Occupiers Liability Flashcards
What is occupiers lability?
A branch of negligent, statutory tort
Individuals who occupy land have a duty towards the safety of others who come into their land
Who is an occupier?
No full statutory def though
S.1 (2) states that the rules apply to a person “in occupation or control of a premises”
What was confirmed in Wheat?
D owned a pub, but it was a run by the manager and his wife. They were allowed to take paying guests on the first floor. A paying a guest guest was killed when he fell on an unlit stair case. HL both managers and owner were occupiers and owed V a duty of care.
What are premises?
S.1 (3) (a) OLA 1957
“ any fixed or moveable structure including any vessel, vehicle or aircraft”
Who is a visitor?
Occupier’s Liability Act 1957
Has express or implied permission from the occupier or a legal right to enter
What is an express visitor/ permission?
Someone is expressly given authority to be allowed on the premise. However, if there behaviour exceeds the extent of the permission granted, such deviation can lead to the visitor becoming a trespasser
The Carlgarth “When you invitee a person into your house to use the staircase, you do not invite him to slide down the banisters”
What was the confirmed in the Carlgarth?
“When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters”
What is implied permission/ visitor?
someone who has not been expressly invited nor prohibited from entering but are assumed as not to be objectionable to the occupier. Implied from circumstance or conduct
What are those with a legal right to enter?
the law gives right to enter to a certain category of people which renders them a lawful visitor , irrespective of the occupier’s wishes e.g police enter under warrant
What is the common duty of care?
S.2 OLA 1957
“An occupier owes a common duty of care to all his visitors…to see that the visitor will be reasonably save for the purpose he has been invited”
What is the common duty of care towards adult visitors?
All adult visitors all owed a standard duty of care under S.2 OLA 1957 which is to take reasonable steps to keep the visitor reasonably safe for the purpose of his visit
To hold the D anything higher then “reasonably safe” would open the floodgates and impose a very high responsibility which is regarded as unfair
What happened in the case of Laverton?
D owned a takeaway shop. They had slip-resistent tiles and used a mop and bucket to mop the floor when it rains. C went in when it had been raining and slipped and broke her ankle. CA held D not liable as D had taken reasonable care and did not have to make the shop completely safe
What duty is owed to child visitors?
S.2 OLA 1957 “common duty of care” and an additional special duty owed under S.2 (3) (a) OLA 1957 “an occupier must be prepared for children to be less careful than adults. If the occupier allows a child to enter the premises, the premises msut be reasonably safe for a child of that age”
How is the common duty of care owed towards a child measured?
=Subjectively (according to the childs age) rather than objectively
What happened in Moloney?
A 4 year old fell through a gap in railings and was injured. An adult could not ahve fallen through the gap, nevertheless it was dangerous to a child and therefore the occupier was liable
Regarding child vistors what are the generally taken as?
Unlikely to appreciate the risks in a way that adults would and be attracted to the danger. For that reason occupiers must guard against any kind of allurement
What happened in the case of Taylor?
7 year old child died after eating posionous berries from a public garden. The D knew they were posionous but failed to fence of the shrub or put warning signs up. It was accepted that the child had no right to take the berries and that an adult doing the same would be regarded as a tresspasser, however leaving the shrub out was said to be an “allurement” to a child so D liable
What does the law state that arguably balances the repsonsibility of the occupier?
There is a balance of responsibility between the occupier and the parents
Occupiers are entitled to assume very young children will be accompined by someone repsonsible for them. Thus the degree of repsonsibility is reduced
What happened in the case of Phipps?
5 year old brother and his 7 year old sister were picking blackberries and crossed some open land where Ds were building houses. This land was commonly used by the kids to play on which the D was aware of. In the centre of the land was a deep trench, C fell in breaking his leg. Ds were not liable as they could assume that no sensible parent would allow such young children to enter that area alone. Judge Devlin stated “ it would not be socially desirable if parents were, as a matter of course, able to shift the burden of looking after their children….. to those persons who happen to have accessiblr bits of land”
What was confirmed in Jolley?
C found an abanded boat on a council estate he lived on, it had been there for 2 years and children regualry played on it. C propped it up with a jack but it collapsed in C paralysing him. The council agreed they should have removed it as it was reasonably foreseeable that children would be attracted to it but they claimed the acts of C were not forseeable (propping it up). HL decided that it was foreseeable the children would meddle with the boat and that it was necessary to foresee what would excatly would happen pointing out the ingenuity of children. C won.
