Occupiers liability, 1957 Act Flashcards
What is occupiers liability?
Occupiers’ liability may be thought of simply as an aspect of the tort of negligence, whereby defendant occupiers can be held liable under OL legislation for injury to the person (or sometimes to property), caused by their failure to take reasonable care with regard to ‘the state of the premises.’
When therefore may an occupier be liable?
An occupier of a premises may be liable in tort to a claimant who, whilst on those premises, suffers personal injury or property damage because the premises are in a defective or dangerous condition.
What is at the heart of OL?
Responsibility for the risk of injury, whos is to be held responsible?
the D occupier, or the C visitor/ trespasser.
The common law was largely replaced by a statutory regime of occupiers’ liability comprising two statutes, what are they?
- the Occupiers’ Liability Act 1957
- the Occupiers’ Liability Act 1984
What does the Occupiers’ Liability Act 1957 regulate?
In summary, the 1957 Act regulates the duties owed by an occupier to “visitors” to his or her premises
Therefore, under the OL 1957 act, what does an occupier owe?
An occupier owes a single duty to all lawful visitors, irrespective of their purpose in entering the premises.
What did Lord Denning state in Roles v Nathan regarding the 1957 act?
‘[T]he 1957 Act has been very beneficial. It has rid us of those two unpleasant characters, the invitee and the
licensee, who haunted the courts for years, and it has replaced them by the attractive character of the visitor who so far has given no trouble at all.’
(Per Lord Denning in Roles v Nathan).
Which section of the OL 1957 act governs this central principle of the act?
S2(1) OLA 1957
What does S2(1) OLA 1957 state?
“An occupier of premises owes the same duty, the ‘common duty of care’, to all his visitors . . .”
What is the scope of OLA 1957, what does the statute govern?
The Act covers both personal injury caused to a visitor and damage to his or her property.
In regard to property, when will the 1957 act not apply?
The Act does not, however, apply to property which is outside the boundaries of the premises.
The Act is thought to apply only to the “occupancy duty”, what does this mean?
It is unlikely that every careless act or omission which causes loss to a visitor on an occupier’s premises will give rise to a claim under the Act.
Thus, if a visitor is walking up the occupier’s drive and is injured by a carelessly driven car, he or she will not sue under the Act, but in ordinary common law negligence.
This is because the duty of care he or she is owed has nothing to do with the fact that the accident happened on the occupier’s premises.
In establising a claim in OLA 1957, what issues require consideration?
· Who is/are the ‘occupier’ (s)?
· Is the claimant a ‘visitor’?
· What might be regarded as ‘premises’?
· What is the ‘common duty of care’?
· Has the common duty of care been breached?
(i) Who is the occupier (O)
(i) Who is the occupier (O)
How do we define an occupier?
Does the 1957 Act provide a statutory definition?
What provision in the 1957 act tells us where to turn too?
No, the 1957 Act does NOT provide a statutory definition,
Section 1(2) of the Act states that an “occupier” is simply a person “who would at common law be treated as an occupier”.
S1(2) of the Act does not provide a statutory definition of occupiers, but instead refers to the old common law rules on identifying an occupier.
In defining an occupier, what is the leading authority?
Wheat v Lacon [1966]
What was stated by Lord Denning in Wheat v Lacon [1966] which defines an occupier of a premises?
‘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’.
Thus, who is an occupier?
A person will be an ‘occupier’ if he or she has a sufficient degree of control over the state of the premises.
A person need not have a legal estate in land to be the ‘occupier’ of that land, nor need he or she have a right to exclusive possession.
Outline the case facts in Wheat v Lacon [1966]
- The defendants, a brewery, owned a public house.
- They allowed the publican and his wife, Mr and Mrs Richardson, to live in accommodation above the pub, not as tenants, but as mere licensees.
- The brewery had given Mrs Richardson permission to take in paying guests in part of the upstairs accommodation (essentially as managers to the house), access to which was gained by an outside staircase. - The staircase was dangerous because its handrail did not go all the way to the bottom, and because it was unlit.
- One evening, the plaintiff’s husband, who was a paying guest, fell down the staircase and was fatally injured.
