Occupiers' Liability

Question 1

Wheat v Lacon

Answer 1

Lord Denning defined the occupier as someone who had control over the premises and has control over who is allowed to enter the premises.

No liability on either defendant (managers and owners), as a stranger had removed the light bulb and they were not responsible for the stranger’s actions.

Question 2

Harris v Birkenhead Corporation

Answer 2

The Court of Appeal held that occupier does not have to be in actual physical possession for them to have control over premises.

It was sufficient that the defendant had the legal right of control, so they were regarded as an occupier.

Question 3

OLA 1957

Answer 3

1. S1(3): Premises include land, buildings and ‘any fixed or movable structure’.
2. S2(1): set out the duty of care that is owed by an occupier to the visitor.
   > An occupier of the premises owes a common duty of care to all his visitors, except in so far as he is free to do and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.
   > Claimant can claim for PERSONAL INJURY and DAMAGE TO PROPERTY if the duty is breached, but not for pure economic loss.
3. S2(2): standard of care.
   > Occupiers have a duty towards visitors 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 to be there.
   > Occupiers are not required to provide absolutely safety, as this would be impracticable - they have a duty only to take reasonable care to make the visitor safe, which can be done by, for example, giving reasonable warning of the danger.
   > Standard of care is generally applied in negligence, standard of ‘reasonable man’.
   > Only applies so long as the visitor is carrying out activities that are authorised within the terms of the visit.
   > Duty is to keep visitors safe, not necessarily to maintain safe premises.
4. S2(3)(a): law relating to child visitors.
   > An occupier must be prepared for children to be less careful than adults. If the occupier allows a child to enter the premises then the premises must be reasonably safe for a child of that age.
   > An occupier will be allowed to assume that very young children will be accompanied by someone supervising them.
5. S2(3)(b): law relating to someone who is exercising their ‘common calling’ on the occupier’s property.
   > Refers to a person whom the occupier has invited on the premises to carry out a job and who has been injured as a result.
   > An occupier may expect a person, in the exercise of their calling, will appreciate and safeguard against special risks that are usually connected with it.
6. S2(4)(b): when a person is harmed by the defective work that the independent contractor has carried out.
   > Independent contractors are employed by an occupier to do specific, usually specialist, work.
   > An occupier will not be liable for damage caused to a visitor due to the faulty execution of work by an independent contractor, as long as:
   » It was reasonable to entrust the work to an independent contractor.
   » The occupier had taken reasonable care to see that the independent contractor was competent.
   » The occupier had taken reasonable care to see that the work had been done properly.
   > This section will only apply if there is evidence of ‘faulty execution of construction, maintenance or repair’. If there is no evidence of this, the normal negligence principles will apply.
7. S2(1): exclusion of liability
   > Duty of care can be extended, restricted, modified or excluded.
   > Usually done by contract or notice.
   > UCTA 1977 applies if the premises are being used for business purposes.
   » S2: a person cannot, by reference to a contract term or to a notice, exclude or restrict his liability for death or personal injury caused by negligence; and, in the case of other loss or damage, he cannot exclude or restrict his liability for negligence unless the term or notice satisfies the requirement of reasonableness.
8. S2(3): contributory negligence
   > Law Reform (Contributory Negligence) Act 1945 applies.
   > Where the visitor’s failure to take reasonable care for their own safety is a cause of the harm suffered, the amount of damages warded will be reduced.
9. S2(4)(a): warnings
   > If a visitor is given sufficient warning of a danger to make them reasonably safe, the occupier will not be liable for any damage that the claimant suffers because of the danger.
   > Positioning, size and wording of the warning is vital.
   > Warning must refer to the precise risk or danger that the visitor would be facing.
10. S2(5): volenti non fit injuria
    > The common duty of care does not impose upon an occupier any obligation to take care if the risk of harm has been willingly accepted by the visitor.
    > If a visitor does not always willingly accept a risk just because the occupier has placed a warning sign on the premises.
    > The sign must state the type of harm that may occur and it has to be clear.

Question 4

Fryer v Pearson
Ward v Tesco Stores

Answer 4

Occupiers are merely obliged to guard against foreseeable risks, not unexpected risks.

Nothing to suggest that the occupier knew the needle was on the floor or created danger.

Question 5

Ward v Tesco Stores

Answer 5

A greater duty might be owed by shopkeeper towards customers slipping on spilled yoghurt.

Question 6

Horton v Jackson

Answer 6

He argued that the defendant did not place a screen between two tees to prevent balls hit at one tee from hitting people playing at the other tee.

There was a sign warning people to wait until others at the first tee had moved on.

The Court of Appeal disagreed with the claimant, as only two incidents had ever occurred at that tee, so the trial judge was entitled to hold that the existing precautions (the sign) were reasonable and there was no breach of duty.

Question 7

Darby v National Trust

Answer 7

No need for warning if the risk of doing something is obvious.

Question 8

Wood v Smith and Western Restaurants

Answer 8

Confirm that the occupier does not have to make premises absolutely safe.

