Occupier's liability Flashcards
Tomlinson v Congleton BC [2004] 1 AC 46
OLA
Held: allowing the appeal, that the lake did not present risks due to the state of the premises or anything done or omitted to be done on the premises, pursuant to s.1(1)(a) of the 1984 Act. Accordingly, there was nothing which gave rise to a duty on the part of the local authority. Even if swimming had not been prohibited and the local authority had owed a duty under s.2(2) of the 1957 Act, it would not have been required to take steps to prevent T from diving or to warn him against dangers which were obvious. T was a person of full capacity who had voluntarily chosen to engage in an activity which had inherent dangers.
Facts: A local authority appealed against a decision ([2002] EWCA Civ 309, [2003] 2 W.L.R. 1120) that, as the owner and occupier of a country park, it had owed a duty of care to T pursuant to the[Occupiers’ Liability Act 1984 s.1and was liable for serious personal injuries that T had sustained when he dived into the shallow water at the edge of a lake and struck his head on the bottom.
Swimming in the lake was prohibited and the local authority had erected notices and distributed leaflets warning of the dangers of swimming in the lake. It was accepted that the relevant statutory duty was that owed to a trespasser under the 1984 Act and not the duty owed to a lawful visitor under the[Occupiers’ Liability Act 1957 s.2(2) because, by virtue of the prohibition on swimming, when T had entered the water to swim he had become a trespasser. T argued that the local authority had owed him a duty under s.1(4) of the 1984 Act to take such care as was reasonable in all the circumstances to ensure that he did not suffer injury on the premises by reason of the danger concerned. Further, that that duty had not been discharged by the erection of notices because people had ignored those notices which meant that they were obviously ineffectual.
Cavalier v Pope [1906] AC 428
pre OLA case - ??
the landlord knew that the premises were dilapidated when he let them and had covenanted with his tenant to repair them, but had failed to do so. However, when the tenant’s wife suffered injury by reason of the state of the premises, of which she too was aware, her claim against the landlord failed because she was a stranger to the contract.
Wheat v Lacon and Co Ltd [1966] AC 552
OLA - occupier
Per Denning, M.R.: “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 coming lawfully there, then he is an ‘occupier’ and the person coming lawfully there is his’visitor’; and the ‘occupier’ is under a duty to his ‘visitor’ to use reasonable care.”
Held: D were occupiers either because D can occupied through its employees (majority), or, per Denning (minority), through control of the premises despite no physical occupation – especially as hey had the power to enter and repair the building + had not granted a property right.
Reasoning: Both the Richardsons and Lacon were occupiers for the purposes of the Occupiers Liability Act 1957 and therefore both owed the common duty of care. It is possible to have more than one occupier. The question of whether a particular person is an occupier under the Act is whether they have occupational control. Lacon had only granted a license to the Richardsons and had retained the right to repair which gave them a sufficient degree of control. There is no requirement of physical occupation.
NB: on the facts, there was no duty of care
Facts: The manager of a public-house was allowed by the defendants, the owners, to take paying visitors, who were accommodated in part of the premises labelled “Private” of which the manager was licensee. The plaintiff’s husband, while a paying visitor, was killed by a fall from a staircase on the “private” part. The claimant brought an action under the Occupiers Liability Act 1957 against the Brewery company, Lacon, which owned the freehold of The Golfer’s Arms and against the Managers of the Pub, Mr & Mrs Richardson, who occupied the pub as a licensee.
Juj v John Lewis Partnership (2023, CA)
OLA - occupier
= interesting example of the interplay between (i) the degree of an occupiers’ control and (ii) the extent of a defendant’s duties as an occupier.
Held: The Court of Appeal found that the judge at first instance was correct in all respects and in particular, that the defendant was an occupier to the extent of their limited degree of control over the premises, to put them under a duty of care towards visitors to the premises, and that duty extended only to reporting issues to the local authority.
The defendant had no responsibility for the design, construction and layout of the parking bay. Further, the kerb itself was not defective which countered any allegations relating to the repair or maintenance of the premise
The claimant attended the car park with his disabled wife. The claimant’s wife drove their vehicle and she parked the car in a marked disabled parking bay. The accident occurred when the claimant was returning to the vehicle. The claimant stated that, whilst he was putting his shopping away in the boot of the vehicle, he tripped on a kerb, which adjoined the disabled parking bay, and fell. In falling, he hit his head, suffering physical injuries including a traumatic brain injury with long term consequences.
It was the local authority who collected the car park revenue, maintained the car park, and erected the relevant signage. For reasons unknown to the defendant, the claimant did not issue proceedings against the local authority and the case proceeded to a trial solely against the defendant.