- The plaintiff sued the brewery under the 1957 Act, and the question arose whether the brewery were “occupiers” of the private part of the building.
What was held in Wheat v Lacon [1966]?
The House of Lords held that, in the circumstances, both the brewery and the Publican and his wife to occupiers to the premesis as they both held a sufficient degree of control over the premises.
Two important points, then, emerge from the decision in Wheat v E Lacon, what were they?
- That there can be more than one occupier of premises.
- And, the occupier not always need be the owner of the premises.
However, what must I remember which was the outcome in this case?
However, remember, just because you can deem someone an occupier does not deem them liable.
On the facts, neither the Richardsons nor the brewery had fallen below their respective standards of care.
The short handrail did not by itself make the staircase unreasonably hazardous, and they were not responsible for a stranger having caused it to become unlit by removing a light bulb.
In all cases, the key question for the courts is not whether a person is in actual occupation of the premises, but whether he or she exercises control over the premises. This is clear from the decision in which later case?
Harris v Birkenhead [1976]
In Harris v Birkenhead [1976], who was determined to be the occupier of the premesis?
The defendant local authority was to be regarded as ‘occupier’
- its actions of serving a notice on the tenants requiring them to leave demonstrated ‘sufficient control’ of the property.
Therefore, what did Harris v Birkenhead [1976] demonstrate?
Even empty buildings can have occupiers.
Outline the case facts in Harris v Birkenhead [1976]
- The defendant was a local authority which had made a compulsory purchase order on a house.
- It then served on the owner of the house, and on a tenant who occupied it, a notice of entry under the Housing Acts, which entitled it to take possession of the house within 14 days.
- Eventually the tenant departed, leaving the house uninhabited, but the local authority took no steps to assert its possession of the house.
- A four-and-a-half-year-old child entered the house through an unsecured door and was injured when he fell from a second floor window.
What was held in Harris v Birkenhead [1976]?
- In the Court of Appeal, the local authority argued that before it could be regarded as the “occupier” of the house, there must have been an actual or symbolic taking of possession of the house on its behalf, and that its mere right to take possession was insufficient.
- This argument was rejected.
- On the facts, the Court of Appeal held that the local authority became the occupier as soon as the premises were vacated.
- Although it could not be said that in every case a person with an immediate right to take possession of premises would be an “occupier”, in these particular circumstances, actual physical possession of the premises was not necessary before the local authority could be regarded as having control of the premises.
Which authority also demonstrates that not all owners are occupiers?
Mathewson v Crump [2020]
Outline the case facts in Mathewson v Crump [2020],
- The D who had not yet moved into a recently purchased house did not have ‘sufficient control’ to be an ‘occupier’.
- Bungalow transformation to a two-story house, builders and plasterer in property.
- Plasterer falls to the ground floor, suffering injuries.
- His claim failed as she was not deemed the occupier of the premises.
- Without having moved in, this case suggests one may not be treated as the occupier.
(ii) Who is a visitor
(ii) Who is a visitor
Does S1(2) OLA, provide a statutory definition of a visitor?
No, S1(2) refers to the common law to identify visitors.
How does the common law define a ‘visitor’?
Common law defines a ‘visitor’ as someone who has express or implied permission to be on the premises.
In cases where the occupier has expressly given permission to enter, the matter is straightforward.
In other cases, the law will sometimes say that an occupier has given implied permission for a person to be on the premises.
Which authority demonstrates implied permission?
Robson v Hallett [1967]
What did Lord Parker state regarding implied permission in Robson v Hallett [1967]?
‘…the occupier …gives implied [permission] to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of his house.’
Thus, what does Robson v Hallett [1967] tell us?
It is clear that a person who enters premises in order to communicate with the occupier will be treated as having the occupier’s implied permission to be on the premises. Thus, a postman or other individual has implied permission to walk up the occupier’s drive to use the letterbox, or to call at the front door, unless he or she knows, or ought to know, that this is expressly forbidden (for example, by a sign posted on the gate).
Which authority also demonstrates implied permission?
