Occupiers Liability Flashcards
re: liability of occupiers to visitors
what must C prove to establish?
- That they have suffered a loss due to the state of the premises;
- Identify the occupier;
- Prove that they are a visitor; and
- Establish that the occupier failed to take reasonable care for the visitor’s safety
What is included in the definition of premises?
wide definition, inc.:
o Open land
o Fixed and moveable structures
o Vessels
o Vehicles
o Aircraft
re: liability of occupiers to visitors
explain ‘C must suffer loss due to the state of the premises’
There must be a defective state of premises which has caused harm to C i.e.:
o C is walking up a driveway. They break their ankle in a pot hole. There would be a claim for OL.
o C is walking up a driveway. A car runs over C’s foot and breaks it. There would not be a claim for OL.
who is ‘the occupier’?
An occupier is someone who has ‘a sufficient degree of control over premises’ , it need not be the owner.
- There can be more than one occupier i.e. in Wheat case the managers and the brewing company were both held to be the occupiers
give some examples of an ‘occupier’
o Managers of a pub (Wheat)
o A landlord who lets a block of flats but retains control of the common staircase would be the occupier of the staircase
o Independent contractor (they would have control over the area they are working on)
o People who carry out maintenance
o People with control to let people in and out
re: liability of occupiers to visitors
who is a ‘visitor’?
Visitors are persons who have express or implied permission to be on the occupier’s land
implied permission i.e. if the grounds are open generally to the public
a person may have rights to enter the land under contract or by statute
As soon as someone exceeds the permission given, they become a trespasser and are dealt with under those rules
re: liability of occupiers to visitors
give some example in relation to visitors and trespassers
- police have a warrant and enter a property. They have a right to enter conferred by law. They are a visitor.
- estate agent ignores a sign saying ‘no cold callers’. They are a trespasser.
- boy enters the cinema without paying. They are a trespasser. They were permitted to enter subject to payment, which they have not.
re: liability of occupiers to visitors
what is the ‘common duty of care’
an occupier owed all visitors a ‘common duty of care’.
The DOC owed is to take such care as is reasonable in all the circumstances to see that the visitor is reasonably safe in using the premises for which they are permitted to be there (NB: the duty is to make the visitor safe, not the premises)
This applies equally to death, personal injury and property damage
re: liability of occupiers to visitors
what is the standard of care?
- The occupier must reach the standard of care of the reasonable occupier.
- They will be in breach of duty if they fail to reach this standard
re: liability of occupiers to visitors
what factors does the court consider when determining if the occupier has failed to take reasonable care for the visitor’s safety?
o Nature of the danger (specifically mentioned in 1957 Act)
o Purpose of visit
o Seriousness of injury risked
o Magnitude of risk
o Cost and practicability of steps required to avoid the danger
o How long the danger has been on the premises
o Any warnings of danger
o Type of visitor
warnings and children may reduce liability
what is the position in relation to children? Give an example.
- A higher degree of care is expected from the occupier in relation to child visitors
- This is because they cannot be expected to appreciate the dangers which would be obvious to an adult
- If the danger is an allurement, then the occupier is expected to do even more to safeguard the child’s safety
o Glasgow Corporation v Taylor (1992) C was a 7 y/o boy who died eating poisonous berries in a public garden. His father argued that D knew they were poisonous but the garden did not put adequate notices up. The court held that the berries were an ‘allurement’ to a young child and D should have taken additional precautions i.e. warning of the danger or fencing off the shrub
what can reduce an occupiers’ liability in relation to children?
Parental responsibility can reduce or even eliminate an occupiers’ liability for harm suffered to very young children
An occupier will have complied with its duty if the premises is reasonably safe for a very young child accompanied by an adult
re: liability of occupiers to visitors
what is the position in relation to skilled visitors?
Give examples
The standard of care expected of an occupier can be lowered in relation to a skilled visitor because they can be reasonably expected to appreciate and guard against any risks that are part of their job
Example 1:
o Woyjeck, a window cleaner, is injured in a fall while cleaning the outside of Harriet’s windows. A window handle, which he is using to support himself, is loose and comes off in his hand.
o The risk of such a fall was a special risk ordinarily incidental to the work of a window cleaner. Harriet could, therefore, reasonably expect Woyjeck to appreciate and guard against such a danger.
Example 2:
o James, a window cleaner, is injured on a defective stair when going upstairs in Harriet’s house to clean the inside of her windows.
o In this situation, the relevant risk is not one that is ordinarily incidental to the job of a window cleaner and, therefore, the occupier is not entitled to expect such a visitor to appreciate and guard against it.
what is the position regarding warnings?
If there is an adequate warning, then the occupier will have complied with their common duty of care and not be in breach of duty i.e. simply because there is a warning does not necessarily mean that it is sufficient
what are the key considerations when considering the adequacy of a warning?
o Nature of the warning and specificity i.e. ‘danger – slippery floor’ vs just a sign that says ‘danger’. The more specific, the more likely to be adequate i.e. ‘do not touch’, saying nothing about the warning. It need not state obvious dangers i.e. by water ‘drowning’
o Nature of the danger, is it hidden or obvious? If it is hidden the occupier will need to be more specific
o Type of visitor i.e. child visitors. A written warning may not be enough to enable a child to be reasonably safe. Tourists, does the sign need to be translated?
