Occupiers Liability Flashcards
Duty of care for occupiers liability
Largely governed by statute.
* Occupiers’ Liability Act 1957
* Occupiers’ Liability Act 1984
Occupiers; Liability Act 1957
Governs the duty owed by occupiers to visitors
Occupiers’ Liability Act 1984
Governs the duty owed by occupiers to non-visitors.
Occupiers’ liability is concerned with…
Loss caused by the state or condition of premises or things done or omitted to be done during the occupation of such premises
Occupiers liability = an extension
An extension to the traditional rules of negligence
Claims at occupiers liability made at
- Occupiers Liability Act and common law
Scope of Occupiers’ Liability Act 1957
- Act governs duty owed by occupiers to visitors.
- Duty relates to the “state of premises” rather “an activity” on the premises.
Tomlinson v Congleton 2004
- The 18 year old claimant dived into shallow water of a lake.
- Hit his head and sustained an injury
- HoL held risk was from claimant diving and not from state of premises.
Under the OLA 1957 a visitor can claim…
Both
* Personal Injury
* Property damage
Duty of care under Occupiers’ Liability Act 1957
Occupier of premises owes the common duty if care to all their visitors.
section 2(1) OLA 1957
Reasonable care and reasonably safe for use of the purposes - duty is to keep the visitor reasonably safe.
Following s2(1) there are three terms to understand if DoC applies OLA 11957
- Occupier
- Premises
- Visitor
OLA 1957 - Occupier
- Duty is on the occupier of the premises
- Section 1(2) OLA 1957 states occupier = under common law.
Occupier
Someone who has sufficient degree of control over the premises.
Wheat v Lacon 1966
Sufficiency of control is a question of fact.
Someone who is not the owner of the premises can still be occupier.
Wheat v Lacon 1966
Someone has a sufficient degree of control
Wheat v Lacon 1966 - L Denning
Whereevera person has a sufficient degree of control over premises that he ought to realise any failure on his part to use cate may result in injury to a person coming lawfully there, then he is an occupier.
Wheat v Lacon 1966 - Categories of occupier
- landlord does not live on property; tenant = occupier
- Landlord retains some parts of the premises, they are the occupier of those parts
- Landlord issues a licence, they remain an occupier
- Occupier employs and indepenedent contractor they are generally still responsible
Bailey v Armes 1999
- Liability is based on occupancy or control, not an ownership.
- Who is actual possession
- Immediate supervision, control and power of permitting / prohibiting entry
Multiple Occupiers
- Wheat v Lacon 1966
- Not necessary for a person to have entire control over the premises
- Must have sufficient control
Ferguson v Welsh 1987
Council wanted building demolishing - and prohibited sub-contracting.
But was sub-contracted, claimant sustained injury. Sued all. HoL held they were a lawful visitor for Mr Spence, but trespasser for council
OLA 1957 - Premises
- Doe not include land and buildings
s1(3)(a)
“any fixed or moveable structure, including any vessel or aircraft”
Wheeler v Copas 1981
Ladder = premises
OLA 1957 - Visitors
Occupier owes an automatic duty to visitors - persons lawfully on the property.
Section 1(2) OLA 1957 - “ persons who would at common law be treated as…invitees and licensees”
Under common law, visitors are ….
- Persons have express or implied permission to be on the occupier’s premises.
- Includes hose with lawful authority and contractual permission.
Express Permission
May be limited by notice - visitor becomes a trespassor.
Limitations made by: Area, Time, Purpose
Express Permission - Area
Occupiers must be clear as to which area visitors have access to.
Pearson v Coleman Bros 1948
Pearson v Coleman Bros 1948
Attacked by a lion
No signs saying not to access.
= visitor
Darby v National Trust 2001
Inconspicuous sign in a car park saying there should be no bathing in the pond.
No sign at the pond.
Car park was not next to the pond.
Not enough to turn claimant into trespasser.
Express Permission - Time
An occupier can restrict entry by imposing a time limit (opening hours), but it must be made clear to the visitor.
Stone v Taffe and Another 1974
Manager of a pub permitted a function to be held upstairs after licensing ours.
Gues fell down the stairs = visitors.
Express Permission - Purpose
- Invitee goes beyond the purpose they were invited fore - become trespasser.
Tomlinson v Congleton 2003
Claimant was to use the lake for canoeing, fishing and windsurfing only.