The defendant had no licence relating to, or other legal interest in, the car park. The car park was shared with other local users of the high street and was not exclusively for the defendant’s use. The defendant refunded its customers for up to two hours car parking. Its branding was displayed in and around the perimeter of the car park and, from time to time, they would notify the local authority of any problems with the car park including requests for routine maintenance.
It was the claimant’s case that the defendant was an occupier of the car park under the OLA and the defendant had breached its duty of care in numerous respects.
At first instance, the trial judge found that:
The accident was caused by the claimant catching his foot on the face of the kerb.
Although the defendant had sufficient control to be an occupier of the car park, that control was limited to dealing with immediate hazards within it and reporting matters to the local authority. It was not entitled to, nor required to, paint the kerb or prevent the use of any particular bay, including the one in question. Neither was it entitled to nor required to make any long term or structural changes to the car park.
The unique design of the parking bay, including the presence of the kerb immediately to the left of it, did present a danger for the class of visitors using that bay, namely the disabled, in breach of Section 2(2) of the OLA.
The kerb itself was not defective.
However, the claimant was fully aware of the presence of the kerb, and his injury arose from what was, simply, a true accident. There was nothing that the defendant had done, or failed to have done, which caused the injury
Martin v Martin-Baker Engineering (1983)
OLA - occupier - control
Held : occupier has not taken such steps to ensure the independent ontractor’s work was proper as they could have cleaned up, the occupier could not rely upon the statutory escape hatch
Rubbish laying around on construction site, Martin fell over.
Ferguson v Welsh (1987, HL)
OLA - occupier/control
Held: D was not liable. Mr Ferguson was a lawful visitor despite the clause forbidding sub-contracting since Mr Spence would have apparent or ostensible authority to invite him on to the land. However, the danger arose from the unsafe system of work adopted by the Welsh Brothers not the state of the premises. Whilst there was evidence that Mr Spence had sub-contracted demolition work to those executing unsafe practices on previous occasions, there was no evidence that the Council were aware of this.
Facts: District Council (D) contracted Spence for work
Despite an express condition on the tender that subcontracting is not permitted unless the Council gives permission, Spence hired Welsh to do the actual demolition. Ferguson (C), an employee of Welsh was injured due to unsafe demolition work when a wall collapsed on him
C sued D under the Occupier’s Liability Act 1957
Harris v Birkenhead Corporation (1976, CA)
OLA occupier - control
Held:
The Court of Appeal held that the council were occupiers.
Despite not taking possession of the premises, they had the legal right of control. The council was best equipped to try and prevent such incidents.
Facts:
The local council issued a compulsory purchase order on a house.
The order allowed them to take possession two weeks later.
The residents moved out but the premises were not secure.
A child was injured after entering the unsecured house and falling out of an upstairs window.
Shtern v Cummings (2014, UKPC)
OLA - occupier - control
Held: The Privy Council upheld the decision of the Jamaican Court of Appeal. While the second defendant owned the land on which the hotel sat, she had no operational control of the hotel. The company possessed the fridge and the hotel, and had control over the area in question.
This Case is Authority For…
Ownership of land may not be enough to constitute occupation if another person has exclusive operational control over the part of the land where the accident took place.
The claimant was a tourist staying at a Jamaican hotel. She was electrocuted and injured opening a fridge within the hotel. She issued proceedings against three defendants in occupier’s liability.
The first defendant, a company, ran the hotel. The second defendant owned the land on which the hotel sat and was the controlling shareholder and director of the first defendant. She lived on the land, but in a house rather than in the hotel itself. She also bought the fridge in question. The third defendant was the hotel manager, who died before trial.
The Jamaican Court of Appeal held that the first defendant was liable, but that the second defendant could not be liable as she was not the occupier of the hotel.
Pearson v Coleman Bros (1948, CA)
OLA - visitor - 1957 Act
Held: Therefore the court held her to be a lawful visitor and the occupier was liable for her injury.
Principle: Child searching for a toilet still an invitee. Might have been different if you have been wandering out of curiosity or forbidden from entering a room.
A child was attacked by a circus animal when she found her way into the animal enclosure zhile looking for the bathroom. Although she shouldn’t have been in the enclosure there were no signs or notices telling her that she did not have permission to enter.
Geary v J D Wetherspoon (2011, HC):
OLA - Visitor - 1957 Act
C’s claim was rejected.
