Occupiers Liability Flashcards
What is occupier’s liability?
Occupier’s liability is a field of tort law, codified in statute, which concerns the duty of care owed by those who occupy real property, through ownership or lease, to people who visit or trespass. It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises.
What are the two acts that deal with occupier’s liability?
The Occupier’s Liability Act 1957 deals with lawful visitors.
The Occupiers’ Liability Act 1984 deals with trespassers.
Who is an occupier?
No statutory definition of an occupier. They are basically anybody who is deemed to be in control of a premises.
Generally they are the ones who have an insurance policy to meet the claim.
Wheat v Lacon & Co. Ltd (1966) - Definition of the occupier.
Harris v Birkenhead Corporation (1976).
Who can be a lawful adult visitor?
Invitees
Licensees
Those with contractual permission
Those with statutory rights of entry – police, meter readers etc.
What is an occupier’s responsibility to children?
Extra special duty of care since children are less careful than adults.
Subjective, depends on the age of the child. Glasgow Corporation v Taylor (1922).
Sometimes the occupier is not found liable because the child affected was not supervised by an adult or parent. Phipps v Rochester Corporation (1955).
What is an allurement?
Since there is no rule set as to age limit, if an ‘allurement’ (something to attract a child’s attention) exists, then if the damage or injury is not foreseeable, there may be no liability on the occupier. Jolley v London Borough of Sutton (2000).
What is an occupier’s liability to people carrying out a trade, or any other work within a premises?
If a tradesman is working on a premises, then the occupier will owe them a duty of care.
If however, the tradesman has failed to protect himself from any special risks, then the occupier may not be liable. Roles v Nathan (1963).
Note however that the injury must be related to the actual trade, if it is caused by something else, the occupier is liable.
What liability is owed for an independent contractor?
If a lawful visitor is injured by a workman’s negligent work, then there is a case where the occupier may be able to pass the defence onto them instead. S 2(4) 1957 Act. 3 requirements have to be met here however:
The work given to the contractor must ideally have been specialist and complicated. In other words, something the occupier would not have been able to do themselves. Haseldine v Daw & Son Ltd (1941).
The contractor hired must be competent to carry out the task. The occupier should check references, insurance etc. Bottomley v Todmorden Cricket Club (2003).
The occupier needs to check that the work has been properly done. Woodward v The Mayor of Hastings (1945).
What defences can a lawful visitor claim?
Contributory negligence – works in the same way as regular negligence defences.
(Consent) volenti – same as in negligence also.
Warning notices – can act as a complete defence, but under s 2(4) of the 1957 Act are ineffective unless they enable the visitor in all circumstances to be completely safe. Sometimes a sign alone won’t be enough to do this. Rae v Marrs (UK) Ltd (1990).
However if the danger is obvious, then no additional warning is necessary. Staples v West Dorset District Council (1995).
Exclusion clauses [s 2(1) of the 1957 Act] – this is where the occupier excludes their duty completely for any injury caused to a visitor by way of a warning, but unlike a simple warning sign, this must be made very clear on the sign.
An exclusion clause is when there is something in the print which will exclude the occupier from any liability.
Exclusion notices cannot however cannot work with child visitors who may struggle to understand or restrict liability for death or personal injury resulting from negligence.
What is the liability owed to trespassers according to the Occupiers’ Liability Act 1984?
Traditionally not covered in common law – occupiers owed the trespasser no duty at all.
Change from the House of Lords with the Practice Statement 1966.
Duty of ‘common humanity’ to trespassers
British Rail Board v Herrington (1972). The 1984 Act came in as a result.
British Rail lost and were found liable.
The 1984 Act only refers to personal injury, not damage to property.
S 1(3) – occupier is aware of the danger.
They are aware that others may come into the vicinity of the danger.
They may be expected to offer some protection.
The greater the risk, the more precautions that need to be taken.
The age of the trespasser may be taken into account, but in other cases it may not.
What are some of the factors which affect liability?
No liability if the danger is obvious and the trespasser is an adult.
Ratcliff v McConnell (1999).
Time of day and time of year
Donoghue v Folkestone Properties (2003).
Occupiers are not expected to spend lots of money risk proofing premises from obvious dangers
Tomlinson v Congleton Borough Council (2003).
No liability if the occupier had no reason to suspect trespasser’s presence
Higgs v Foster (2004).
If the occupier is unaware of the danger, then they are also not liable
Rhind v Astbury Water Park (2004).
Child trespassers and adult trespassers are covered by the same statutory rules
Keown v Coventry Healthcare NHS Trust (2006) and Baldacchino v West Wittering (2008).
What defences can a trespasser claim?
Very similar to general negligence defences:
Contributory negligence.
Consent.
Warning in very clear terms.
Westwood v Post Office (1973).
What are the main differences between the 1957 and the 1984 Acts?
1957 Act – allows for personal injury and damage to property claims, whereas the 1984 Act only allows for personal injury.
Even in these circumstances however, personal injury claims might fail. In the Tomlinson v Congleton DC case, Lord Hoffman said that it would be unreasonable to expect occupiers to have to go over the top and spend vast sums of money to ensure the safety of trespassers.
Difference between an objective and a subjective approach
Objective: 1957 Act requires the occupier to do all in their power to ensure that the visitor will be reasonably safe. This is the standard approach to tort claims. E.g. If a worker is injured at work because of dangerous equipment, the occupier will be liable, even if they were unaware the equipment was faulty.
Subjective: 1984 Act demands that the occupier needs to be aware or have reasonable grounds to believe that there is a danger before they are liable – subjective, e.g. Donoghue v Folkestone Properties (2003). I.e., it’s case-by-case.
What is the difference between the acts when establishing an occupier’s duty?
Under both acts, the particular danger needs to be identified before the occupier’s duty can be established.
The 1984 Act requires actual knowledge of the danger, whereas this does not seem to be implied by the 1957 Act.
In Rhind v Astby (2004), the occupier had no knowledge of the danger, so was not liable.
The 1984 Act doesn’t seem to require the occupier to check for danger on their premises.
What are the main differences in the approach of the 1957 and 1984 Acts?
The 1957 Act doesn’t require the court to consider whether the premises are safe for the particular visitor injured (unless they are a child).
According to the 1984 Act, although trespassers have the right to make claims, judges have usually found ways of ruling against them.
Judges will usually raise the issue of an obvious danger when they feel the trespasser should have appreciated this.
Edwards v Sutton LBC (2016) page 255, also makes clear that when there is an obvious danger, this also applies to the 1957 Act.