Swimming in lake = trespassing
Implied Permission
Exists because of an occupiers’ behaviour.
eg Postman has implied permission to be on a person’s property.
May be limited by notice.
Lowery v Walker 1911
- Public used defendants land as a shortcut for 25 years
- New took no action to prevent = implied licence.
- Attacked by wild horse.
Edwards v Railway Executive 1952
- Spot on the railway = shortcut
- Fence repaired, but repeatedly beaten down.
- Fence in good repair.
- Child hit by train = trespass
Lawful authority
s2(6) OLA 1957
Warrant or statutory right can enter premises as lawful visitors with or without permission.
Contractual authority
s5(1) OLA1957
If a person enters premises under terms of contract with the occupier, absence of express provision to the contrary = implied term that DoC owed
Public rights of way
Footpaths are not covered by either the OLA 1957 or OLA 1984 - therefore reliant on common law.
Private rights of way
- Are covered by OLA 1984
- Not cover the OLA 1957
Differences in terms of DoC owed
National Parks & Access to the Countryside Act 1949
Not regarded as visitors under the OLA 1957, but owed a duty under the OLA 1984
Countryside and Rights of Way Act 2000
Codified “right to roam”
OLA 1957 - Breach - Standard of Care
Reasonably safe for using the premises for the purposes for which they were permitted by the occupier to be there
s2(2) OLA 1957
Standard of Care -
Therefore that of the reasonable occupier
This is an objective test
Visitor - Standard of care - personal characteristics
A visitor may have personal characteristic effecting the standard of care reasonably expected
Pollock v Cahill 2015
Pollock v Cahill 2015
Blind claimant visited his friend
Fell out of second floor window
Occupier must have had regard to any known vulnerability.
Defendant should have warned the claimant or kept the window closed.
Child visitors
Owed a higher standard of care
OLA 1957
Exercise their calling
Persons entering premises in the exercise of their calling (to exercise their skills)
Owed a standard of care under OLA 1957
OLA 1957 - standard of care
- Reasonable standard
- Respective adjustments for personal circumstance
- Child
- Persons to exercise their skills
section 2(3)(a) OLA 1957
an occupier must be prepared for children to be less careful than adults
Taylor v Glasgow City Council 1922
Poisonous berries eaten by child
Liability = no action to warn children of danger.
Bush = allurement
Should have been fenced off
= Breach of SoC
Usefulness of s2(3)(a) OLA 1957
- Higher duty of care for children diminished by the courts sometimes finding that an occupier is entitled to rely on the supervisory role of parents
Phipps v Rochester Corporation 1955
- Where reasonable occupier is entitled to assume the child will be subject to parental care
- Blackberrying child fell down a trench - would have been obvious to an adult.
- Defendants satisfied duty of care as was safe for a parent and child
s 2(3)b
Occupier can reasonably expect a visitor coming onto their premises to exercise their skills, guard against ordinary risks
* Less is expected of occupiers in relation to skill visitors
* Occupier does not take care to protect against normal risks incidental to their job.
Roles v Nathan (Trading as Manchester Assembly Rooms) 1963
Chimney sweeps cleaning out flues of an old boiler.
Tried to do so without extinguishing.
Died from carbon monxide gas.
No liability as is a risk that would normally be guarded against.
Test for falling below the standard of care?
Negligence claim:
* Likelihood of harm
* Magnitude of harm
* Social value of the activity
* cost of preventative measures
Balanced
* Will take resources available into account
Tedstone v Bourne Leisure Ltd
- Woman slipped on a patch of water on the way to swimming pool
- Reasonable precautions
- Reasonable occupier would not have done more
Laverton v Kiapasha 2002
- Raining and defendant takeaway floor was wet.
- Defendant did all expected - tiles, doormat and mopping.
- More might have been expected from a larger business
Resources taken into account
Common duty of care
An occupier will satisfy common duty of care if they warn the visitor of danger and the warning was enough to make the visitor reasonably safe
- s2(4)(a) OLA 1957
s2(4)(a) OLA 1957
Common duty of care
Warning of danger, if enough
Adequate warning of danger
- What the danger is
- How to avoid it
Fact in each case as to whether enough. Depends on danger, scope, content and form.
Roles v Nathan
- Denying liability
- Occupier warned the sweeps of the danger of fumes
- Extinguished the boiler
- Physically removed the sweeps
- Warnings were enough.