Principle:
This case is an illustrative application of the defence of voluntary assumption of risk (volenti non fit injuria) to occupier’s liability and the principle laid down in Tomlinson v Congleton BC [2004] 1 AC 46 that no duty is owed for obvious and inherent risks on premises.
No duty is owed to a visitor for using the premises in a dangerous, non-ordinary way.
Facts: C slid down the banister of a staircase and fell four meters, suffering severe injuries. C claimed for her injuries under the OLA 1957.
Kolasa v Ealing Hospital NHS Trust (2015, HC)
OLA - Visitor - 1957 Act
‘…although when the Claimant was brought to the hospital and was put to wait in A&E he was a visitor to the hospital and was owed the common duty of care under section 2(2) of the 1957 Act, his act of climbing over the wall was not an act covered by his general permission to be on the site as a patient nor was it part of the permission given by the Defendant to patients leaving the site after, or even without, treatment. He was, therefore, no longer an invitee or visitor but a trespasser.’
The Court concluded that the Claimant willingly left the hospital and walked outside, where he deliberately climbed over the wall and dropped to the ground. As such, it was held that he was not a lawful visitor at the time of the accident. The court went on to conclude that the Trust did not breach its duty under the 1957 Act and climbing over the wall was not an action covered by the general permission to be on site as a patient. He had therefore become a trespasser and the duties set out in the 1984 Act applied.
The Court founds that the perimeter wall and its drop did not represent an inherent danger; the area was well lit and the danger of the drop was obvious by day or night. As such, no warning signs were necessary. The retaining wall was of sufficient height, it was not in a defective state and did not need guarding. A handrail had been installed on top of the wall but this was to prevent people from sitting upon it, as it was near to a coffee shop. It was the activity of sitting on the wall that was unsafe, not the wall itself.
Although he was drunk, the Claimant had willingly accepted the risk of climbing over the wall and no duty was owed to him by the Trust. The accident was entirely his fault and the claim was dismissed.
The facts of the case are that the Claimant was intoxicated when he was brought into A&E. He discharged himself and sustained his injuries after he climbed over a wall outside the hospital and fell 30 feet to the ground. He brought a claim against the Defendant Trust under either the Occupier’s Liability Act 1957 as a lawful visitor or, in the alternative, the Occupier’s Liability Act 1984 if the Court concluded that he was a trespasser.
compare with Kolosa
Spearman v Royal Utd Bath NHS Trust (2017, HC)
OLA - Visitor - 1957 Act
Reasoning: The judge made some interesting observations on the key points:
- Visitor or trespasser — the claimant did not become a trespasser (so as to take him outside the scope of the Act) at the point he left the A & E department through the door. The door had no lock or warning sign and the claimant’s confused state of mind was relevant since it meant his actions were an honest mistake.
- Negligence — the “occupancy duties under the Act” (and relating to the state of the premises) were concurrent with other duties relevant to “the overall operation of the enterprise” which included the safe management of patients by restricting access to certain areas.
- Contributory negligence — the key issue here was the claimant’s decision to climb over the barrier. No reduction was made on the basis that to do so would be to penalise the claimant for being of a state of mind that did not allow him to appreciate the danger.
Quote: ‘A person’s state of mind and intention is an important additional factor. If a patient, who is a lawful visitor to a hospital (whether the Emergency Department or any other department) has finished his or her treatment and is leaving, he or she does not cease to be a visitor in general until they leave the hospital premises. The position may be different if they deliberately enter an area marked “no entry”, or “private” or know that they are entering a part of the hospital where they have no right to be. But if the patient simply makes a mistake and goes the wrong way, it could not possibly be suggested that such a person was now a trespasser. So here, intending to leave the Emergency Department, Mr Spearman, in his confused state of mind, thought (wrongly but honestly) that he needed to go upstairs to get out and, indeed, go over the barrier to get out. His belief meant that he remained a lawful visitor….’
Held: The defendant hospital was held liable for the claimant’s fall from a roof that he had accessed after walking out of the A & E department shortly after his arrival by ambulance.
The hospital was held to be negligent and in breach of the Occupiers’ Liability Act 1957 (“the Act”). This was largely on the basis that the doors providing access to the staircase and the roof were unsecured such that the premises were not reasonably safe for confused and vulnerable patients. The judge rejected the suggestion that the claimant had attempted suicide; rather, he held that in a confused state, the claimant was determined to leave the hospital (a setting he strongly disliked).
