occupiers liability Flashcards
why do Occupier of premises owe a duty of care and to who?
owes a duty to keep visitors safe whilst on his/her premises.
it is governed by statute: The duty owed to those who enter onto land without permission (trespassers) is defined in the Occupiers’ Liability Act 1984.
who is an Occupier?
test as to who can be considered an occupier is one of control. For example someone who has some degree of control over the premises.
This means that the occupier need not necessarily be the owner of the land or premises but may instead be a tenant or an independent contractor employed to carry out work. Therefore it allows for more than one occupier at the same time.
what is a Premises?
under Section 1(3) of the Occupiers’ Liability Act 1957 it states that the term includes not only land and buildings but also fixed or moveable structures that include vessels, vehicles and aircraft.
what is a trespasser?
A trespasser is someone who enters land or premises without permission. His or her presence must either be unknown to the occupier or, if known about, be objected to.
A person can enter land or premises as a visitor and then become a trespasser. For example, if the occupier told a visitor to remain downstairs, and the visitor then went upstairs, the visitor would be trespassing in that area. (The Calgarth Case)
what are the 2 hurdles a C. must overcome in order for a successful claim under Occupiers’ Liability Act 1984?
- the claim must arise out the state of premises not the dangerous actions of the claimant. Otherwise there can be no liability. Section 1 (1) of the Occupiers’ Liability Act 1984 & Ratcliff v McConnell
- A duty will only be owed by an occupier to a trespasser if the conditions in Section 1 (3) of the Occupiers’ Liability Act 1984 are satisfied.
what 2 railway cases established that occupiers owe a duty to trespassers?
- Herrington: child badly injured when he trespassed onto an electrified railway line. The fence between the field and the line had been trodden down for some time but the defendant had done nothing about it.
HOL held D. liable as common sense and common humanity suggested that if a company were to build something as dangerous as an electric railway line in the vicinity of an area in which children played they should take measures to protect the children - Addie v Dumbreck: View Park Colliery used as a short cut to a railway station and children would use it as a playground would often warn people off the land but the attempts were not effective child was killed when he climbed onto a piece of haulage apparatus.
Held:
No duty of care was owed to trespassers to ensure that they were safe when coming onto the land. The only duty was not to inflict harm wilfully.
Under the Occupiers Liability Act 1984 s1 (3), when does an occupier owe a duty to trespassers?
- he is aware of the danger or has reasonable grounds to believe that it exists; and ; (Rhind)
- he knows or has reasonable grounds to believe that trespassers are in the vicinity of the danger concerned or that he may come into the vicinity of the danger); and (Higgs )
- the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection. (Tomlinson )
what did the Rhind case establish?
C. dived into a shallow pond, despite warning signs, hitting a fibre glass container that was at the bottom
Held: Not Liable 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.
what did the Higgs case establish?
police officer entered somebody’s premises who didn’t have permission or a torch and it turned out that the premises were a garage and he fell down the inspection pit
held: no liability, why would you expect someone be in your premises that time of the night? …the occupier has to anticipate the presence of a trespasser
what did the Tomlinson case establish?
C. chose to dive into a lake despite the presence of a sign forbidding swimming.
D. had made it known they were going to turn the land into a marsh area to prevent this sort of behavior the judge said that that was unnecessary and too costly a precaution. Clear and visible signs warning of a danger may be all that an occupier needs to do to satisfy his duty under the Occupiers’ Liability Act 1984.
Under Section 1 (4) of the Occupiers’ Liability Act 1984 what duty is owed to tresspassers?
‘to take such care as is reasonable in all the circumstances of the case to see that the trespasser does not suffer injury on the premises by reason of the danger concerned’. court will consider the likelihood of harm, the potential seriousness of any injury and how practical it was to take precautions against such harm occurring.
does Section 1(8) Occupiers’ Liability Act 1984 cover damage to property?
no, an occupier will be liable for personal injury only.
under Section 1(5) of the Occupiers’ Liability Act 1984 will defence warnings be sufficient?
‘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’.
Thus, a warning sign may suffice, but only if it is clear enough so that the risk is obvious to the trespasser.
Volenti non fit injuria: under Section 1(6) Occupiers’ Liability Act 1984 is a duty owed if a trespasser accepts the risk?
‘no duty is owed to any person in respect of risks willingly accepted as his by that person’.
Thus, an occupier will not be liable for injury sustained by a trespasser if that trespasser has willingly accepted the risk of it occurring.