Very obvious dangers may require warnings
Staples v West Dorset District
* Obviously a slippery sea wall covered in algae
Staples v West Dorset District
Obviously a slippery sea wall covered in algae
Notice may have a dual effect
- Act to satisfy occupiers duty by warning
- Operate as an exclusion notice
Discharging duty through independent contractors
- General rule is that the duty owed by an occupier to a visitor is non-delegable
Exception laid out in s2(4)(b) OLA 1957
Where building, construction, repair or renovation is carried out by a contractor causing loss… occupier may escape liability if…
Satisfies the three requirements of s 2(4)(b) OLA 1957
* Hiring independent contractor
* Selecting the independent contractor (check competency)
* Supervising and checking work was done properly.
s 2(4)(b) OLA 1957
Discharging duty through independent contractors.
Three independent contractors
s 2(4)(b) OLA 1957
Three requirements
- Hiring an independent contractor
- Selecting the contractor, took steps to check competency.
- Supervising and checking the work was done properly
s 2(4)(b) OLA 1957: Hiring an independent contractor
- Show it was reasonable to use an independent contractor
- More technical = more reasonable
- Rare to find unreasonable
s 2(4)(b) OLA 1957:
Selecting the independent contractor
(taken steps to check competency)
- Reasonable to choose this particular independent contractor
- Experience, Trade Associations, Qualifications
s 2(4)(b) OLA 1957:
Supervising and checking the work was properly done
- To a reasonable level
- Depends upon the nature of the work.
Haseldine v Daw
versus
Woodward v Mayor of Hastings
Haseldine v Daw
- Claimant visited a block of flats, owned by the defendant to see one of the tenants.
- Injured when the lift plummeted to the basement.
- Caused by negligence of highly reputable lift engineers.
- No responsibility as was technical, competent firm
And defendant had no technical knowledge = not reasonable
Woodward v Mayor of Hastings
- Pupil at the defendant’s school fell and injured himself on icy step
- Left in dangerous condition by a cleaner
- No technical knowledge
- Should have checked work
Did not discharge duty
Causation and Remoteness
- Nothing in the OLA 1957 that sets out how causation and remoteness should be tackled
- Once loss has been suffered, there is an assumption that causation and remoteness have been satisfied.
**Courts will only review if glaring issues with either,.
Defences in an OLA 1957
- Volenti / consent
- Contributory negligence
- Illegality
Defences in an OLA 1957: Volenti / consent
- Section 2(5) OLA 1957
- The claimant must be fully aware of the particular risk and through their conduct willingly accept the risk.
Section 2(5) OLA 1957: Volenti
Cases
White v Blackmore 1972
Titchener v British Railway Board
White v Blackmore 1972
- Claimant spectator was at a car rally
- Notices on the site stated there was danger
- Standing behind a rope ladder, a wheel from one of the vehicles caught the ladder and catapulted the claimant 20 yards.
Volenti did not apply as was not fully aware of the particular risk of the inadequate barrier
Titchener v British Railway Board
15 year old consented to the risk when she walked through a gap in the fence ont a life railway line.
Defences in an OLA 1957: Contributory Negligence
Section 2(3) OLA 1957 provides that in the determining the common duty of care
the degree of care ordinarily looked for in a visitor
* Contributory negligence
Young v Kent CC
Young v Kent CC
- A 12 year olds damages were reduced by 50% for contributory negligence
- Claimant was jumping on and fell through a skylight
- Trespasser not visitor.
Defences in an OLA 1957: Illegality
- General defence
- Not preserved in the OLA 1957 in the same way as cisent.
OLA 1984
- Governs duty owed by occupiers to non visitors
- Loss
- Occupier
- Premises
OLA 1984: Loss
- Occupier only liable for Phys Injury, including disease and any impairment of either a person’s phys or mental condition
(s1(1)(a) and 1(9) OLA 1984) - Property damage is not recoverable s1(8) OLA 1984
OLA 1984: Occupier
- Defined in the same way as OLA 1957 (section 2)
- As required by s 1(2)(a) OLA 1984
OLA 1984: Premises
- Defined in the same way s under the OLA 1957
s1(2) OLA 1984
* Fixed or moveable structure.
Definition of trespasser / non visitor
CASE
Robert Addie & Son (Collieries) Ltd v Dumbreck
Robert Addie & Son (Collieries) Ltd v Dumbreck
Trespasser
He who goes on to the land without invitation of any sort, and whose presence is unknown to the proprietor, or is practically objected to.
