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Torts Law Semester 2 (yr 1) > Occupier's liability > Flashcards

Occupier's liability Flashcards

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1
Q

What does occupier’s liability act 1957 concern?

A

-liability to lawful visitors and contractual entrants

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2
Q

What does occupier’s liability act 1984 concern

A

-liability to trespassers

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3
Q

Tomlinson v Congleton (2003)

A
  • council owned and managed public park near C with a lake
  • council posted notices that read the water was dangerous but people still swam in it
  • C dived into water, hit his head and was seriously injured
  • Lord Hoffman held the risk C might not execute his dive properly and e injured couldn’t be attributed to the state of the premises
  • lake didn’t have any hidden/unexpected dangers
  • “Mr Tomlinson suffered his injury because he chose to indulge in an activity which had inherent dangers, not because the premises were in a dangerous state”
  • neither the 1957 or 1984 act apply, no DOC under either act to claimant
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4
Q

White lion hotel v James (2021)

A
  • James staying in hotel room while attending wedding
  • opened window to have a smoke J fell
  • CA found there was a danger due to the state of the premises
  • ability to fully open the window was a danger
  • “Lord Hoffman in tomlinson referred to water as being perfectly safe for all normal activities. Here the window was not safe for all normal activities as if opened it presented the risk of a fall”
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5
Q

Occupier duty for risks of third parties on the land (Lear v Hickstead)

A
  • H owned stadium and organized horse shows
  • employee of security company they hired instructed L to park his car and horsebox at a particular place
  • he came back and unknown third parties damaged his ramp
  • tried to lower it and it fell on him/caused injuries
  • H were only liable to him under 1957 as occupier and for negligence
  • judge held H owed common DOC as occupier and this extended to controlling dangerous activities by others
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6
Q

Wheat v Lacon (1966)

A
  • Lacon owned a pub and provided living accomoation to workers
  • W found at bottom of staircase with fractured skull he died from
  • there was an electric light but no bulb at the time of the accident (there was a handrail)
  • his wife brought claim against L in respect of his death alleging negligence and breach of 1957 act
  • court held L was an occupier but there was no breach of duty
  • residential accomodation let to Richardsons who controlled on a liscese
  • both L and R were occupiers of the staircase/accom
  • both owed DOC to lawful visitors
  • L had to see the structure was reasonabl safe (handrail, efficient lighting system)
  • D were responsible for day to day matters such as whether the lights were properly switched on
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7
Q

Test for who is an occupier by Lord Denning in Wheat v Lacon

A

“wherever a person has a sufficient degree of control over a premsies 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”

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8
Q

In a tenancy is the landlord the occupier?

A
  • NO

- The right to control passes entirely to the tenant

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9
Q

Is the owner of a premises always the occupier according to Matthewson v Crump (2000) ?

A

“being the owner of a premises is neither a necessary requirement for occupation, nor sufficient to establish it. A person can be the owner of a property without occupying it and can occupy it without owning it”

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10
Q

Ferguson v Welsh (1987)

A
  • local council undertaking a major project to bring housing on its land
  • council obtained independent contractors to demolish building on site
  • council accpeted that them and the contractors were occupiers
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11
Q

Definition of lawful visitor under 1957 act

A
  • s1(2)
  • any person who at common law would be treated as an invitee or licensee would be treated as a lawful visitor
  • any person permitted to be on the land expressly or impliedly would be a lawful visitor
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12
Q

Robinson v Hallet (1967)

A
  • police seargent was in a private house with the permission of owner’s son
  • owner told him to leave and seargent turned to walk out
  • he was jumped on by owner’s son
  • CA held D acted unlawfull in assaulting a police officer in the execution of his duty
  • officer allowed to be in the house because he had permission from D he could reasonaly regard the on as habing the authority to invite people in
  • seargent was using reasonable time to leave when D jumped on him and so D’s actions were unlawful
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13
Q

What happens when the occupier knows X is using their land, has the opportunity to have done so and does nothing?