Lowery v Walker [1911]
Outline the case facts in Lowery v Walker [1911],
- The plaintiff was using a short-cut across a farmer’s field when he was attacked by a horse.
- The farmer knew that the short-cut had been regularly used by the public for the past 35 years, and had protested about this, although he had never brought legal proceedings.
- Despite these protests, it was held that the farmer had given implied permission for people to use the short-cut.
- The plaintiff could therefore be classified as an implied licensee and was able to succeed in his claim.
Why was such outcome reached in Lowery v Walker [1911]?
- Due to the non exisance of the 1984 act and extremely limited protection afforded to trespassers.
- Query the status of Lowery v Walker following the enactment of the Occupiers’ Liability Act 1984
(below)? It is fair to say the courts are now far less likely to find an implied licence.
Under what section of the act are permissions by the law concerned?
S2(6)
Under S(2)6 how are individuals, with permission by law, treated upon entry of a premesis?
By S2(6) of the Act, persons entering premises in the exercise of a right conferred by law, for example firemen attending a fire, or policemen executing a warrant, are treated as if they had been given permission to enter by the occupier.
Strictly speaking, such cases are not cases of implied permission, but of deemed permission, because these persons are treated as visitors even where the occupier expressly states that he or she does not want them on the premises.
Limits on Permission (Express or implied)
Limits on Permission (Express or implied)
What is understood by limits on permission?
The permission given by an occupier, whether express or implied, may be limited in three ways.
A visitor who exceeds his permission to be on the land loses his visitor status and becomes a trespasser.
What are the three ways in which permission may be limited?
First, the occupier may permit a person to be in some parts of the premises but not others.
Secondly, the occupier may permit the person to remain on the premises only for a certain period of time.
Thirdly, the occupier may permit the person to be on the premises only for certain purposes.
Difficulties arise when visitors stray from the permitted area, which authority demonstrates this?
Gould v McAuliffe
Outline the case facts in Gould v McAuliffe
- In Gould v McAuliffe, a customer in a pub, looking for an outside lavatory, wandered through an unlocked gate into a private part of the premises where she was attacked by a dog.
What was held in Gould v McAuliffe?
The argument that she had become a trespasser was rejected.
- It was held that where an occupier wishes to exclude a visitor from an area into which visitors are likely to wander, he or she must take reasonable steps to inform the visitor that the area is out of bounds.
- On the facts, because there was no notice informing the plaintiff that the area beyond the gate was private, this had not been done.
- Whether it is necessary to post a notice excluding visitors from a particular area will, of course, depend on the facts of each case.
- Such a notice will not be necessary in respect of a part of the premises to which no one would reasonably expect a visitor to go.
Difficulties also arise where a person doesnt act in accordance with the purpose which granted them permission, which authority demonstrates this?
Calgarth [1927]
What did LJ scrutton state in the Calgarth case regarding purpose and permission?
“When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters.”
What is understood by this statement?
Thus, where a person is invited for one purpose (to sleep in a bed) and starts to pursue an activity unrelated to that purpose (jump up and down on the mattress), that person may cease to be a visitor, even though he or she has not strayed from the permitted area.
Calgarth is analogous to which further cases?
Geary v Wetherspoons and the Keown case.
Does intention have a role in determining whether C was a trespasser in regard to permission?
What is the leading authority which provides us an answer?
Herrington v BRB [1972]
What is stated in Herrington v BRB [1972]?
‘The term ‘trespasser’ is a comprehensive word: it covers the wicked and the innocent: the burglar, the arrogant invader of another’s land, the walker blithely unaware that he is stepping where he has no right to walk, or the wandering child - all may be dubbed as trespassers.’
What does this statement suggest?
- Now, following Herrington, we know it covers ‘the wicked and the innocent’ suggesting intention does not matter, what the claimant thought does not appear to matter.
- It is a purely objective approach, did you have permission or did you not.
Which authority demonstrated confliction with Herrington v BRB [1972]?
Spearman v Royal United Bath Hospital [2017]
Outline the case facts in Spearman v Royal United Bath Hospital [2017]
Mentally impaired patient left the treatment area of a hospital in an attempt to leave and fell from a flat roof.