The claim failed because minor defects that are not dangerous need not be rectified by the occupier.

Question 9

Phipps v Rochester Corporation

Answer 9

Assumption that very young children will be accompanied by someone supervising them and this can reduce the degree of care required by the occupiers.

The court stated that reasonable parents would not send their children into danger without some form of protection, and that both parents and occupier should act reasonably.

Lord Devlin: the responsibility for the safety of little children must rest primarily upon the parents; it is their duty to see that such children are not allowed to wander about by themselves, or at least to satisfy themselves that the places to which they do allow their children to go unaccompanied are safe for them to go.

Question 10

Glasgow Corporation v Taylor

Answer 10

As the berries were an allurement to the child, the defendant breached their duty by leaving the berries as they were.

Question 11

Simkiss v Rhondda Borough Council

Answer 11

The court stated that an occupier should not be asked to achieve a higher standard of care than a parent who did not consider the premises a risk to the child.

Question 12

Jolley v Sutton London Borough Council

Answer 12

The boat was said to be allurement to boys of the claimant;s age, and the defendant had been negligent in not removing it.

Question 13

Roles v Nathan

Answer 13

The defendant was not liable as they could assume that the sweeps would be aware of this particular danger (ignore warning by an expert to seal the sweep hole and inspection chamber before they lit the boiler). In this instance, they were aware as they had received a warning.

Question 14

General Cleaning Contractors v Christmas

Answer 14

Defective windows were a risk that window cleaners should guard against.

His claim against the householder failed, but he was able to successfully claim against his employers for failing to train him properly.

Question 15

Woodward v The Mayor of Hastings

Answer 15

The defendants were liable because no technical knowledge was needed to check the cleaning of the step.

Question 16

Haseldine v Daw

Answer 16

The firm had previously been competent and the technicality of the work meant that the occupier was not expected to check it had been done properly.

Question 17

Gwilliam v West Hertfordshire NHS Trust

Answer 17

The occupier will be liable if they failed to take precautions for extra-hazardous activities, for example, failing to check that the independent contractor has the relevant public liability insurance and risk assessment for the activity.

Laid out guidelines about what is expected from an occupier regarding an independent contractor’s insurance.

S2(2)(b) could not be used but the nature of the event demanded that the defendant had to establish that the independent contractor was competent. This could include checking the independent contractor’s insurance status.

In this case, it was an unreasonable requirement for the defendant to check the policy document, it was sufficient that the independent contractor was asked about insurance at the time of the booking.

There is no breach of duty.

If was sufficient for a defendant to enquire about an insurance policy at the time of hiring an independent contractor even though the policy later expired.

Question 18

Bottomley v Todmorden Cricket Club

Answer 18

Advice in Gwilliam was not followed.

The court held that the defendant as the occupier of the land was liable because insufficient care had been taken to make sure that the firework was competent and there was adequate insurance.

Checking for competency can include checking for insurance status and previous records in doing the job the defendant is hired to do.

Question 19

White v Blackmore

Answer 19

A case where there is no liability for death.

A notice had been posted at the entrace to the course, and at other points about the field, stating that the defendant would not be responsible for any accidents.

As the defendant had taken all reasonable precautions to bring to the claimant’s attention the conditions attached to the permission, there was no liability.

Question 20

Cotton v Derbyshire Dales District Council

Answer 20

In some instances, the danger is so obvious that there is no need for a warning sign.

Claimant argued that there should be a sign placed at both ends of the main path, warning that the cliff could be dangerous. He alleged that he would not have acted as he did, if he had known about the danger.

The claim failed as there was no obligation to warn of an obvious risk. The claimant would have been aware of the risk that the cliff posed, so a sign would not have affected the events that occurred.

Henry LJ: there was no duty to warn of dangers which are obvious. Once it was appreciated that there was no path, the danger of going down a steep slope on a loose surface without being able to see over the brow, was obvious to anyone who had reasonable judgement of the situation.

Question 21

Rae v Mars (UK) Ltd

Answer 21

A warning would have been useless given that the hole in the ground was immediately inside the door.

On the evidence, he was not warned specifically about the exceptional danger created by the pit.

The defendant was liable because the company had failed to give adequate warning, and the claimant was awarded damages.

Obiter dicta: one of the judges said that even if there had been a warning, it was likely to be ineffective without a barrier around the pit, because of the immediacy of the danger to a visitor.

Question 22

British Railways Board v Herrington
Addie v Dumbreck

Answer 22

The House of Lords said the standard of care demanded towards a trespasser was less than that required towards a lawful visitor because:
> A trespasser by his very nature is behaving unpredictably, and the ‘reasonable contemplation’ principle limits the duty of care accordingly;
> The occupier is not generally liable to a lawful visitor who indulges in activities that are beyond the scope of his licence or invitation, and anything a trespasser does is necessarily in that category;
> Although an occupier may try to deter trespassers from going into danger, it is virtually impossible to prevent them doing so - small boys can get into or up or round almost anything;
> Since trespassers are themselves misbehaving, it would be wrong to allow their own misbehaviour to create them rights against others

Even towards trespassers, the occupier has ‘a duty of common humanity’.