A

the court may infer X had implied permission to do so

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14
Q

Cooke v Midland great western railway co of ireland (1909)

A
  • railway company had turntable on its land and knew children played on it
  • company took no steps to lock turntable or to warn children off
  • HL held there was sufficient evidence to conclude there was an implied liscense for the children to play
  • child played on it and his leg was crushed
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15
Q

Edwards v Railway executive (1952)

A

-C was child who got through a fence between recreational ground and D’s railway line–> D was aware children broke through fence to play and regularly took steps to mend the fence
-child went through hole in fence made by other kids and was injured on the line
-he was told not to do so by person in charge of recreational ground
HL held there was no evidence for which implied liscense could be inferred
-where occupier can/has shown reasonable steps taken to keep people out the court is not likely tp infer an implied liscense

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16
Q

Limits of permission in the calgarth (1927)

A

“when you invite a person into your house to use the staircase you do not invite him to slide down the banisters”

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17
Q

What happens where C goes over the limits of their permission given by the occupier?

A

they become a trespasser

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18
Q

Harvey v Plymouth city council (2010)

A
  • H seriously injured by 5 1/2 metre drop off land owned by D
  • youths were in a taxi, didnt have money to pay so they stopped it and ran
  • while running H fell down the drop
  • H claimed council should’ve put fence near the drop
  • CA held D wasn’t liable, there was implied permission for general recreational activity but this didn’t extent to reckless running
  • C was held to be a trespasser
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19
Q

Can the occupier terminate permission?

A

-yes but you must allow for a reasonable ‘packing up time’

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20
Q

section 2(6) OLA 1957

A

“persons who enter the premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose whether they in fact have his permission or not”

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21
Q

Duty of care in s2(1) OLA 1957

A

“an occupier of a premises owes the same duty, “the common duty of care” to all his visitors, except so far as he is free to and does extend, modify or exclude his duty to any visitor by agreement or otherwise”

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22
Q

Duty of care in s2(2) OLA 1957

A

“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 by the occupier to be there” (same as objective standard of care in negligence)

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23
Q

English heritage v taylor (2016)

A
  • C visited castle on isle of wight
  • walked to platform and there was a steep slope that went around the castle
  • there was an informal path and on the other side there was a drop
  • T fell down the drop, seriously injured
  • judge found T must’ve attempted to walk down steep slope and lost footing
  • sheer drop couldn’t be seen from platform and the risk of sliding down slope and down sheer drop wasn’t an obvious danger
  • D should’ve put a warning/notice to the danger then C wouldn’t have tried to walk down slope
  • liability was found for D but there was 50% contributory negligence
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24
Q

How can D escape liabilit for not having an inspection system?

A

-not necessary for D to show they have an inspection system but that if they did it wouldn’t have prevented the accident (tedstone v bourne leisure limited, 2008)

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25
Q

Hall v Halker estate (2008)

A
  • C was injured playing football at park when goal fell on him, seriously injured
  • frame wasn’t pegged down at the time of th accident
  • CA held there should’ve been a regular inspection to check pegs were in place
  • D were aware the frame posed a risk if not pegged down
  • court decided pegs were absent for so long that a system of daily inspection would’ve detected the problem
  • D didn’t have one so there was liability
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26
Q

Liability for risk assessments in advance

A
  • where activities have risk to participants its good practice for occupier to conduct this (assess/identify possible risks and take steps against them)
  • generally a breach of duty to fail to do this entirely
  • occupier will only be liable if it can be showed it would have changed the outcome
27
Q

Wilson v GP Haden (2013)

A
  • where a risk assessment has been conducted, if you don’t follow it it’s good evidence for carelessness
  • Ds operated cross country assault course
  • C (self-described fat taxi driver) fell and was injured on fireman’s pole
  • pole was wet and not demonstrated by instructor (against risk assessment)
  • instructor thought it was obvious how to use pole
  • held to be breach of duty
  • if she demonstrated accident likely wouldn’t have occured
28
Q