What was stated in Spearman v Royal United Bath Hospital [2017] which caused confusion?
‘Whether a person is or is not a trespasser is not solely determined by whether the place where they are is or is not an “authorised” place, a person’s state of mind and intention is an important additional factor.’
‘C was mentally disturbed and did what he did as a result of a genuine and honest mistake… it being wholly foreseeable that confused, and mentally unstable patients would be …visitors to the department.’
Overall, what was held in Spearman v Royal United Bath Hospital [2017]?
He was treated as a visitor.
The judgement stated the persons state of mind and intention were important additional factors to determine someone as a visitor or trespasser.
Which two authorities however then dismiss this judgement established in Spearman?
- Cf Kolasa v Ealing Hospital NHS Trust [2015]
- Ovu v London Underground [2021]
Outline the case facts in Cf Kolasa v Ealing Hospital NHS Trust [2015],
- C wandered from the treatment area to get fresh air and fell from a raised ambulance bay.
What was held in Cf Kolasa v Ealing Hospital NHS Trust [2015]?
Held C was a trespasser, he could not rely on the fact of his intoxication to argue that he did not realise he was not authorised to be there.
Outline the case facts in Ovu v London Underground [2021],
- C suffered a fatal fall down two flights of stairs.
- He had left the platform + passed through a barrier clearly demarcating where he was permitted to be
What was stated and held in Ovu v London Underground [2021]?
‘The reference …to a person’s state of mind and intention being an important additional factor must be read in that light on the facts of Spearman and cannot be read in my view as intending to import a broad notion of intentionality into the law of trespass.’
He was treated as a trespasser.
(iii) Premises
(iii) Premises
Under what section of the 1957 act is a premises not defined however insructed to include?
S1(3)(a)
How is a ‘premesis’ defined under the OLA 1957?
There is no explicit definition of “premises” in the Act,
However,
S1(3)(a) OLA 1957 refers to premises as including ‘any fixed or moveable structure, including any vessel, vehicle or aircraft.’
Through case law, what constitutes to a premises?
Case law has established that “premises” covers not only land and buildings, but also such structures as lifts, ladders, diving boards, scaffolding and even large digging machines.
Outline the authority which suggests fire escapes amount to a premesis?
Keown v Coventry Healthcare NHS Trust [2006]
Outline the authority which suggests mountains amount to a premesis?
Simkiss v Rhondda BC [1983]
Outline the authority which suggests splat walls amount to a premesis?
Gwilliam v West Hertfordshire Hospital NHS Trust [2002]
Outline the authority which suggests bouncy castles amount to a premesis?
Perry v Harris [2008]
Outline the authority which suggests small objects such as ladders can amount to a premesis?
Wheeler v Copas [1981]
ALL ABOVE - PRELIMINARY ISSUES
ALL ABOVE - PRELIMINARY ISSUES
How should i deal with the preliminary issues in a tort exam?
- Occupier and premesis are likely to be dealt best in regard to time at the outset of the question below and incredibly brief introduction.
- State in small paragraphs who the occupiers are and what will count as premesis within the question.
- I think it personally makes sense the then deal with the parties working through visitor, the common duty of care and then breach for each individual.
(iv) The common duty of care
(iv) The common duty of care
How does the OLA 1957 define the common duty of care?
Section 2(2) of the Act defines the “common duty of care” as follows:
“The common duty of care is a 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 purposes for which he or she is invited or permitted by the occupier to be there.”
What is important to note regarding the common duty of care?
- Note that the duty is to keep the visitor reasonably safe, not the premises.
- This therefore varies depending on the visitor within the circumstances
- This common duty of care does not require perfection, only reasonable safety.
Under OLA 1957, must we establish a DOC?
- This duty springs automatically.
- A DOC arises automatically in the 57 act.
Thus, when is an occupier liable?
In this regard, it should be noted that liability under the Act can arise where an occupier merely fails to protect a visitor from a danger on the premises. The occupier does not need to have created that danger in order to be liable.
This is when they are in breach of their common duty of care.
Are there any limitations on the common duty of care?