Fact: The claimant, aged 46, was diabetic and also had an acquired brain injury. From time to time he suffered hypoglycaemic attacks which would make him confused. After one such attack on 5 May 2011, he was taken to hospital by ambulance. Shortly after arriving, and in a fleeting moment when the nurse went to collect the appropriate forms, the claimant walked away. He passed through a number of doors and accessed a flat roof via stairwells. He then used furniture on the roof to climb over the 1.4m high barrier fencing and either jumped or fell, suffering serious injuries.
Snook v Manion (1982, DC)
OLA - visitor - revocation of permission
The occupier can revoke a visitor’s permission whilst the visitor is on the premises. However, in Snook v Mannion (1982) (HC) telling a police officer to ‘f**k off’ whilst being pursued up a private driveway was not sufficient to revoke the implied permission given to visitors approaching a house on legitimate business.
Edwards v London Borough of Sutton
OLA - visitor - occupancy or activity
The Court of Appeal, through Lord Justice McComb’s lead judgment found that the first instance judge had misdirected himself, with a failure in the original decision to recognise that under the 1957 Act it is necessary to first identify the relevant danger (if any) before being in a position to be able to do something about it. The Court noted that ornamental bridges are a common feature of many public gardens and are regularly traversed without difficulty. Whilst it was in theory possible for the low parapets of the wall to constitute a ‘danger’, this did not trigger a duty to take further steps (whether by installing railings or warning signs) for two reasons:
- The seriousness of the accident which had befallen the claimant could not be equated with there being a serious risk of it occurring in the first place – there had been no previous accidents of any kind and any risk, if it existed, was remote. The risk of injury could be regarded as minimal rather than serious;
- There was no duty to warn of obvious risks (in line with Staples v West Dorset [1995]) – the approach to the bridge was clear, and its width and the height of the parapets were obvious.
Facts: The claimant was pushing a bicycle over a small ornamental footbridge in a park owned and occupied by the London Borough of Sutton. The bridge was humped and had low parapet side. It was an old bridge and there had been no previous accidents. The claimant lost his balance and fell over the edge into the water below. 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. Whilst there was no obligation on the defendant to update the bridge by installing new handrails (in circumstances where there had been no such obligations, standards, or requirements at the time the bridge was constructed) the judge held that there was a foreseeable risk of injury and therefore considered that there was an obligation to warn visitors as to the risks of the low parapets and/or to instruct them to take a different route through the park. Mr Edwards was however found contributorily negligent to the extent of 40%
Brown v South West Lakes Trust (2022, CA)
OLA - 1984
The fact that a car involuntarily left the road did not mean that the state of the premises created the relevant risk. It may be on my land but it is your behaviour that created.
Cunningham v Reading FC (1991, HC)
OLA - occupancy vs activity
Rogue Bristol City fans on the rampage was occupancy
Cook v Swansea City Council (2017, CA)
OLA - 1957 - duty of care
Reasoning: Balancing exercise:
- likelihood of injury- The risk of ice in cold weather was an obvious danger and people could be reasonably expected to watch out for it and take care. The car park did not pose a particular risk compared to any of the other local authority car parks. There had been no previous reports of dangerous ice conditions at the car park nor any previous accidents due to ice (para.35).
- seriousness of injury that might occur- Injury due to slipping could be trivial or serious (para.35).
- social value of the activity giving rise to the risk- The local authority’s car parks provided 24-hour parking. If unmanned car parks had to be gritted whenever icy conditions were reported, the local authority was likely to have to prohibit the use of all unmanned car parks in periods of adverse weather, to the inconvenience of local residents and visitors (para.35).
- cost of preventative measures- The alternative to closing the car parks would be to man them or arrange regular gritting. Such gritting would have to be by hand and would involve significant use of staff and material resources. That would constitute a disproportionate and costly reaction to the risk and would divert from situations where attention was more urgently required (para.35).
⇒ The assessment provided compelling reasons for upholding the judge’s decision that there was no breach of duty (para.35).
HeldAppeal dismissed.
Did the judge find that there was a breach of duty under s.2(2)?No. Section 2(2) required the local authority to take reasonable care to ensure that visitors would be reasonably safe when using the car park. It was reasonably plain from the judgment that the judge had found that it had not breached that duty. He first asked whether a reactive system was sufficient to discharge the duty, and then made an express finding that the local authority had discharged its duty of care. The judge had gone on to say that the system could have included giving instructions to wardens and cashiers, but he did not state anywhere that it should have been done or that failing to do so involved a breach of duty. The judge had stated that there would “prima facie” be no difficulty in implementing a system requiring wardens and cashiers to report icy conditions, but that was not a final or definitive conclusion on the issue, which had been only partly explored on the evidence
If so, was the judge wrong to find that there was no breach of duty?No. There was much force in the local authority’s arguments at trial as to why it would be unreasonable in all the circumstances to impose a duty of care that would effectively require it to grit its unmanned car parks whenever icy conditions were reported.A balancing exercise was to be carried out when considering what amounted to “such care as in all the circumstances of the case is reasonable” in s.2. That exercise involved an assessment of the likelihood that someone might be injured, the seriousness of any injury that might occur, the social value of the activity giving rise to the risk and the cost of preventative measures. There was generally no duty to protect against obvious dangers, Tomlinson v Congleton BC 2003 applied.
