Occupiers Liability Flashcards
Visitors vs Trespassers
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]
Occupiers Liability Act 1957
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)).
State of Premises vs. Activities on the premises
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.
who is an occupier
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)
Categories of occupiers
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)
duty to..
protect people from being harmed as a result of the state of the premises being in a dangerous condition.
state of premise
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.
Scope of duty for obvious risk
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.
Doctrine of allurement
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.
elements to satisfy breach of duty
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.
dismissing the duty cases - Standard of care
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.
dismissing the duty cases - warnings
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.
dismissing the duty cases - children
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.)
Discharging Duty of Care: Work by Independent Contractors
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
defences
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.