Robert Addie & Son (Collieries) Ltd v Dumbreck
CASE - Old law
- 4 year old boy was killed in wheel of haulage system
- Well known that children would enter field
- Warned children from time-to-time
- Inadequately protected & attractive to children.
- Boy was regarded as a trespasser, father had no remedy in law for loss
Old law - today would probably afford some protection
Occupiers Liability Act 1987
Duty of Care
- No automatic duty owed by an occupier to a non visitor
- Three stage test to est duty of care
s1(3)(a)-(c) OLA 1984
s1(3)(a)-(c) OLA 1984
Three stage tests for duty of care
Know or have reasonable grounds to
* Be aware of the danger
* Believe the other is in the vicinity of danger (whether lawful authority to be there or not)
* Risk is reasonably expected to offer the other protection.
s1(3)(a)-(c) OLA 1984
Three stage tests for duty of care
Duty of care: Aware of danger
s1(3)(a) OLA 1984
* Be aware of danger
* Actual knowledge of facts that would lead a reasonable occupier to be aware of danger.
Rhind v Astbury Water Park Ltd
Rhind v Astbury Water Park Ltd
- Claimant dived into a lake
- Suffered head injury on fibreglass container
- Container was not visible from surface
- No knowledge or reasonable grounds to believe
No duty of care
Duty of care: Knowledge the other is in the vicinity
s1(3)(b) OLA 1984
* Must know or have reasonable grounds to believe.
* Someone is in vicinity, or may come into the vicinity of danger.
Donoghue v Folkestone Properties Ltd
Donoghue v Folkestone Properties Ltd
- Claimant suffered diving into defendant’s harbour
- No duty owed, as although defendant was aware people swam
- No duty of care owed
- Not aware people would swim at night iin midwinter.
Swain v Natui Ram Puri
- Court held that defendant must have actual knowledge
- of claimant’s presence in vicinity
- OR of facts that would create a reasonable belief of a likely presence
Duty of care: Reasonable to protect trespasser against risk
s1(3)(c) OLA 1984
* Must be a risk that it is reasonable, in all circumstances to protect trespasser from.
* Balancing costs - obvious, hidden, risk level
* Not expected to protect trespassers from obvious risks and self inflicted harm
* Unless no informed choice
Tomlinson v Congleton Borough Council
Child unable to appreciate the danger.
No informed choice by trespasser for risks.
s1(3)(a) OLA 1984
Reasonable grounds for knowledge of danger
s1(3)(b) OLA 1984
Knowledge that the other is in the vicinty.
s1(3)(c) OLA 1984
Reasonable to protect trespasser against the risk .
Section1(4) OLA 1984
Duty up occupier to take such care as is reasonable in all the circumstances to see that the entrant does not suffer injury on the premises by reason of danger
Standard of care under OLA 1984
Section1(4) OLA 1984
Standard is that of reasonable occupier
When deciding what amounts to reasonable care under OLA 1984
Weigh up negligence breach factors
* Nature of the danger (hidden or obvious)
* Claimant (adult or child)
* Nature of premises (how dangerous)
* Purpose of claimant (burglar or accidental trespass)
* Occupier could or should have foreseen trespassing.
Analysis of breach: Swain v Natui Ram Puri
- Defendant erected 7 foot fence with barbed wire.
- Small section missing
- Used ladder to climb onto roof
- Fell through skylight
No duty owed, factory defunct, no children seen, reasonable steps taken
Analysis of breach: Young v Kent County Council
- Council liable for claimant’s injury as children climbing on roof was known risk
- Failed to protect against
- Low cost fencing solution
- HSE report indicated the skylight was brittle and
Section 1(5) OLA 1984
Duty may be satisfied if occupier takes all reasonable steps to give warning of the danger, or discourage persons from incurring risk.
Warning notices OLA 19864
Section1(4) OLA 1984
* All reasonable steps to give warning
* Notice will satisfy if sufficiently discourages
* Harder to discharge duty with a notice if a child where too young to read or appreciate the danger
Is it easier to satisfy the warning notice duty under OLA 1984 or OLA 1957
OLA 1984 is easier, as just need to take reasonable steps
- Notice will satisfy if sufficiently discourages
Titchener v British Railway Board 1983
Fences constructed by railway = sufficient warning.