The appellant (C) appealed against the dismissal of his claim against the respondent local authority for damages in negligence and/or breach of duty under theOccupiers’ Liability Act 1957 s.2(2). C had slipped and fallen on ice in an unmanned car park that was owned and operated by the local authority. In bad weather, the local authority did not grit unmanned car parks. At trial, the judge found that the local authority operated a reactive system of gritting them upon receiving a report from a member of the public about a dangerous area. He found that the system was appropriate in the context of the case. He rejected C’s argument that the accident would have been prevented if there had been a system in place whereby local authority employees who visited the unmanned car park during the day to collect money from the ticket machines (cashiers) and to check tickets (wardens) reported icy conditions. Also in relation to causation the judge found that there was no evidential burden on the local authority to show that the accident would have happened in any event. C argued that the judge failed to make a clear and explicit finding on breach of duty under s.2(2).
Maguire v Sefton BC (2006, CA
system of inspection - OLA
HELD: warranty given by occupier to take care did not cover independent contractor- entitle council to consider they had fulfilled- DoC per s5 OLA same as ordinary duty per s2
Exercise machines inspected, but malfunctioned- visitor injured
Darby v The National Trust (2001, CA)
OLA 1957 - knowledge of the risk
D is not liable under the OLA 1957. No duty to warn abt obvious risks.
Facts: A man drowned while swimming in a deep and murky pond on D’s property
His wife sued under the Occupiers Liability Act 1957 (OLA 1957) on basis that:
signs stating ‘no swimming’ should have been erected; and
the risk of Weil’s disease (a form of bacterial infection) from entering the pond required warning notices, had they been present her husband would not have swam
Simms v Leigh Rugby Club (1969 HC)
OLA 1957 - knowledge of the risk
Under s2(5) OLA 1957, liability is absolved since C must be taken to have willingly accepted the risk of playing on the field.
Facts: D was the football club occupying the football ground
C was a member of a visiting team
C was tackled into a concrete wall alongside the touchline, breaking his leg.
Rochester Cathedral v Debell (2016, CA)
OLA 1957 - knowledge of the risk
Outcome: Not Liable
Legal principle: The common duty of care in occupiers’ liability extends to requiring occupiers to remove dangers which have materialised, even though the occupier did not cause them. This case involved tripping along a pathway. Tripping, slipping and falling are everyday occurrences on the roads and pavements. No highway authority or occupier of premises like the Cathedral in this case could possibly ensure that the roads or the precincts around a building were maintained in a pristine state.
Cost of prevention clearly relevant: ‘There is no recognition in the judgment that not all foreseeable risks give rise to the duty to take remedial action. The judge had to apply the concept of reasonable foreseeability taking a practical and realistic approach to the kind of dangers which the Cathedral were obliged to remedy. Had he done that, I do not think that he could have reached the decision he did.’ Per Elias LJ
Facts: The claimant and his wife were walking within the precinct of Rochester Cathedral. The claimant passed through a gap between a wall and a bollard and fell over concrete which was raised around one inch above the road surface, following an earlier collision with a car. The claimant suffered a shoulder injury and hernia, his wife had passed through uninjured immediately before.
Pollock v Cahill (2015, HC)
OLA 1957 - standard - vulnerability
Reasoning:
The Judge then had to consider s.2 of the Occupier’s Liability Act 1957, the relevant passage of which is:
(2) 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 by the occupier to be there.
(3) Circumstances relevant for the present purposes include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases:
(a) an occupier must be prepared for children to be less careful than adults; and
(b) an occupier may expect that a person in the exercise of his calling, will appreciate and guard against any specialrisks ordinarily incident to it, so far as the occupier leaves him free to do so.
The Judge concluded that the reference in paragraph 3 to “such a visitor” requires an occupier to have specific regard to any known vulnerability of the particular visitor in question. Here, had the Claimant been fully sighted, the open window would not have made the premises unsafe. It was the fact that he was blind that made them unsafe. It was no defence that the Defendants claimed not to have appreciated the risk of leaving the window open; they ought to have appreciated the risk and kept the window closed, or at least warned the Claimant about it.