How am I expected to deal with it within a problem question?
Yes, there are some situations which the common duty of care will not apply at all and where there would not be a claim.
Coming across one of these however does not mean you leave you answer here, you would still continue in light I may be wrong and the courts may still deem the issue engaged.
What is the first limitation on the common duty of care which will consider the defendant occupier to not have been in breach of their duty?
The Act is not ‘engaged’ where the danger is attributable to what the claimant chose to do
What is understood by this limitation?
That were there is an extremely obvious risk, and the claimant decides to take that risk regardless, there may not be a common duty of care owed by the occupier.
Which case is the leading authority for no common duty of care resulting from someone engaging in an obvious risk?
Darby v National Trust [2001]
Outline the case facts in Darby v National Trust [2001],
- A man drowned while swimming in a deep and murky pond on D’s property
- His wife sued under the Occupiers Liability Act 1957 (OLA 1957) on basis that signs stating ‘no swimming’ should have been erected.
What was held in Darby v National Trust [2001]?
COA Held the common duty of care did not extend to a requirement to warn visitors of obvious risks, the danger arose from what he had chosen to do, not because of the state of the premesis.
The resppnsibility was placed on the Husband,
Adults should know the risk of entering a body of water in which you cannot see the bottom.
What is the second limitation on the common duty of care which will consider the defendant occupier to not have been in breach of their duty?
The Act is concerned with negligence regarding the ‘state of the premises’ (the occupancyduty) and not D’s negligent activities!
Negligence causing injury which is not concerned with ‘the state of the premesis’ will concern a normal common law negligence claim, not a claim under OL.
Which case is the leading authority for no common duty of care resulting from someone negligent activity on a premesis causing injury as opposed to the state of the premesis being the cause of injury?
Ogwo v Taylor [1988]
What is the third limitation on the common duty of care which will consider the defendant occupier to not have been in breach of their duty?
The occupier can exclude (some of their) liability under the 1957 Act.
How may an occupier exclude liability under the 1957 act?
- Ds can sometimes exclude their liability by signs, exclusion clauses etc.
- They are then effectively precluding the effects of the 1957 act and the common duty of care will not be engaged.
Outline the case facts in Ogwo v Taylor [1988] and what was held.
- Firefighter injured when the D occupier negligently used a blowtorch and started a fire, the firefighter was injured whilst tackling the fire.
- This claim does not fall under the 57 act; common law must be used.
- This regards the negligent conduct of the D on the land, not the state of the premises.
What is particularly important regarding children under OL cases?
Allurements
The ‘Common Duty of Care’ as applied to Special Visitors: Children
The ‘Common Duty of Care’ as applied to Special Visitors: Children
Which case is the leading authority for understanding the doctrine of ‘allurement’ - i.e., something alluring or tempting but known to be dangerous if meddled with.
Glasgow Corporation v Taylor [1922]
Which section of the 1957 act suggests an enhanced duty of care/ differential treatment toward children?
S2(3)(a)
What is understood under S2(3)(a)
A reminder to the occupier that children are naturally inquisitive and blind to risk
Children often fail to appreciate dangers that are obvious to adults. Their natural curiosity often leads them into dangerous situations. In discharging his or her duty of care, therefore, an occupier must bear in mind that children tend to be attracted to certain objects, unaware that they are dangerous.
- Results in a raised standard of care!
The common duty of care therefore varies dependant on the visitors
What does S2(3)(a) OLA 1957 state?
S2(3)(a) - ‘an occupier must be prepared for children to be less careful than adults.
Outline the case facts in Glasgow Corporation v Taylor [1922]?
- The father of a seven-year-old boy sued the Glasgow Corporation for damages following the death of his son who died as a result of eating berries from a poisonous plant that was growing in the Botanic Gardens in Glasgow.
- The gardens were open to the public and managed by the defendant. The father argued that the defendants allowed children to pass through their grounds frequently yet did not take any action to warn or alleviate the danger caused by the poisonous plant to children.
- The plant was enclosed by a wooden fence which was open to the public and easily accessed by children.