Liability for vulnerable visitors

A

where the occupier knows a V.P is coming onto the premises they have to take it into account and take appropriate measures to keep them from harm

29
Q

Pollock v Cahill (2015)

A

Cahills knew they were to be visited by P (blind)

  • D opened window and C got up at nightt o sue the loo (not aware of open window)
  • he went towards it and fell, seriously injured
  • held occupier should’ve taken steps to protect C from this harm
30
Q

Duty of care to children, s2(3a) OLA 1957

A

“an occupier must be prepared for children to be less careful than adults”

-occupiers that know/should know kids come onto their property should ensure its reasonably safe for them

31
Q

Glasgow corp v Taylot (1922)

A

-7 yr old boy dided after eating berries from a bush in a park
-looked like large blackberries and were attractive to young children
-bush inadequately fenced and no warning of dangerous berries
-can’t expect young child to distinguish between good/bad berries
-

32
Q

Phillips v Rochester corp (1955)

A
  • occupier is entitled to expect a child will be properly supervised or advised by their parent/reasonable adult
  • C fell into deep trench and broke his leg
  • council knew kids played on their land but took no steps to protect them
  • C was liscensee and had implied permission
  • council entitled to assume 5 yr old to be protected by an adult, no breach of DOC
33
Q

Simkiss v Rhandda BC (1983) on liability for older children

A

-occupier might to expect them to be accompanied by an adult but can reasonably expect that parents will warn the child of the dangers of the land

34
Q

liability of expert entrance, s2(3b) OLA 1957

A

“an occupier might expect hat a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so”

35
Q

Christmas v General Cleaning contractors (1952)

A
  • occupiier of club held not liable to window cleaner in respect to risks arising from method of cleaning windows she adopted
  • she opened up window and climbed outside to clean it
  • risk of window moving was a recognisable danger but it was for the expert window cleaner to deal with
36
Q

Rule for warnings, s2(4a) OLA 1957

A

-where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning doesn’t absolve the occupier from all liability unless it was enough to enable the visitor to be reasonably safe

37
Q

Rule for warnings reversed in decision of a London graving dock

A

-at common law if there is a warning it is sufficient to discharge occupier from liability

38
Q

Rule for independent contractors s2(4b) OLA 1957

A

-where damage is caused to a visitor by a danger due to faulty work of independent contractor employed by occupier, occupier is not answerable if they acted reasonably in entrusting work to independent contractor and took reasonable steps to ensure contractor was competent and work was properly done

39
Q

decision in Haseldine v Daw, 1941

A
  • occupier of lift held not liable when the lift crashed

- he engaged a competent firm of engineers and lift was regularly serviced

40
Q

conditions that must be fulfilled for occupier to not be liable for faulty work of independent contractor

A
  • must be reaosnable for the occupier to have engaged the contractor
  • occupier took steps to ensure the independent contractor was competent
  • occupier had taken reasonable steps to satisfy himself that work was properly done
41
Q

Bottomley v Todmarden cricket club (2003)

A
  • club engaged two man stunt team to conduct display that went wrong
  • both club and stunt team liable to B who was injured
  • club failed to take reasonable steps in selecting stunt team
  • if they researched they would’ve found the people they hired were inexperienced, ignorant to safety requirements and had no safety plan which reasonably competent contractors would have
  • club held liable
  • greater the danger the greater the care in selecting the contractor
42
Q

Who is a contractual entrant?

A
  • a person who enters land by virtue of a contract

- subject to 1957 act

43
Q

rule for contractual entrants

A

-if the contract spells out terms that govern things done/allowed to be done you follow if but if not you look for an implied term which will be the common duty of care held in Maguire v Sephton (2006)

44
Q

Contract between occupier and third party 1957 act s3(1)

A
  • where you enter land by virtue of contract between third party and occpier the contract cannot restrict/exclude DOC
  • entrant will be a lawful visitor
45
Q

1957 act s2(1)

A

“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 and does extend , restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise”

46
Q

White v Blackmore (1972)