Contributory negligence arguments, on the basis that the Claimant ought to have asked the Defendants about the position of the window, and used his bed as a guide to the door, were rejected. The Claimant succeeded on liability in full.
Held: In favour of the claimant.
The duty of care under s2 of the Occupiers’ Liability Act requires occupiers to have regard to any known vulnerability of the visitor. Although the window was not dangerous per se, it did create an obvious risk for a blind man. The Defendants, as occupiers, had underestimated that risk and should have either closed the window or warned the Claimant of its presence and the extent of the drop below.
The Court found that the open window had been a real risk to the Claimant; the occupiers had created that risk; and they ought to have appreciated the risk and taken steps to prevent it, by keeping the window closed or by warning the Claimant about it, with particular reference to the extent of the drop from the window
Facts:
The Claimant fell from an open second floor bedroom window at the home of his friends, the Defendants. He sustained severe head and spinal injuries. Claimant was already totally blind. He had no recollection of the incident. One of the Defendants had left the window open when making up the bedroom.
English Heritage v Taylor (2016, CA)
OLA 1957 - risk of defensive practice
Outcome: Liable.
Legal principle: The sheer drop was an obvious danger and the defendant should have taken reasonable steps to protect visitors to the premises. English Heritage were in breach of their duty by failing to provide an adequate warning sign. Contributory negligence of 50% was applied due to the claimant walking on an informal path.
Facts: The claimant was visiting an English Heritage site; he was walking along a grass slope when he fell off the slope and into a dry moat causing serious injuries. There was no warning sign of the 12ft drop down to the moat.
James v White Lion Hotel (2021, EWCA)
OLA 1957 - If C behaved stupidly doesn’t rule out BoD, if Act is engaged
Holding: in the White Lion case the Court of Appeal drew a distinction between cases where there is no duty to warn of an obvious risk inherent in activities carried out on the Defendant’s land, such as hang gliding, or swimming in or diving into pools, and the duty owed to a particular visitor to a hotel who is in a “home from home” situation. The Court felt that hoteliers should be aware that guests could be off guard and might drink alcohol and/or open windows to smoke.
Facts: On 5 July 2015 the deceased was a guest at the Defendant’s hotel. Whilst sitting on the windowsill in his room and leaning out of the sash window the deceased fell two stories to his death.
The Defendant relied on a line of cases including Tomlinson v Congleton BC, Edwards v Sutton BC and Geary v JD Wetherspoon, where the Court had concluded that the hazards of which the Claimants were complaining were so obvious that no remedial steps by the occupiers needed to be taken.
Glasgow Corporation v Taylor (1922, HL)
OLA 1957 - children
Held: Risk here was not obvious. Liability
Facts: P’s 7 y.o. son dies, having eaten poisonous berries in a public park. Had the risk been obvious, D could have relied on parents not allowing ‘children of tender years’ to be near them.
Phipps v Rochester Corp (1955, HC)
OLA 1957 - children
see also: Marsden v Bourne Leisure Park (2009, CA)
Parents were not at fault where a 2 y.o. drowned in a pond but, nor were D occupiers in breach for failing to make clear there was a path on the map (the risk should have been obvious to parents).
Held: Devlin J rejects the idea that children are bound by a conditional license (‘you have to be accompanied by an adult’) but D was entitled to expect children would be accompanied and consider warnings provided on that basis: No breach.
Facts: **5 y.o. C falls into a trench on D’s land.
Roles v Nathan (1963, CA)
OLA 1957 - special skill
Held: per Denning and Hartman: No breach, this was precisely the sort of risk they should guard against; per Pearson LJ (dissenting) magnitude of the risk put it beyond a sweep’s ordinary scope.
Facts: Two sweeps, despite warning from D about carbon monoxide, return at night to finish their job and suffocate.
Haseldine v Daw (1941, CA)
OLA 1957 - indeopendant contractors
‘Having no technical skill, he cannot rely on his own judgement’ per Lord Scott
Held: The occupiers were not held liable because they had employed engineers who appeared to be competent to undertake the work. They could not be expected to check if the work had been done properly since it was too technical.
C was injured in a lift when the suspension failed – the lifts was recently serviced by a contractor:
Woodward v Mayor of Hasting (1944, CA)
OLA 1957 - independant contractors - question of fact
The Court of Appeal held in favour of the claimant. The governors had sufficient control over the cleaner.
