Occupiers liability - 1957 Flashcards
Who is an occupier? - 1st point
Neither statute provided a definition of an occupier.
However under Section 1(2) it states that common law applies.
One in control
does not have to be the owner and can have more than one
Wheat v E Lacon and co
Wheat v E Lacon and Co - occupier
The claimant and her family stayed at a public house, The Golfer’s Arms in Great Yarmouth, for a holiday. Unfortunately her husband died when he fell down the stairs and hit his head. The stairs were steep and narrow. The handrail stopped two steps from the bottom of the stairs and there was no bulb in the light. The claimant brought an action under the Occupiers Liability Act 1957 against the Brewery company, Lacon, which owned the freehold of The Golfer’s Arms and against the Managers of the Pub, Mr & Mrs Richardson, who occupied the pub as a licensee.
Held:
Both the Richardsons and Lacon were occupiers for the purposes of the Occupiers Liability Act 1957 and therefore both owed the common duty of care. It is possible to have more than one occupier. The question of whether a particular person is an occupier under the Act is whether they have occupational control. Lacon had only granted a license to the Richardsons and had retained the right to repair which gave them a sufficient degree of control. There is no requirement of physical occupation. However, it was found that Lacon was not in breach of duty since the provision of light bulbs would have been part of the day to day management duties of the Richardsons. Since the Richardsons were not party to the appeal the claimant’s action failed.
More than one occupier
“wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an “ occupier “ and the person coming lawfully there is his “ visitor “: and the “ occupier “ is under a duty to his “ visitor “ to use reasonable care
Harris v Birkenhead Corporation - occupier
Harris was an infant plaintiff who brought an action against Birkenhead Corporation for damages for the personal injury she had suffered as a four-and-a-half year-old when she fell out of a second floor window and suffered serious injuries. The property was in a clearance area and the corporation, by way of process, usually brick up the ground floor access areas to prevent it being from vandals after they have served notice on the tenant and it is vacant. In this case, they had served notice on the tenants and one of whom left without informing the local authority. On this basis, the corporation had not secured the building and vandals had smashed the window that Harris had fallen out of as a child. In the first instance, the trial judge ruled in favour of the plaintiff which the corporation appealed on the basis that the window presented a dangerous situation.
Issues
It was important for this case to establish at which point the local authority and corporation became the occupier of the property. The appeal from the corporation only became relevant if it was found by the Court of Appeal that the corporation was not liable to the plaintiff for the damage.
Decision/Outcome
The court held that the local authority was the legal occupier as they had asserted their right to control the property. Moving forwards, after a service of notice of entry is served to a tenant, the relevant authority becomes the legal occupier. On this basis, the authority was liable for the damage caused to Harris.
Occupier is the person in control
Bailey v Armes - occupier
The D’s lived in a flat above a supermarket. They allowed their son to climb out of the window and play on the roof but forbade him to take anyone else out there. The supermarket knew nothing of the use of the roof. The boy took a friend who was subsequently injured. The court decided that neither the supermarket nor the defendants were liable.
No claim if control cannot be established
Wheat v E Lacon and Co - four categories of occupier
- If a landlord lets premises then the tenant will be the occupier
- If a landlord who lets part of the building retains certain areas then the landlord will be the occupier of the areas
- If an owner allows a person to use premises but reserves the right of entry i.e. rent a room, then the owner remains the occupier
- if contractors are employed to carry out work the owner will remain the occupier, although there may be circumstances where the contractor could be the occupier
What is a premises?
Occupiers of premises owe a duty of care
Again there is no definition of premises, under Section 1(3) it states that the term includes not only land and buildings but also fixed or movable structures that include vessels, vehicles and aircraft
How does the act define a visitor?
A person will be a visitor if he or she has expressed or implied permission, it sets out the duty of care owed to lawful visitors
Expressed permission
A person has expressed permission if they have actively gained permission to be in a place, i.e. asking to enter, permission can be withdrawn
Implied permission:
A person mat not have express permission but may still be classed as a visitor if the courts decide that they had implied permission. The police, the fire brigade, need to gain access to read gas, sales people
Lowery v Walker - frequent entry with no objection is implied permission
Common Duty of care
Section 2(1) states that an occupier of premises owes a common duty of care to visitors of those premises. Section 2(2) defines the common duty of care as:
‘…the duty 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 purpose of which they are invited or permitted by the occupier to be there’
Applies when they are using it for the intended purpose
Scrutton LJ:
When you invite a person into your house to use the stairs, you do not invite him to slide down the banisters
Laverton v Kiapasha Takeaway Supreme
The D owed a small takeaway shop, they had fitted slip resistant tiles, and used a mop to mop if it had been raining. When the claimant visited it was busy and had been raining, she slipped and broke her ankle. Shop owners had taken reasonable care to ensure customers were safe and did not have to make the shop completely safe.
Reasonable care was taken
Dean and Chapter of Rochester Cathedral v Debell
The claimant tripped and fell over a small lump of concrete protruding two inches from the base of the traffic bollard close to Rochester cathedral, it had previously been slightly damaged by a car
The CofA decided that:
tripping falling and slipping are everyday circumstances, no occupier of a cathedral premises could ensure all surrounding roads were safe. make sure it is reasonably safe not guarantee safety
The risk is reasonably foreseeable only when there is a real source of danger, which is reasonable person would recognise as the occupier needing to take remedial action
Cole v David Gilbert, The Royal British Legion
The claimant was injured when she trapped her foot in a hole where a maypole had previously been in place. She argued that the owner of the village green had a duty to ensure that visitors were safe, and had failed to fill the hole and maintain the green. She won at first instance but failed at CofA, since her injury occured 2 years after the maypole was removed the duty could not last that long. Pure accident
Duty does not cover accidents
Duty to children
The 1957 act gives guidelines as to how the duty of care operates in certain situations or towards categories of people.
Section 2(3)(a) states that an occupier must:
‘must be prepared for children to be less careful than adults’ so the premise must be reasonably safe for a child
occupier should guard against any ‘allurement’ or attraction which puts the child at risk
Glasgow Corporations v Taylor
A 7 year old ate poisonous berries in a botanical garden, and died as a result. The shrub was not fenced off in any way, the court held that the occupier should have expected the berries may naturally attract a young childs interest. Allurement may place a child at risk
