Occupiers Liability Flashcards
What is occupiers’ liability and why is it considered a special liability regime?
Occupiers’ liability refers to the legal duty owed by those in control of premises to individuals who enter those premises.
It is called a special liability regime because:
- It combines statutory law (Occupiers’ Liability Act 1957) with common law negligence.
- It imposes a structured framework of duties on occupiers.
Laws:
* Occupiers’ Liability Act 1957: Governs visitors (lawful entrants).
* Occupiers’ Liability Act 1984: Governs non-visitors (e.g., trespassers).
Key Concept: An occupier must take reasonable care to ensure visitors are reasonably safe while using the premises for the intended purpose.
How does the law define an occupier under the Occupiers’ Liability Act 1957?
An occupier is someone with sufficient control over premises. Ownership is not required.
Key Case:
* Wheat v E Lacon & Co Ltd [1966]
* The test for an occupier is control over the premises, not ownership.
* Both the pub managers and brewery company were occupiers because they had control.
Key Points:
* Multiple occupiers: There can be more than one occupier (e.g., landlords, contractors).
* Landlords: A landlord may remain an occupier for shared or retained areas (e.g., staircases in a block of flats).
* Contractors: Independent contractors may temporarily have sufficient control to be deemed occupiers.
Who qualifies as a ‘visitor’ under the 1957 Act, and how can a visitor become a trespasser?
A visitor is someone with express or implied permission to enter the premises.
* Express Permission: Clearly communicated (e.g., invited dinner guests).
* Implied Permission: Assumed based on conduct or circumstances (e.g., customers in shops).
* Statutory Visitors: Individuals exercising a legal right (e.g., police with a warrant).
Visitors Exceeding Permission:
* A visitor who exceeds their permission becomes a trespasser and falls under the 1984 Act.
Examples:
1. Dinner Guest: Lawful visitor (express permission).
2. ‘No Canvassers’ Sign: Sales rep ignoring the sign → trespasser.
3. Cinema Hopper (no ticket): Trespasser because permission was conditional on paying.
4. Hotel Guest in ‘Staff Only’ Room: Exceeds permission → trespasser.
5. Police Officer with Warrant: Lawful visitor exercising statutory right.
How are ‘premises’ defined under the 1957 Act?
he definition of premises under the Act is broad and includes:
* Fixed structures: Buildings, houses.
* Moveable structures: Temporary constructions.
* Open land: Parks, fields.
* Vehicles, vessels, and aircraft: Ships, cars, airplanes.
Example: A landlord’s common staircase, a garden, or a ship would all qualify as premises.
What is the ‘common duty of care’ owed to visitors?
The common duty of care under Section 2(2) of the 1957 Act requires:
* Taking reasonable care to ensure visitors are reasonably safe while using the premises for their permitted purpose.
Key Points:
* Focus: Visitor’s safety, not the condition of the premises.
* Duty applies equally to all visitors but is modified for:
1. Children (higher standard of care).
2. Skilled visitors (lower standard as they are expected to appreciate specific risks).
How is a breach of the common duty of care determined?
The occupier breaches duty if they fail to meet the standard of a reasonable occupier. Courts consider:
1. Nature of danger: Hidden vs. obvious danger.
2. Purpose of visit: Why was the visitor there?
3. Magnitude of risk: Seriousness and likelihood of harm.
4. Cost/practicability: Reasonableness of steps to remove the danger.
5. Duration: How long the danger existed.
6. Warnings given: Were they adequate?
7. Type of visitor: Special duties for children and skilled visitors.
Key Case:
* Glasgow Corporation v Taylor [1922]: Child poisoned by allurement (red berries). The court imposed a higher duty of care for children.
What additional duty does the 1957 Act impose for child visitors?
Children require a higher standard of care because they are less careful and may be attracted to dangers (known as ‘allurements’).
Key Cases:
1. Glasgow Corporation v Taylor [1922]:
* Occupier liable because poisonous berries were an allurement to a child.
2. Phipps v Rochester Corporation [1955]:
* Parental responsibility: A prudent parent would not allow small children alone on a building site.
* Occupiers are not liable if they reasonably expect parental supervision.
How does the duty of care change for skilled visitors?
The occupier is entitled to assume that skilled visitors will:
* Appreciate and guard against risks related to their work.
Examples:
1. Woyjeck Case: Window cleaner fell due to a loose handle. The risk was incidental to his job → occupier not liable.
2. Defective Staircase: If unrelated to the job, the occupier cannot rely on the worker’s skill to foresee danger.
When does a warning discharge the occupier’s duty of care?
A warning discharges duty if it is adequate to enable the visitor to be reasonably safe.
Factors to Consider:
1. Nature of the warning: Specific vs. vague.
2. Nature of danger: Hidden dangers need clearer warnings.
3. Type of visitor: Written warnings may be insufficient for children or non-English speakers.
Examples:
1. ‘DANGER VERY HOT WATER’: Specific warning → adequate.