‘…the craft of a chairwoman may have its mysteries but there is no esoteric quality in the nature of the work that the cleaning of a snow-covered step demands’ per DuParcq LJ ⇒ Does not meet the bar
Facts: During the war, a grammar school had to be relocated. The children were accommodated in a church school, and began using the church school’s staff. Due to the negligence of a cleaner employed by the church, a student slipped on an icy step and sustained injuries. He sued the defendants, the grammar school’s board of governors, in negligence.
Gwilliam v West Herts Hospital NHS Trust (2002, CA)
OLA 1957 - independant contractors
Held:
The Hospital owed a duty of care Under the Occupiers’ Liability Act 1957 this duty did extend to checking whether the independent contractor had insurance cover since this would be relevant to whether they were competent.
Woolf MR argued, in orbiter, that here was a duty to have checked but held, that this had in fact been the case here. Sedley LJ dissented strongly.
Facts: The claimant, a 63 year old woman, was injured at a summer fair hosted by West Hertfordshire Hopsital. She was injured whilst using a ‘splat wall’ whereby participants would bounce off a trampette against a wall and become attached to the wall by means of Velcro material. The injury occurred as a result of negligent set up of the equipment. The equipment was provided by a business called ‘Club Entertainments’ who were an independent contractor engaged by the Hospital. Club Entertainment’s public liability insurance had expired four days before the incidence and thus they had no cover for the injury. They agreed to settle her claim for £5,000. Mrs Gwilliam brought an action against the hospital based on their failure to ensure that the entertainment arranged was covered by public liability insurance. She claimed the difference between the £5,000 and what she would have received had they been covered by insurance.
Naylor v Payling
OLA 1957 - independant contractors
Held: No general duty. Maybe a particular duty where D owes a statutory duty to insure themselves? No duty here as the IC was licensed by Council.
Facts: C injured when an IC bouncer threw them out of the club.
Glaister v Appleby in Westmorland Town Council (2009, CA)
AMF International v Magnet Bowling (1968, HC)
OLA 1957 - Independant contractors
Held: In some circumstances where the work is particularly technical, may have to get anotherIC to check the work of the first IC → large building projects.
Duty applies while the work is carried out, not just when the work is finished.
Facts:
D failed to get the protection of 2(4)(b) where they failed to adequately failed to satisfy themselves that the IC had installed temporary flood precautions.
C left special timber on the side in preparation to install the alleys, the timber was damaged in a flood.
Need to check up on what the IC is doing as well.
Donoghue v Folkestone Properties Ltd [2003] QB 1008
OLA 1984
Comments:
Lord Phillips argued that there was a distinction between dangers arising from ‘the state of the premises’ (e.g. the hidden underwater objects) and those arising from specific activities on the land (e.g. swimming). He argued that no duty is owed under occupier’s liability without a danger arising from the state of the premises.
For example, if a swimmer had gotten cramp and drowned rather than hitting a hidden object, Lord Phillips argued that occupiers liability would be irrelevant.
However, this seems to contradict comments made by the House of Lords inTomlinson v Congleton Borough Council[2004] 1 AC 46, decided after this case.
Held: In favour de the defendants. The defendant had no reason to believe that the claimant would come into the vicinity of the danger at night in mid-winter. Section 1(3)(b) was not established.
Principle: To establish s.1(3)(b) of the Occupiers Liability Act 1984, the claimant must show that they were a member of a class of people which the defendant had reason to believe would be in the areaat the relevant time. If it is unlikelyat that timethat anyone is in the area, this criterion is not met. This is so even if people are often in the area at other times.
Facts: The defendant owned and occupied a harbour. He was aware that sometimes people sneaked into the harbour and dived and swam in the water. The defendant also knew that there were hidden objects in the water. Despite this, the defendant did not take any steps to warn people of the danger.
At night, and in the middle of winter, the claimant trespassed on the harbour and dived from a slipway. He suffered serious injuries after he hit a hidden object beneath the water. The claimant sued the defendant for occupiersliability. The defendant argued that he did not owe the claimant a duty of care. This was because he had no reason to believe anyone would be swimming in the harbour at night during winter. Therefore, the requirement under s.1(3)(b) of the Act was not met.
Section 1(3)(b) of the Occupiers Liability Act 1984 states that a duty is only owed to a trespasser if the occupier ‘knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not)’.
Rhind v Astbury Water Park Ltd (2004, CA)
OLA 1984
Outcome: Not Liable
Legal principle: As evidence clearly indicated that the fibre glass was not known of by the defendants, and nor were they expected to regularly undertake underwater inspections, the requirements of s1(3)(a) of the 1984 Act were not satisfied.