- It was known to the Ds that the berries were ‘alluring and tempting to children…but deadly poisonous
what was held in Glasgow Corporation v Taylor [1922]?
what did Ds liability rest upon?
D’s liability rested upon the concept of allurement, because they know such berries may seem allluring to children, and where children were present, they should have taken greater measures to ensure a child of such age could remain reasonable safe on their premesis.
What is the definition of the concept of allurement? Defined by Lord Atkin,
‘Their knowledge that by their action they may bring children of tender years, unable to take care of themselves, yet inquisitive and easily tempted, into contact…with things alluring or tempting to them, and possibly in appearance harmless, but which, unknown to them and well known to the defendants, are hurtful or dangerous if meddled with.’
What did we learn from Glasgow Corporation v Taylor [1922]?
- Ought to have taken extra precautions.
- Taylor tells us allurement triggers this raised standard of care.
- It is not entirely clear is allurement is additional to the statute or just expected understanding.
- Carelessness of children should be held in consideration.
What is another leading case authority in regard to allurement?
Jolley v Sutton LBC [2000]
Outline the case facts in Jolley v Sutton LBC [2000]
- The council allowed an old wooden boat, which was an enticing play area for children, to be left abandoned on its land. - A 13-year-old boy (Jolley) and his friend had attempted to repair the boat to take it to Cornwall to sail, and Jolley had been injured when the boat, which had been jacked up, fell on him.
What does the law provide that an occupier is entitled to presume?
The law provides that an occupier is entitled to assume that the behaviour of very young children will be supervised by a responsible adult.
What was held in Jolley v Sutton LBC [2000]?
- The council overall were held to be in breach of their common duty of care
- Overturning the Court of Appeal decision which had held the activities of the boys too remote a consequence of breach, the House of Lords took the view that the courts should not underestimate the ingenuity of children in finding unexpected ways of doing mischief to themselves and others.
- On this basis, their Lordships restored the view of the trial judge that the type of accident and injury which occurred was reasonably foreseeable in the context of teenage boys attracted to an obviously abandoned boat.
What does the decision in Jolley v Sutton LBC [2000] make clear for us?
- The decision in Jolley, then, makes it clear that the courts will apply the rules of occupiers’ liability generously towards children, particularly in relation to serious personal injury.
However, what does this not mean?
However, an occupier will not be liable for every action of a child on his or her premises.
This is especially true in the case of very young children, for whom even the most innocuous objects on premises may present a danger.
An occupier cannot be expected to ensure that his or her premises are as safe as a nursery for any visiting toddler.
What is the leading authority regarding parental responsibilities and children?
Phipps v Rochester [1955]
Outline the case facts in Phipps v Rochester [1955]
- In Phipps, the plaintiff was a five-year-old boy.
- Accompanied by his sister, aged seven, he went out collecting blackberries on a large open space and fell into a deep trench, breaking his leg.
- The trench, which would have been an obvious danger to an adult, had been dug by the defendants, who were developing the site.
- Devlin J, after reviewing the relevant authorities, concluded that where children of “tender years” were concerned, an occupier was entitled to consider how a prudent parent or guardian of the child should behave.
What was held in Phipps v Rochester [1955]?
The D occupiers were not liable for the trench they left open because the primary responsibility for little children is with the parents.
What matters are relevant in consideration of whether or not an occupier is entitled to expect that very young children on his or her premises will be accompanied by an adult?
Essentially, two matters are relevant, namely the age of the child and the nature of the premises.
What was states Per Devlin J?
Per Devlin J: ‘the responsibility for the safety of little children must rest primarily upon the parents; it is their duty to see that such children are not allowed to wander about by themselves, or at the least to satisfy themselves that the places to which they do allow their children to go unaccompanied are safe…’
Why is this the case?
“It would not be socially desirable if parents were, as a matter of course, able to shift the burden of looking after their children from their own shoulders to those of persons who happen to have accessible bits of land.
What would a prudent parent have done in the circumstances?
What is the duty of occupiers in such situations?
- A prudent parent would not have allowed two small children to roam over the site unaccompanied and so the occupiers of the site escaped liability.