Question 23

Tomlinson v Congleton Borough Council

Answer 23

It is possible to become a trespasser in specific parts of a building or land.

The Court of Appeal held the defendant was liable for the claimant’s injury because of the inadequate steps taken to prevent him from trespassing. It also stated that the warning signs may have acted as an allurement to macho young men.

Although the claimant was a visitor to the park generally, he did not have permission to enter the lake and became a trespasser when he dived in.

The House of Lords reversed the Court of Appeal decision, holding that the harm was caused by the claimant’s own actions, not by the state of the premises.

Lord Hoffman: there was no duty to warn or take steps to prevent the claimant from diving, as the dangers were obvious. This was based on the principle that the claimant had free will, and to suggest otherwise would deny the benefit the lake gave to other users.

The claimant should take responsibility for his own reckless actions.

Policy-driven decision as it emphasised on the public benefit of the lake.

Question 24

OLA 1984

Answer 24

1. S1(1)(a): the occupier will owe a duty of care to persons other than visitors.
   > Applies in respect of any risk of a trespasser suffering injury on the premises because of:
   » Any danger on the premises; or
   » Things done or omitted to be done on the premises.
   > Trespasser should have lesser rights, so can claim for DEATH and PERSONAL INJURY only, cannot recover damages for property damage or pure economic loss.
2. S1(3): duty to trespassers will only exist if all three requirements are met:
   > The occupier is aware of the danger or has reasonable grounds to believe that it exists;
   > He knows or has reasonable grounds to believe that the trespasser is in the vicinity of the danger concerned or that he may come in the vicinity of the danger; and
   > The risk is one which in all the circumstances of the case, the occupier may reasonably be expected to offer the trespasser some protection from.
3. S1(4): set out standard of care
   > 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 because of the danger concerned.
   > Any factors that are personal to the defendant are not considered and do not form part of ‘all the circumstances’.
4. Unlike 1957 Act, the duty to take reasonable care cannot be excluded.
   > Some academics suggested that exclusion of liability is possible, since the Act does not say that exclusion is not possible.
   > Some suggested that it is not possible, as the duty in the 1984 Act reflects the common law duty of humanity - this cannot be excluded, as it is the minimum standard below which occupiers cannot fall.
5. S1(5): warnings
   > An occupier will fulfil their duty to a trespasser by taking reasonable steps to:
   » Give warning of the specific danger, or
   » Discourage people from taking a risk in relation to the danger
6. S1(6): volenti non fit injuria
   > There is no duty of care owed to someone who willingly accepts the risk of known danger.

Question 25

Keown v Coventry Healthcare NHS Trust

Answer 25

A claim failing because the premises were not dangerous.

The claimant was a trespasser as he had gone beyond the scope of implied permission by climbing the underside of the fire escape.

The Court of Appeal reverse the trial judge, said the fire escape could not be regarded as ‘a danger due to the state of the premises’ - it was dangerous only because the claimant was misusing it, and (obiter) it would not be reasonable anyway to expect the NHS to offer protection against a danger such as this.

Question 26

Donoghue v Folkestone Properties Ltd

Answer 26

Lord Phillips MR: they owed the claimant no duty of care. They knew of the obstruction, and may have known that he was in the habit of swimming in the harbour during the summer, but they had no reasonable grounds for knowing that he or anyone else would come into the vicinity of the danger late at night in the midwinter.

The circumstances that needed to be considered were the time of the year that the incident occurred and tha fact that there was no reason to believe that anyone would be swimming then.

Question 27

Ratcliff v McConnell

Answer 27

The risk of diving into shallow water was obvious to any adult and the defendant had done everything they could to deal with it. No duty of care to protect the claimant.

The claimant knew of the dangers of diving into shallow water, as he had known that the pool was closed and contained less water than usual.

The claimant had willingly consented to the risk harm from the danger of the pool.

The defendant had done all they could to prevent harm in the circumstances.

Question 28

Young v Kent County Council

Answer 28

The court held that the school had a duty to protect children from known risks.

There was a breach of duty, as the defendant had failed to protect child trespassers, even though it woud not have cost much money to deal with the roof problem.

The claimant’s contributory negligence was assesseed at 50 per cent.

Question 29

Titchener v British Railways Board

Answer 29

The court held that adult claimants are assumed to have accepted any risk that they knew about when entering the land.

The defence of volenti non fit injuria will only apply to visitors if they know enough to be reasonably safe.

Question 30

Revill v Newberry

Answer 30

The claimant had been awarded £4000 and his contributory negligence was assessed at two-thirds.

The defendant knew there was an imminent danger (a spray of shot) onhis premises, and knew the claimant was in the vicinity (even if not in the direct line of fire), and that was enough for him to owe a duty of care under the 1984 Act.