What is confirmed under S.2 (3) (b) OLA 1957?
“An occupier may expect that a person, in the exercise of his caling, will appreciate and guard agaisnt any speical risks”
What was confirmed in Roles?
Ca refused to impose laibility on occupier after chimney sweep died after inhaling carbon monoxide fumes whilst cleaning an industrial chimney. The occupiers were entitled to expect chimney sweeps to be aware of the dangers
What does S.2 (4) (b) OLA 1957 confirm?
confirms that the occupier is not liable for “damage caused to a visitor by a danger due to the faulty execution of any work … by an indepedent contractor employed by the occupier ….. who had acted reasoanbly in entrusting the work to the indepdent contractor and had taken such steps as he reaosonably ought in order to satsify himself that the contractor was competent and that the work had been properly done”
What case confirms that it is reasonable for the occupier to have entrusted the work to the contractor?
Haseldine
C was killed when a lift plunged to the bottom of its shaft failing negligent repairs by contractors. Building occupiers were not liable as they had fufilled their duty of care by apointing an apparently competent firm to carry out the maintance. Due to the highly technological nature of the work, it meant the occupier was not expected to check whether it was done properly
What case confirms that an occupier must take reasonable steps to satisfy themselves that the contractor is competent?
Bottomely
Cricket club hired a stunt team for a firework display. The stunt team inlisted the help of C, an unpaid ameateur with no experience. C was burnt and broke his arm when the stunt went wrong. The stunt team had no insurance and court held that liability fell on the cricket club who failed to hire compentent contractors with no insurance.
What case confirms that if the nature of the work allows, making sure that it had been done properly falls to the occupier?
Woodward
A child slipped at school on a step covered in ice/ snow. The steps had been negligently cleaned of ice and the occupiers were held liable for failing to take reasonable steps to check the work was done properly. The nature of the work meant it could be easily checked.
If all 3 conditions are satisifed what happens?
The occupier will have a denfence and the injured C will have to sue the contractor directly
What did the Ocuppier’s Liability Act 1984 introduce?
Provides a limited duty to a tresspasser and to redress the relative harshness of the previous common law under which the occupier had no duty at all other than to not deliberately inflict injury
What was the laws previous view on an occupier taking reasonable detterant steps to protect their property?
Clayton
The court accepted that an occupier was entiteld to use reasonable detterants to keep tresspassers out, in this case, broken glass on top of a wall. The only requirement was that the detterant should be reasonably visible.
What was the previous laws view on child tresspassers?
= particularly harsh towards child trespassers, not allowing for their limited understanding of risks
Addie
Children often played near dangerous machinery at a coalmine and were turned away by the owners. When a child was injured the court held there was no liability as the child was a tresspasser
What case overrrueld Addie?
BRB v Herrington
Child badly burned after going under a fence onto electrified railway lines. It was well known that the fence was broken and that children regularly plated by it. HL overrruled Addie and establihed a limited duty owed to a child tresspasser when an occupier knew the danger and the likelihood of trespass and could have avoided the situation.
In 1975 the law commision investigated the law regarding duties owed to a tresspasser waht did it suggest?
Their report led to the introduction of the Occupiers Liability Act 1984
Who is a tresspasser?
Someone who goes onto land without any kind of permission and whose presence is not known to the occupier or if known is obejected to.
A legal visistor can becoem a tresspasser in a specific part of building or land
When does the Occupiers Liability Act 1984 apply?
The scope of protection is narrower then that unde OLA 1984 with occupiers only being liable for personal injury which relfects the understandable view that trespassers are less deserving of protection than lawful visitors
What did Lord Hoffman state in the case of Tomlinson?
“Parliament has made it clear that in the case of a lawful visitor, one start with the assumption that there is a duty, whereas in the case of a tresspasser one starts with from the assumption that there is none”
What does S.1 (4) OLA 1984 state?
The duty is owed to “take such care as is reasonable in the circumstances to see that the trespasser is not injured by reason of the danger”
What does S.1 (1) (a) OLA 1984 state?
………..”by reason of any danger due to the state of the premises”
essentially this means that the poorer the state of the premises, the greater degree of risk and thus more precautio the occupier will take. Premsies can be inherently dangerous or in a poor state of disrepair
When regarding whether reasonable duty of care was taken in the circumstances in accordance to the danger due to the state of the premises what factor must be considered?
The nature of the premises
The degree of danger
The practicality of taking precautions
What happened in the case of Keown?