Facts: The claimant dived into a shallow mere that was frequently used by the public to fetch a football, despite warning signs. The claimant suffered injuries as a result of hitting a fibre glass container that was at the bottom of the mere. The fibre glass container was not visible from the side of the mere or those inspecting above the water, it only became apparent when an underwater inspection was completed.
Swain v Puri [1996] PIQR P44
OLA 1984
Not liable. An occupier only has ‘reasonable grounds to believe’ the danger exists or that the trespasser may come into the vicinity of the danger if he has ‘actual knowledge’ or wilful blindness to the existence of the relevant facts
Plaintiff climbed a high fence to trespass onto Defendant’s land, climbed onto Defendant’s roof and, because the roof was dangerous, fell through and was injured. Defendant did not know that Plaintiff was or might come onto the roof.
Keown vCoventry Healthcare NHS Trust (2006, CA)
“If it had to offer protection from the risk of falling from a normal fire escape, it would presumably have to offer the same protection from falling from drain pipes, balconies, roofs […], windows and even trees in the grounds. This seems to me to be going too far. I say this for two reasons. First, the resources of a National Health Service trust are much more sensibly utilised in the treatment and care of patients together with the proper remuneration of nurses and doctors rather than catering for the contingency (one hopes infrequent) that children will climb where they know they should not go. Secondly, if the courts say that such protection should be afforded, it will not just be a matter of putting a fence round a fire-escape or hiring an extra security guard. It is more likely that what will happen will be what in due course the judge found, at para 25, happened in this case. The trust has now built a perimeter fence round the entire site; there is only one entrance; anyone coming in is asked their business; children are turned away.” per Longmore LJ
Held: C’s claim failed
D did not owe him a duty under OLA 1984
- Whether a danger is attributable to the state of the premises or to the activity carried out by C is ‘a question of fact and degree’ that depends on whether C has the capacity to perceive the danger: [14]
- Premises which are not dangerous from the point of view of an adult can be dangerous for a child, but it would not be right to ignore a child’s choice to indulge in a dangerous activity in every case merely because he was a child
C, a 11-year-old trespasser fell while playing on a fire escape
C sued for compensation under the Occupiers’ Liability Act 1984, claiming that the occupier of the building (D) owed him a duty to take reasonable steps to protect him against the danger involved in climbing the fire escape
Platt v Liverpool City Council (1997, CA)
OLA 1984 - children
Held: Kennedy J: At the time the boys entered the dangerous property, it was surrounded by an 8 ft fence which could only be overcome by climbing over or wriggling under it through an 8-inch gap. No evidence on previous occasions that any child has done those things.
City Council providing such a fence did take such care as is reasonable in the circumstances to see that no one would suffer injury on the premises by reason of the weakness of the building.
Claimant children were killed or injured when the abandoned house they were playing in
collapsed.
Westwood v Post Office
OLA - warning
May also trigger the defence of volenti: *Ratcliff v McConnell.
Held: On appeal by the plaintiffs to the House of Lords, held, allowing the appeal (Lord Wilberforce dubitante)
(1) that the principal use of the building was for office purposes as defined in s.1(2)(b) and so the whole of it including the lift motor room was within the Act;
(2) that the fact that W had gone there for his own purposes unconnected with his duties did not deprive him of the protection of the Act, because it is generally unnecessary to show in relation to breach of statutory duty that an employee was injured in the course of his employment, so the plaintiffs were entitled to recover; and
(3) (Lords Wilberforce and Simon of Glaisdale dissenting) that the wording of the notice had not suggested that there was any danger in the room and the fact that a man was a trespasser had no bearing upon whether he might reasonably foresee harm to himself; that W had been disobedient but not negligent, and so in relation to the Post Office’s breach of statutory duty had not been guilty of contributory negligence
Principle: draw a distinction between notices which merely delimit the scope of an entrant’s permission to be on the premises, and those which affirm the existence of a danger and warn of it.
Facts: The claimant, an employee, accessed an unlocked room labeled with a notice restricting access to authorized personnel. Upon entering, the claimant was injured by equipment in the room. The claimant argued that the Post Office was negligent in ensuring safety.
Issue: Did the Post Office owe a duty of care to the claimant, and was the warning notice sufficient to discharge this duty?
In Ratcliff v McConnell [1999] 1 WLR 670
OLA 1984 - volenti - warning
a warning at the shallow end of a pool stating ‘Deep end shallow dive’ was one factor that led the Court of Appeal to reject a trespasser’s claim for damages for injury caused by diving in at the shallow end ofthe pool.