NB: there is a difference between warnings and exclusion notices. An adequate warning means they have complied with their duty. An exclusion notice operates as a defence.
re: liability of occupiers to visitors
when can an occupier be discharged from their common duty of care?
If they have engaged an independent contractor to undertake construction, maintenance or repair and injury results from their workmanship and the occupier acted reasonably in:
1. Entrusting work to an independent contractor; and
2. Taking steps (if any) as they reasonably ought in order to satisfy themselves that the contractor was competent; and
3. Taken steps (if any) as they reasonably ought in order to satisfy themselves that the work had been properly done
NB: this does not apply to all work, only construction, maintenance or repair
The checks/steps only need to be reasonable in the circumstances
re: liability of occupiers to visitors - independent contractors
explain ‘entrusting work to an independent contractor’
- It is unlikely a court would find it unreasonable to employ and IC, but the more technical the work the more reasonable it will be
re: liability of occupiers to visitors - independent contractors
give examples of ‘steps to satisfy themselves they were competent’
This may include obtaining references or making local enquiries
re: liability of occupiers to visitors
once C has established the four key points, what must they do next?
Establish causation and remoteness of damages (this is assessed in the same way as normal)
re: liability of occupiers to visitors
what are the possible defences?
o Consent
o Contributory negligence
o Exclusion of liability
explain consent
- The same principles as under negligence apply i.e. they must have known the precise risk and show by their conduct that they willingly accepted the risk
Example:
o A notice displayed by an occupier at the entrance to their premises reads ‘ALL VISITORS ENTER AT THEIR OWN RISK’ would not be specific enough to enable the occupier to rely on it. It does not make visitors aware of the precise nature of any risk before they encounter it.
re: liability of occupiers to visitors
explain exclusion of liability
- An occupier can exclude liability if:
o They have taken reasonable steps to bring the exclusion notice to C’s attention before the tort was committed; and
o The wording of the notice suffers the loss suffered by C
if the occupier is a business or trader: (NB: this will not apply to private occupiers):
o Any attempt to exclude liability for negligence causing death or personal injury is void.
o However, they can exclude liability for other loss provided that it is reasonable in all the circumstances for the occupier to rely on the exclusion notice
re: liability of occupiers to others
to whom is this duty owed?
- anyone who does not have permission to be on the land (inc. visitors who have exceeded their permission and people who didn’t know they do not have permission)
o people entering under an access agreement or order under the National Parks and Access to the Countryside Act 1949;
o people who enter land pursuant to the Countryside and Rights of Way Act 2000;
o people who exercise private rights of way over land
NB: people who use a public right of way are excluded from protection under this act
re: liability of occupiers to others
what is the general position as regards duty of care?
the occupier does not owe trespassers a duty of care. However, if there is a duty of care, this is only in relation death or personal injury arises (i.e. property damage is not covered)
re: liability of occupiers to others
what is the exception to the general position regarding duty of care?
an occupier does not owe a DOC to trespassers unless:
o The occupier is aware of the danger or has reasonable grounds to believe that it exists;
o Knows or has reasonable grounds to believe that the trespasser is in / or is likely to come into the vicinity of the danger; and
o It is reasonable for the occupier to offer some protection against the risk in all the circumstances
re: liability of occupiers to others
explain ‘reasonable grounds’
Reasonable grounds to believe means that the occupier must have actual knowledge of facts which would lead a reasonable occupier to be aware of the danger and presence of a trespasser
re: liability of occupiers to others
what will the court consider when deciding whether a duty of care is owed?
o The nature and extent of the risk i.e. is the danger hidden or obvious? Could the trespassers be killed? The more serious, the more reasonable it will be for the occupier to offer protections
o Type of trespasser are the trespassers deliberate or inadvertent? Are they a child?
o Cost and practicality of precautions if precautions are low cost, then it is more likely to be reasonable to impose them
A DOC is only caused by defective premises (i.e. see earlier example with care and driveway)
re: liability of occupiers to others
what must be established once a duty of care has been imposed?
whether there has been a breach of that duty i.e. that the occupier failed to reasonable care in all the circumstances so that the trespasser does not suffer injury on the premises by reason of danger concerned
re: liability of occupiers to others
what will the court consider when determining if there has been a breach of duty?
o The nature of the danger
o Age of the trespasser
o Nature of the premises (how dangerous i.e. private house? Railway line?)
o Cost and practicability of precautions
o Nature and character of the entry (i.e. burglar, child, inadvertent adult)
o Gravity and likelihood of injury
o Foreseeability of trespasser
warnings and children may reduce liability
re: liability of occupiers to others
what are the possible defences?
consent and contributory negligence
re: liability of occupiers to others
explain the position regard exclusion of liability
- It is not clear whether this defence would be allowed
- The 1984 Act is silent on whether liability can be excluded
- It is suspected that an occupier cannot exclude liability to trespassers because the 1984 Act is supposed to be a safety net form of protection
re: liability of occupiers to others
what is the position regarding the defence of illegality?
- This defence is not available
- An occupier cannot rely on the defence of illegality if the trespasser has entered onto their land to commit a crime (Revill v Newberry)