An 11 year old climbed up an external fire escape at a hospital, he fell and hit his head and suffered brain damage. Both parties accepted his was trespassing on the site. trial judge found the NHS trust liable, but reduced C’s damage by 2/3 for his contributory negligence. Hospital appealed arguing there was nothing about the state of the fire escape itself that made it dangerous, what had caused the risk was the C’s decision to climb it. CA deemed NHS trust not liable
What is the 3 part test for an occupier to owe a trespasser a duty under s.1 (3) OLA 1984?
a) the occupier is aware of the danger or has reasonable grounds to believe it exists
b)the occupier knows or has reasonable grounds to believe that trespassers are/ might be in the vicinity of danger
c) It is reasonable to expect the occupier to offer some protection from the dangers
What case failed s.1 (3) (a) OLA1984 the occupier is aware of the danger or has reasonable grounds to believe it exists (subjectively judged)?
Rhind
The D occupier did not know of a submerged fibre glass container resting on the bottom of a lake on its premises. C ignored a notice stating “private property strictly no swimming” and jumped into the lake and was injured by the object. Applying S.1 (3) (a) OLA 1984 meant the occupier did not owe a duty as the occupier was not aware of the danger.
What case failed S.1 (3) (b) OLA 1984
The occupier knows or has reasonable grounds to believe that trespassers are/ might be in the vicinity of the danger?
Higgs
A police officer entered Ds property to carry out surveillance. He went into Ds yard and fell into an uncovered inspection pit. C was deemed a trespasser. As although the occupier knew the pit was a potential danger, they could not anticipate the Cs presence on the premises. The occupier did not have reasonable grounds to suspect that the trespasser might come within the vicinity of danger
What case failed S.1 (3) (b) OLA 1984
The occupier knows or has reasonable grounds to believe that trespassers are/ might be in the vicinity of danger?
Donoghue
D owed a harbour. C was serious injured when he jumped in the sea onto a grid pile which would have been visible at low tide. The accident happened in the middle of winter and in the middle of the night and there was signs forbidding swimming though not in the area C jumped in. CA said D did not owe a duty of care as there was no reasonable grounds to believe someone would jump in the sea in the winter in the middle of the night
What cases failed S.1 (3) (c) OLA 1984
It is reasonable to expect the occupier to offer some protection from the dangers to the trespasser?
Ratcliff
A student climbed the fence to the open air college swimming pool and divided into the pool hitting his head, breaking his neck and becoming permanently paralysed. CA held the occupier was not liable as they were not expected to warn against obvious dangers
Tomlinson
Local authority owned a park including a lake, warning signs prohibited swimming and diving because the water was dangerous. C 18 year old dived into the lake and struck his head and suffered paralysis. HL ruled that the danger arose not because the lake was in a dangerous condition, it was D’s decision to jump into the lake which was dangerous
State the defences available
-consent
-contributory negligence
Warning Notices
Complete defence, can be oral or written
Under S.2(4) OLA 1957 a warning sign is ineffective unless: “in all circumstances it was enough to enable the visitor to be reasonable safe”
-what amounts to sufficient warning will be case dependent
-the effectiveness of a warning sign will also depended on how obvious is and whether the visitor is able to appreciate it
What happened in the case of Rae?
There was a deep pit inside a dark shed. A warning notice by itself was insufficient as it could not be seen, a physical barrrier was required
What happened in the case of Staples?
Wet algae on the wall at the seaside was so obvious that there required no additional signs
What happened in the case of Westwood?
TRESPASSER
C was an employee of the post office and was injured when he entered an unlocked room as a tresspaer that had a sign stating authorised people only. D not liable as that was deemed sufficient enough.
What is the case of Newberry a good example of ?
=Public outcry
D inured C (a trespasser) who burgled his shed. There had been many previous break ins, D had taken to sleeping in shed with shotgun. One morning at around 2 am C attempted to burgle the shed and shouted if you’re in there out bastard, we’re having you. D awoke fired the gun, injuring C in the arm who suffered reduced arm function. Judge deemed D owed a duty of care under OLA 1984 and awared £12,100 in damages but reduced it to £4,033 due to contributory negligence
State a conclusion to Occupiers Liability
Whilst an occupier should try to ensure tat no-one is injured on their premises, suitable rules govern both V and T which makes the law both fair and effective. The OLA 1984 is notably stricter but it is arguably correct for the law to limit the extent of protection afforded to a trespasser when compared to a lawful visitor.
