Occupiers' Liability Flashcards
Who is an occupier?
Wheat v Lacon: Landlords can be occupiers - if a person has sufficient control to give rise to a duty, it is enough.
You can also have multiple occupiers.
Juj v John Lewis - Man trips over curb in car park. JL did not have enough control as they didn’t have power to put up signs - council owned the car park.
Shtern v Cummings: Owner of land of a hotel and controlling shareholder is not an occupier to the extent that they are responsible for a faulty fridge - management of hotel might be.
Wheat v Lacon
Man falls down stairs in pub.
Pub owned by D, who let it out to X and Y.
Held that D had duty to take care of the common parts such as the staircase, however here no breach since although no handrail, there was light and it wasn’t their fault that lightbulb was removed by an unknown stranger.
An occupier is someone who has a sufficient degree of control, such that he ought to realise that any failure on his part to take care may result in injury.
Who is a visitor under 1957 Act?
s1(2): Common law invitees or licensees
Spearman - a person who is a lawful visitor does not cease to be one until they leave the premises. If they make a mistake and go the wrong way, that does not make them a trespasser.
If they blatantly ignore a sign saying ‘no entry’ or do something outrageous, Kolasa more likely to apply and they become a trespasser.
Tomlinson - Ignoring a ‘no swimming’ sign changes his status to a trespasser.
Duty of care in 1957 Act
s2(1): Common duty of care owed, can be extended or restricted by agreement or otherwise.
s2(2): This duty is to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
Objective standard, finding of fact in every case.
S1(1) and Fairchild - The duty concerns the state of the premises, not what is going on within the premises.
Assessment in the round under 1957 Act
Tomlinson: Assess all circumstances of the case, including things such as the social utility of D’s actions, likelihood of the risk, seriousness of risk, and the burden imposed on D by finding a breach.
Generally no duty to protect against obvious dangers.
Cook v Swansea Council (1957 Act)
Reactive system of gritting ice (only doing so in severe bad weather or where there were complaints) was a proportionate response, reasonable in circumstances.
Constant gritting would be disproportionate, so would be closing the car park in bad weather.
Cs known vulnerabilities may alter the standard under 1957 Act s2(3)
Pollock v Cahill: C was blind and fell through open window in the night. This was an obvious risk no matter whether C was blind.
English Heritage v Taylor (1957 Act)
C fell down slope when visiting castle, held they should have had warning signs.
D claimed this would result in defensive practice with other heritage sites needing to place ugly warning signs. Held that the risk of defensive practice is not decisive, they were liable.
James v White Lion Hotel (1957 Act)
C behaving stupidly does not rule out breach of duty, D must account for what C would know about risks and how they might behave.
If it is clear that something is foreseeable and likely and the cost of preventative measures is low, breach possible.
Debell
Whilst there must be a reasonable foreseeability of harm, not all foreseeable risk creates liability - judge must decide whether danger is sufficiently serious.
The concrete here was extremely small, did not pose a real danger.
Duty does not extend to preventing everyday trips and slips where there isn’t a real source of danger.
Effect of children (1957 Act)
s2(3)(a): an occupier must be prepared for children to be less careful than adults
Phipps v Rochester: 5 year old falls into a trench. D was entitled to expect that children would be accompanied by adults - burden of ensuring child’s safety primarily lies with parents.
Jolley v Sutton: Foreseeable risks different when dealing with children - children may endanger themselves.
Here, foreseeable that children would play on the boat, and only the type of harm needs to be foreseeable not the exact way in which it happens, so D liable even where boat fell on teenage boys repairing it.
Special skills (1957 Act)
s2(3)(b): Occupier may expect that a person in exercise of his calling will appreciate and guard against special risks incident to it
Roles v Nathan: Two sweeps, warned by D of carbon monoxide risk, return at night and suffocate.
Held this was the sort of risk they should guard against. They were aware of dangers of the trade and informed of the risk.
Warnings s2(4)(a)
Regard to be had to warnings.
Warning does not absolve liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe.
Darby: Breach of a duty to warn against one risk (water-borne illness) does not result in liability if that risk isn’t the one which materialises. No duty to warn against obvious risk of drowning.