Physical barriers can be enough to discourage trespassers from taking the risk
Causation and remoteness
OLA 1984
Deal in same way as OLA 1957
Defences under OLA 1984
- Consent /violenti
- Contributory negligence
- Illegality
OLA 1984: Consent Volenti
s1(6) OLA 1984
* Ratcliff v McConnel and Harpepr Adams College 1997
Ratcliff v McConnel and Harpepr Adams College 1997
- Drunk student climbed over locked gate to access college’s swimming pool
- Notice stating pool would be locked and use was prohibited from a certain 10 - 630 am
- Shallow end - broke neck and paralysed
No duty owed, defendant discharged duty - Defence of consent would have been successful.
OLA 1984: Contributory Negligence
- Partial defence
- Not provided for in OLA 1984
- Can be relied upon by defendants
Young v Kent County Council
Tomlinson v Congleton Borough Council
Young v Kent County Council
Claimant was held to be contributory negligent
Damages reduced by 50%
Tomlinson v Congleton Borough Council
*CoA decision overturned by the HoL
* Defendant liable.
* CoA finding had been subject to contributory negligence of 2/3s
OLA 1984: Illegality
Revill v Newbery
- Claimant trespasser committed burglary
- Shot by defendant
- Considered under negligence rather than OLA
- If defence was allowed, any defence y trespasser with illegal intent could be defeated.
Does not align with purpose of OLA 1984, defence unlikely to succeed
OLA 1957 Exclusion or limitation clauses
Section 2(1) OLA 1957
* Allows occupier, as far as free to do so, to extend, restrict, modify or exclude their duty to prisoners.
* Four restrictions on occupier’s freedom to exclude.
Four restrictions on occupier’s ability to exclude liability under OLA 1957
- Section 3 OLA 1957
- UCTA 1977
- CRA 2015
- Common Law
Exclusions:
Section 3 OLA 1957
- Cannot by contract exclude or restrict the common duty of care they owe to a 3rd party.
- s 3(1)
Exclusions:
Section 3(1) OLA 1957
- Where occupier is bound by a contract to allow people who are strangers to use and enter premises
- DoC owes those strangers as their visitors cannot be restricted or excluded.
Stranger
Section 3 OLA 1957
s3(3) OLA 1957
* Defined as someone who is not entitled to the benefit of the contract.
Exclusions:
UCTA 1977
- Business to business liability
- s2(1) cannot exclude/limit death or PI for negligence
- s2(2) exclude/restrict their liability for negligence, if term / notice satisfies reasonableness.
- s11 Requirement of reasonableness.
UCTA 1977
section 2(1)
Cannot exclude / restrict their liability for death or personal injury resulting from negligence.
UCTA 1977
section 2(2)
- Losses other than death and personal injury
- A person can exclude /restrict liability for negligence
- If the term / notice satisfies requirement of reasonableness.
UCTA 1977
section 11
Requirement of reasonableness
* Faur and reasonable to allow relia ce on the notice
* Having regard to all the circumstances
Smith v Bush
Reasonableness
Exclusions:
CRA 2015
- Trader and consumer
- Restricts use of exclusion clauses to limit liability for negligence (including OLA 1957)
CRA 2015
Section 65(1)
Trader cannot exclude / restrict liability for death or personal injury
CRA 2015
Section 62(1) and (2)
Relation to losses other than death and PO
* Trader can exclude / restrict their liability for negligence if the term / notice is fair
Unfair exclusion term
CRA 2015
- Contrary to the requirement of good faith
- Causes imbalance in rights and obligations
- To the detriment of consumers.
s62(4)
s62(4) CRA
Definition of unfair exclusion term.
* Contrary to the requirement of good faith
* Causes imbalance in rights and obligations
* To the detriment of consumers.
OLA 1957
Common Law Restrictions
- If UCTA nor the CRA apply
- Loss suffered to be judged against the principle of common humanity
- Given in British Railway Board v Herrington
British Railway Board v Herrington
- Common humanity
- Minimum legal standard of care - can never be excluded by agreement or notice.
- Would a conscientious person with defendant’s knowledge, skill or resources ecpect?
Common Humanity
Would a conscientious person with the defendant’s knowledge, skill and resources be reasonably expected to have done something which would have helped to avoid the accident?
OLA 1984
Exclusion or limitation clauses
- Silent on whether it is possible to exclude
- Two arguments
- OLA lays down bare minimum that cannot be avoided
- Unfair that trespassers would be a better position than lawful visitors, a situation clearly contrary to policy.
- Likely that some common law restrictions would apply as to the OLA 1957
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