaths.
General Cleaning Contractors v Christmas [1953] the occupier was held not liable to a window cleaner who was injured when a defective window closed suddenly, trapping the window cleaner’s hand and causing him to fall off the building. The window cleaner was expected to guard against the special risks incident to his calling. The claimant’s employer was in breach of his duty of care to provide a safe system of work for the window cleaners.
Is a ‘common calling’ a defence for occupiers’ liability?
The calling of a visitor is not a defence where the occupier has failed to exercise the required standard of care.
E.g. A firefighter who has exercised reasonable care in an attempt to extinguish a negligently started fire will still be able to recover against the occupier of the premises.
How might an occupier discharge the duty of care to visitors? (2 ways)
By taking appropriate precautions, e.g. making sure premises are not dangerous.
Or they can discharge the duty by warning visitors of danger.
How are warnings limited in OLA 1957?
Whether a warning has this effect depends very much on whether it provides visitors with enough information about the source of the danger and allows them to protect themselves against that danger.