A
  • W was racing dricer and was killed at incident where safety was inadequare
  • he signed as competitor and came in the afternoon, but at the time he came back a notice excluding liability was put up
  • CA majority held when he came back in the afternoon the contract was formed by which time he was informed of the notice and was bound by it
47
Q

Ashdown v Samuel Williams (1957)

A
  • C was a implied liscensee
  • D knew people used his route and had no steps to stop them
  • C was injured by railwy trucks by D’s employees
  • D posted notice that every person on the ladn was there at their own risk
  • found they took reasonable steps to bring conditions to C’s attention
  • didn’t need to prove C read it just that they took the steps
48
Q

Defences

A
  • contributory negligence

- violenti non fit injuria

49
Q

Occupier’s common law duty to trespassers

A

to remain from intentionally or recklessly endangering them

50
Q

OLA 1984

A

-introduced new duty to trespassers and non-visitors and replaced the common law

51
Q

When will an occupier’s duty to a nonvisitor arise? (s1(3))

A
  • if he’s aware of the danger or has reasonable grounds to believe it exists
  • reasonable grounds the nonvisitor is in the vicinity of the danger/may come to the vicinity
  • risk is one which occupier may be reasonably expected to offer protection
52
Q

s1(4) 1984 OLA

A

duty is to take such care that is reasonable to see the nonvisitor doesn’t suffer injury on premises by reason of the danger concerned

53
Q

s1(5) 1984 OLA

A

occupier can discharge duty by giving warning of danger or discouraging person incurring the risk (s1(5)

54
Q

scope of 1984 act

A

only covers death and personal injury not loss/damage to property

55
Q

Swain v Puri (1996)

A
  • nine year old boy trespassed on D’s pemises and fell of roof/was injured
  • CA held D didnt know and had no reason to believe anyone would climb on the roof
  • CA rejected argment that section 1(3) was satisfied simply because D ought to have known someone might come into vicinity of danger
  • either actual knowledge or reasonable grounds were required, it wasn’t on the facts
  • premsies fenced off, no reported trespass before or signs of previous trespass
  • claim failed
  • constructive knowledge based on negligence isn’t enough
56
Q

Defendants who shut their eye to the obvious…

A

will be acting with element of wilfulness and will be regarded as having actual knowledge

57
Q

Young v Kent County council (2005)

A
  • 12 yr old went to youth club held, climbed on flat roof and was injured
  • council was liable under 1984 act
  • J found school knew kids climbed on the roof and it was easy for them to reach
  • state of premises posed a danger to children
  • reasonable grounds to believe kids would come to vicinity of danger
  • trespassing children entitled to some protection
  • school could have easily accessed roof
  • liability established but there was contributory negligence
58
Q

Are the defendant’s resources taken into account? (Goldman v Hargrave)

A

-privvy council held when it came to obligation of occupier with a problem caused naturally (fire), in deciding whether there was a breach of DOC its relevant to consider the nature of resources open to D

59
Q

Can liability be excluded under the 1984 act/

A

-no mention of whether it can be excluded by contractual term/reasonable notice like in the 1957 act

60
Q

In what circumstances can liability possibly be excluded under 1984 act?

A
  • liability for entrants cannot be excluded
  • where a person suffers injury as a result of their own behaviour in response to an obvious natural hazard (Tomlinson v Congleton BC)
61
Q

Exception to the self inflicted harm/obvious risk for liability rule

A

-a duty for occupier to protect exists here where there is no genuine/informed choice (employees) or some lack of capacity to recognise danger (children)

62
Q

Duty of non-occupying contractors

A

-will owe a Donoghue DOC to lawful visitors forseeably at risk for physical harm from their acts/omissions ( Billings v Riden, 1958)

63
Q

What’s the position between non-occupier and the trespasser? (Buckland v Guilford gaslight, 1949)

A
  • the fact the person is a trespasser is between occupier and entrant
  • non-occupier’s liability shouldn’t affected because the entrant trespassed, still owe ordinary negligence

Torts Law Semester 2 (yr 1) (8 decks)

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