Independent contractors
s2(4)(b): if damage caused by faulty IC work, discharges common duty of care if reasonable to employ contractor, plus reasonable steps taken to ensure contractor is competent and work had been properly done.
Haseldine v Daw: Elevator was inspected and fixed by engineers - you can’t punish D who acted appropriately, having no technical skill himself.
Naylor v Payling: C injured when IC bouncer threw them out of the club. No general duty to check an IC is insured, maybe a particular duty where D owes a statutory duty to insure themselves?
AMF v Magnet: IC failed to install flood protection. D may have to employ a further IC to check the work of the first.
Establishing a duty under 1984 Act
Only owed if all s1(3) requirements are satisfied
s1(3)a: D must know, or have reasonable ground to know the danger exists
s1(3)b: D knows (or ought to know) that C will be in the vicinity of the danger
s1(3)c: Reasonableness of offering protection is a question of fact in each case
Duty owed in 1984 Act
Duty of ‘common humanity’
s1(4): Occupier owes duty to take such care as is reasonable in all circumstances to see that the other person does not suffer injury by reason of the danger concerned
Donoghue v Folkestone Properties
Professional diver trespasses into D harbour, breaks neck.
Held: Assessment of s1(3) factors happens at the moment of harm. No duty considering moment of injury.
D had no reasonable ground to believe trespassers would be diving in harbour at 1am in December (if in Summer, would be different)
Keown v Coventry
C climbed fire escape for fun, thus the risk was not caused by something on the premises as required by s1(1), but was caused by his own dangerous activity. He knew his act was dangerous, D shouldn’t have to insure against it.
Who is caught by 1984 Act?
Those who are not visitors - so those who do not have permission.
Kolasa - Claimant was a visitor when he arrived at hospital, but climving over the wall changed his status to that of a trespasser.
So using premises for purposes other than what you are permitted for makes you liable for this act.
Easy to identify when someone trespasses and is clearly not allowed there at all, ie Tomlinson.
Effect of warnings in 1984 act s1(5)
Warnings key part of discharging duty but are focused on the ‘danger concerned’, so generic ‘Keep Out’ sign likely insufficient.
Warnings alone insufficient if routinely ignored - Tomlinson.
Tomlinson v Congleton BC
Ignoring no swimming signs rendered man a trespasser.
Man ignored no swimming signs, dived in lake and broke neck.
Held council had no liability, no duty to guard against clearly obvious risks which have been warned and ignored.
Claimant’s injuries not due to the state of the premises, but due to the risk he decided to take. We should stem compensation culture.
Brown v South West Lakes Trust
The fact that a car left the highway at a sharp bend and went through fences and into a reservoir did not mean that there was anything in the ‘state’ of the reservoir which posed a danger. The danger arose because her car travelled through the fence and into it.
She was a trespasser under 1984 Act, and also this was not a risk for which the occupiers could be expected to protect her.
Ratcliff v McConnell
D offered reasonable level of protection by providing 7 foot fence, locked gate and prohibition of pool use in night-time hours.
Exclusion and restriction of liability in 1957 Act
Permitted (s2(5))
Limits provided by UCTA 1977 and CRA 2015.
Cannot exclude or restrict liability for death or personal injury due to negligence (s2(1) UCTA and s65(1) CRA), and restrictions subject to standards of reasonableness or fairness (s11(3) UCTA and s62 CRA)
But neither applies to ‘recreational or educational’ (UCTA s 1(3)(b)); or ‘recreational’ (CRA s 66(4)) visitors…unless it was within the business purposes or purpose of the trader’s business, craft or profession
Exclusion/restriction in 1984 Act
Act is silent on this.
Thus, do trespassers get greater protection than visitors?
General defences in each act
OLA 1957 s2(5) and OLA 1984 s1(6) preserve volenti
1957 Act silent on contributory negligence but allowed in practice.
Also available under 1984 Act.
Recoverable damages
1957 Act allow claims for personal injury and damage to personal property and consequential losses on this (AMF v Magnet)
1984 Act - Personal injury included, but under s1(8) no liability for loss or damage to property.
Principles from s1(1) 1957 and 1984 acts.
Both acts focus on dangers inherent in the state of the premises or things done or omitted to be done on or to them.
They don’t concern activities on the property, which is covered by negligence - affirmed in Fairchild.
