Occupier's liability (rev notes) Flashcards
Occupier (def)
= “a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises” (Lord Denning in Wheat v Lacon)
There can be several occupiers
=Lord Denning in Wheat v Lacon
“In order to be an “occupier” it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be occupiers”
Empty premises are not necessarily unoccupied
= Harris v Birkenhead Corporation
Contractors can have enough control over the premises to be considered occupiers
- Dual or shared occupation = Ferguson v Welsh
- contractor w/ sole control, to the exclusion of the owner = Matthewson v Crump (newly purchased house being renovated, O almost never there)
Landlord during tenancy is generally not an occupier
= Cavalier v Pope (1906) : landlord letting dangerous premises not lb for injury to T’s licencees (controvesial HL decision but still followed by HC in Essex CC v Davies (2019))
But L has duties under s4 Defective Premises Act 1972 in relº to dangers he knew or should have known of
Occupiers can be lb for damage to property (doesn’t have to belong to visitor)
OLA 1957, s1(3)(b)
Persons “occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft” are subject to same rules as occupiers
OLA 1957, s1(3)(a)
Premises (def)
“any fixed or movable structure, including any vessel, vehicle or aircraft” (from OLA 1957, s1(3)(a))
=> interpreted as including an inflatable structure in Furmedge v Chester-le-street DC (2011)
Who is a visitor ?
Whoever would have qualified as an invitee or a licensee at CL before the 1957 Act = OLA 1957, s1(2)
=> someone coming lawfully onto an occupier’s premises = Lord Denning in Wheat v Lacon
+ OLA 1957, s2(6) (next card)
OLA 1957, s2(6)
“For the purposes of this section, persons who enter 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.”
V exceeding permission
a person who has permission to be on the premises can cease to be a visitor if they exceed their permission – confirmed by HL in Tomlinson v Congleton
V - execeeding permission - Scrutton LJ in The Calgarth
“when you invite a person into your house to use the staircase, you do not invite them to slide down the banisters”
V - execeeding permission - vulnerable patient
Spearman v Royal United Bath Hospital (2017) : vulnerable & confused patient who ended up on roof to which access was forbidden still a visitor bcs didn’t comprehend that access was not permitted + not enough done to keep him out of danger (he fell)
V - execeeding permission - drunk person
Ovu v London Underground [2021] : deceased was intoxicated when entered non pbc area of underground (clearly indicated that entry forbidden) and fell to his death from fire escape -> not a visitor bcs exceeded permission
V - duty of occupiers = the common duty of care
= “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.” - s2(2) OLA 1957
V - the common duty of care: occupancy rather than activity
= source of damage must be state of the premises, not smth being done on them
=> see:
- s1(1) OLA 1957
- Denning LJ in Dunster v Abbott [1954],
- upheld by CA in Fairchild [2001]
V - the common duty of care: warnings - the statute
s2(4)(a) OLA 1957 : Warning can discharge common duty of care but /!\ warning does not discharge DOC unless it is sufficient to keep the visitor reasonably safe
V - the common duty of care: warnings - not enough if don’t make V safe (cases)
- Roles v Nathan = Lord D’s eg of a rotten bridge : warning is not enough if only way onto premises (but might be if there is another)
- Intruder Detection & Surveillance v Fulton = banisters temporarily removed => no amount of warning could make premises safe
V - the common duty of care: warnings - duty to keep V safe ≠ make premises safe
= make sure that particular claimant is safe
- clearer for children and less for specialist = Roles v Nathan
- no duty to warn of obvious dangers = Thomlinson v Congleton
V - the common duty of care: warnings - taking into account the ‘type’ of visitor
= s2(3) OLA 1957 : ““The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor”
V - the common duty of care: children
OLA 1957 s2(3)(a) : “an occupier must be prepared for children to be less careful than adults”
But see Devlin J in Phipps v Rochester (1955) : if child so young that expected to be supervised by adult, sufficient to take precautions which would ward adult of danger
V - the common duty of care - specialists
S2(3)(b): “an occupier may expect that 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.”
+ Roles v Nathan (next flashcard)
Roles v Nathan (1963)
two chimney sweeps dies bcs inhaled carbon monoxide due to defective boiler, despite having been warned and given appropriate information by occupier
=> occupier not lb bcs had they heeded warnings and been careful, they would have been safe
V - the common duty of care - independent contractors
= OLA 1957 s2(4)(b) : O is not lb without more for danger created by wk of indeed contractor if acted reasonably in employing said contractor + took reasonable steps to make sure contractor was competent and work being properly done
V - Exclusion of LB
S2(1) OLA 1957: Occupier can restrict, modify or exclude his liability “in so far as he is free to do so”
=> O cannot exclude lb for death or PI caused by negligence
- on premises used for business purposes = UCTA 1977
- on premises entered by consumer = CRA 2015
=> O’s attempt to exclude lb must be
- reasonable under UCTA
- ‘fair’ under CRA
Liability to non-visitors (statute)
= OLA 1984
Lb to non-V - to whom is duty owed?
OLA 1984, s1(1)(a) : “persons other than his visitors” => trespassers and ppl w/ private right of way
/!\ no duty owed to “persons using the highway” = s1(7) OLA 1984
NV - a ‘lesser duty’
duty to NV is “a lesser duty, both in incidence and in scope’ = Lord Hoffman in Tomlinson at [13]
NV - when is a duty owed ?
= s1(3) OLA 1984 : O owes a duty only if
- O is aware of or has reasonable grounds to believe the danger exists
- O knows or has reasonable grounds to believe the non visitor is or may come in the vicinity of the danger (lawfully or not)
- the risk is one against which O may reasonably be expected to offer some protection in all the circumstances of the case
NV - ‘reasonable ground to believe’
involves subjective element = knowledge the occupier actually had
- doesn’t matter what O ought to have known, ‘reasonable ground to believe’ ≠ constructive knowledge = Swain v Nati Ram Puri
- Donoghue v Folkestone Properties : C injured by diving off a slipway in the winter – D had knowledge of trespassers in the summer but no reason to suspect their presence in the winter so D not lb
NV - obvious dangers
Obvious dangers: generally no duty owed = Donoghue v Folkestone
NV - standard of care / what is the duty?
s1(4) OLA 1984: Duty = “to take such care as is reasonable in all the circumstances of the case to see that [the non-visitor] does not suffer injury on the premises by reason of the danger concerned”
NV - standard of care - how is the duty discharged ?
s1(5) OLA 1984 : “by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk”
NV - no duty to warn of obvious danger
Tomlinson v Congelton, Ratcliff v McConnell, Darby v National Trust…
NV - financial circumstances of O
might be taken into acc when determining what was reasonable = Ratcliff v McConnell
