Occupiers Liability

Question 1

Visitors vs Trespassers

Answer 1

visitors: Contractual entrants, invitees, licensee.

Trespasser: Individual on occupier land without permission.

Tomlinson v Congleton - visitors who exceed their permission become trespassers.

A visitor can cease to be a visitor if they use the premises other than as permitted (Geary v JD Wetherspoon [2011]

Question 2

Occupiers Liability Act 1957

Answer 2

Duty owed to visitors
S 1 (3) (a) : premises include land, buildings, fixed & movable structures e.g. a bouncy castle on the ground will entail a duty under the act Furmedge v Chester-Le-Street DC [2011]

Both personal injury and property damage are covered (by virtue of s. 1(3) (b).

The duty is to take such steps as in all circumstances reasonable to ensure visitors will be reasonably safe (s 2(2)).

Question 3

State of Premises vs. Activities on the premises

Answer 3

could extend to activities carried out carelessly on D’s premises: e.g. negligent driving or shooting by D or with D’s consent by 3rd party

. Point is to argue that the circumstances of the case dictate the imposition of a duty on the occupier to act positively to protect visitors from harm.

Question 4

who is an occupier

Answer 4

Wheat v Lacon [1966]
This case defined an occupier for the purpose of occupiers liability as 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 (visitors)

Question 5

Categories of occupiers

Answer 5

Tenant is occupier when landlord parts with control.
Landlord remains occupier for parts of building for which he has retained control, e.g. common staircase (Miller v Hancock [1893]),

Owner is occupier if he licences occupation by another but has right to repair (as in Wheat v Lacon).

Owner is occupier if no one lives in premises (Harris v Birkenhead Corporation [1975]:occupier can be someone who has never been to the premises)

Question 6

duty to..

Answer 6

protect people from being harmed as a result of the state of the premises being in a dangerous condition.

Question 7

state of premise

Answer 7

Tomlinson v Congleton BC [2003] HL: C was paralysed when he dived into a shallow lake. There were notices forbidding swimming. Held: C was trespasser and injury was not caused by state of premises.

Question 8

Scope of duty for obvious risk

Answer 8

James v White Lion Hotel [2021] – Claimant fell from a window in D’s establishment. The decision to run the risk has to be weighed against breach factors including cost of precaution.

Question 9

Doctrine of allurement

Answer 9

Something attractive to children on the premises may turn them from trespassers to visitors.
Glasgow Corporations v Taylor [1922] – child ate of a poisonous berry tree in Glasgow Botanical gardens.

Question 10

elements to satisfy breach of duty

Answer 10

Breach of duty owed by occupiers is subject to same controls for Breach of Duty in negligence: probability and severity of injury, cost of precautions and utility.

Question 11

dismissing the duty cases - Standard of care

Answer 11

Bowen v National Trust [2011] – D could not have prevented death of children by a tree branch that fell without warning.

Kiapasha (t/a Takeaway Supreme) v Laverton [2002] – customer slipped on wet floor on a rainy night. Held: D had precautions to keep floor clear of water and is not required to do more.

Question 12

dismissing the duty cases - warnings

Answer 12

Darby v National Trust [2001]- C’s husband drowned in a pond in a national park. Held: no liability as the park management should warn against contracting Weil’s disease (from swimming) but danger of drowning is obvious.

Question 13

dismissing the duty cases - children

Answer 13

S. 2(3) requires occupiers to take more care for the safety of children.
But see: Phipps v Rochester Corporation [1955]: Occupiers are entitled to assume parents will look after children.

Moloney v Lambeth Borough Council [2009] – child fell through balustrade of a staircase in block of flats. Held: Duty exists as it is reasonable to expect a child not to be supervised there

(Cf Marsden v Bourne Leisure Ltd – 2 year old drowned in a pool. Held: danger was obvious. Parents should have supervised.)

Question 14

Discharging Duty of Care: Work by Independent Contractors

Answer 14

Section 2 (4) (b)

Haseldine v CA Daw & Son Ltd [1941]: Negligent survey of repair of lift by independent contractor Held: quality of work done was not something that the occupiers could reasonably be expected to verify.

Cf Woodward v Mayor of Hastings [1945]: Icy step: technical knowledge or skill decisive factor (subjective test) Held: defrosting the stairs did not entail any technical knowledge, it was something that the school could have done themselves

Question 15

defences

Answer 15

Voluntary assumption of risk (s.2(5)) -
Geary v Weatherspone plc [2011] – C fell 4 meters on marble floor after sliding down a banister. Held: No liability as sliding down was not permitted and she chose to do it.

Contributory negligence is also a defence – English Heritage v Taylor [2016] – C was found 50% contributory negligent when he fell over a sheer drop at castle grounds.

Question 16

exclusion of liability

Answer 16

If business - not possible to exclude liability for personal injury or death.
Other exclusions subject to requirements of reasonableness/fairness.

Question 17

Occupiers’ Liability Act 1984

Answer 17

duty owed to trespassers

Occupiers owe a more limited duty to protect trespassers from (injury) because of danger on premises by virtue of s. 1(4) of the Act provided the following conditions are met:

If D is ware of or has reasonable ground to believe danger exists;

D knows or has reasonable grounds to believe [trespasser] is in vicinity of danger; and

The risk is one against which he may reasonably be expected to offer protection.

Question 18

duty of care to trespassers

Answer 18

S 1(4): the duty is to take such care as is reasonable in all the circumstances of the case to see that [trespasser] does not suffer injury on the premises by reason of the danger concerned.

S. 1(8) excludes damage to property.
In British Railways Board v Herrington [1972] HoL, a child suffered severe burns when while playing on an electrified railway track. D has seen children using a gap in the fence to sneak in. Held: D had to act humanely and breached his duty by not fixing the fence.

Question 20

discharging duty

Answer 20

Westwood v Post Office [1974] – warnings must enable trespassers to appreciate and avoid risk. It might also trigger the volenti defence.

Question 21

defences for trespassers

Answer 21

Where C accepts risk of injury, there will be no liability (i.e. Volenti is also applicable here: Ratcliffe v McConnell [1999] – student dove into swimming pool when he knew it was closed for winter and had very shallow water. There was sign about shallow depth. Held: no liability).