2. ‘Danger’ Sign on Slippery Steps: Vague → inadequate.
3. Non-English Speakers: If warnings are unreadable, they are insufficient.
How can an occupier discharge their duty of care by relying on independent contractors?
Under Section 2(4)(b) of the 1957 Act, an occupier avoids liability if:
1. It was reasonable to hire the contractor.
2. They ensured the contractor was competent.
3. They ensured the work was done properly.
Key Cases:
1. Haseldine v Daw & Son Ltd [1941]:
* Technical work (e.g., servicing lifts): Occupier not expected to check.
2. Woodward v Mayor of Hastings [1945]:
* Non-technical work (e.g., cleaning): Occupier must inspect the work.
Summary: Reasonable care must be taken to check competence and ensure work quality.
What happens when a visitor exceeds their permission?
If a visitor exceeds their permission:
* They become a trespasser.
* The duty of care under the 1957 Act ceases.
Examples:
1. Hotel guest enters a ‘Staff Only’ room → trespasser.
- Shop customer steals from the till → trespasser.
The occupier’s liability is then governed by the 1984 Act.
What are the principles of causation and remoteness in occupiers’ liability cases under the 1957 Act and 1984 Act?
- Causation:
- The claimant must show that the occupier’s breach of duty caused their injury or damage.
- Causation uses the but-for test: “But for the breach of duty, would the injury have occurred?” (Barnett v Chelsea & Kensington Hospital).
- Intervening acts (novus actus interveniens) can break the chain of causation:
- Acts of Nature: If unforeseeable, liability may cease.
- Third-Party Acts: Only break the chain if extraordinary or not reasonably foreseeable.
- Claimant’s Own Acts: The claimant’s conduct may also break the chain if unreasonable.
2. Remoteness of Damage: - The loss must be a reasonably foreseeable consequence of the breach (The Wagon Mound [1961]).
- In Hughes v Lord Advocate [1963], the occupier was liable as the type of injury was foreseeable, even though the exact method (explosion from an oil lamp) was not anticipated.
- If causation fails → No claim.
- If the damage is too remote → Not recoverable.
How does the defence of consent apply under the Occupiers’ Liability Acts?
- Principle: The occupier is not liable if the claimant:
- Had knowledge of the precise risk.
- Voluntarily accepted the risk.
- Their consent must be free from coercion (Smith v Baker [1891]).
2. Under the 1957 Act: - Generic warnings (e.g., “Enter at your own risk”) are not usually sufficient unless they outline the specific danger.
- Example: A poorly marked “Danger” sign near steep steps may not protect the occupier.
3. Under the 1984 Act: - Trespassers who willingly accept risks have their claims defeated.
- Ratcliff v McConnell [1999]:
- A student ignored signs and dived into a shallow pool, suffering severe injuries.
- Court held he was aware of the risk and voluntarily accepted it.
- The risk must be obvious and known to the trespasser.
Key Point: The occupier must prove the claimant’s awareness and consent to the risk.
How can occupiers exclude liability under the 1957 Act, and what are the limitations?
- Principle:
- Occupiers can exclude or restrict their liability through notices or contract terms.
- The exclusion clause must:
- Be clear and unambiguous.
- Be brought to the visitor’s attention before they encounter the danger.
2. Limitations under UCTA 1977 (business occupiers): - Cannot exclude liability for death or personal injury caused by negligence.
- Liability for property damage may be excluded if it is reasonable.
3. Limitations under CRA 2015 (traders): - Traders cannot exclude liability for consumers’ death or personal injury.
- Property damage exclusion must pass the fairness test.
4. Private Occupiers: - Not bound by UCTA or CRA.
- Example: Homeowners can display exclusion notices like “No liability for injuries on these premises”.
Example:
* Business delegate injured by a falling shutter: Liability cannot be excluded.
* Private homeowner excludes liability for injuries with a notice → Valid if clearly displayed.
How does contributory negligence reduce damages under the Occupiers’ Liability Acts?
- Principle:
- If the claimant’s injury was partly caused by their own carelessness, their damages are reduced proportionately under the Law Reform (Contributory Negligence) Act 1945.
2. Standard: The claimant’s actions are judged against the standard of a reasonable person.
3. Examples: - Under the 1957 Act:
- A visitor ignores warning signs about slippery floors → Damages reduced for failure to take reasonable care.
- Under the 1984 Act:
- A trespasser climbs a clearly marked electrified fence → Contributory negligence applies.
- If the claimant’s injury was partly caused by their own carelessness, their damages are reduced proportionately under the Law Reform (Contributory Negligence) Act 1945.
Case Example:
* Revill v Newbery [1996]: Trespasser injured during burglary. Court found contributory negligence applied as the trespasser was partly responsible for his injuries.
Key Point: The reduction depends on the degree of the claimant’s fault.