- Their only duty to very young children was to ensure that they were reasonably safe on the site when accompanied by a responsible adult.
Which case suggests that an occupier is required to take account of the social habits of the neighbourhood in which his or her premises are situated?
What does this mean?
Simkiss v Rhondda BC.
Thus, where a piece of land becomes locally recognised as a playground for unaccompanied small children, an occupier must ensure that these children are reasonably safe.
Which leading authority demonstrates the courts may be reluctant to allocate blame to occupiers in cases concerning children and personal injury?
Bourne Leisure v Marsden [2009]
Outline the case facts in Bourne Leisure v Marsden [2009]
- A 2 ½ year-old boy drowned in a pond on a holiday park whilst under the care of his parents.
- The parents of the child sought a claim in occupiers’ liability against the park upon the basis that the pond should have had a barrier or a fence surrounding it, or at least made the danger known to parents on the site.
What was held in Bourne Leisure v Marsden [2009]?
Here the Court of Appeal avoided the binary approach suggested in earlier cases that either the parents or the occupiers were to blame.
The case failed on the basis that it was a pure accident.
What was stated by Moses LJ?
‘Small children can disappear in a moment. Holiday sites will almost inevitably contain sources of danger to small unaccompanied children. Further warnings …could not have made any difference.’
No one could be to blame as the occupiers taking precautions would habve likely resulted in the same outcome unfortunately.
Does the common duty of care ever require constant supervision of children?
Not usually.
Which authority demonstrates that constant supervision of children cannot always be expected by a parental figure?
Perry v Harris [2008]
Outline the case facts in Perry v Harris [2008]
- Unusual case, the D is a private householder.
- A mother rented a bouncy castle for her sons and his friends for his birthday party.
- An older child landed on a younger child’s head.
- A key part is who is responsible.
- Claimant argued the boys mum should have engaged in constant supervision of the children playing on the bouncy castle/
- The HC found the mum liable as an occupier.
- The COA disagreed, too high a standard.
What was held in Perry v Harris [2008]?
The CA concluded: ‘…the judge imposed an unreasonably high standard of care in holding that the bouncy castle required uninterrupted supervision’.
They found constant supervision is not required.
Some questions to consider:
- Query whether higher standard required of businesses?
Potentially, children day cares. - Whilst this activity did not require constant surveillance, some activities would! Such as???
Swimming classes. - Both Perry and Bourne were alert to the potential chilling effects of a finding of liability.
Didn’t wish to require too high a standard, compensation culture, social impact.
Which section of the 1957 act suggests a lowered standard of care/ differential treatment toward a ‘skilled/ professional visitors’?
S2(3)(b)
What is understood under S2(3)(b)?
An occupier may expect that a skilled visitor, employed to undertake work on the premises, will take appropriate precautions against risks ordinarily associated with his or her work.
The subsection does not, of course, cover risks not normally associated with the job.
What does S2(3)(b) OLA 1957 state?
‘An occupier is entitled to expect that a person in the exercise of his calling will appreciate and guard against any special risk ordinarily incidental to it…’
What is the leading authority for such circumstances under S2(3)(b)?
Roles v Nathan [1963]
What else was stated by Lord Denning in this case which clarifies this area of the law?
“When a householder calls in a specialist to deal with a defective installation on his premises, he can reasonably expect the specialist to appreciate and guard against the dangers arising from the defect. The householder is not bound to watch over him to see that he comes to no harm.”
Outline the case facts in Roles v Nathan [1963]
- Two chimney sweeps had been engaged to clean the flue of a boiler and to seal up some vent holes in the flue so that it would operate more efficiently.
- The defendant’s heating engineer had repeatedly warned the sweeps about the dangers of being overcome by carbon monoxide fumes if they worked on the flue while the boiler was lit.
- He gave evidence, however, that the sweeps had been inclined to dismiss his warnings, taking the view that they were the experts and could look after themselves.
- The sweeps completed most of their work, telling the man in charge of the boiler room that they would return to finish the job the following day.
- In fact, the sweeps returned later that evening, by which time the boiler had been lit, and were overcome by fumes while working in the flue.
What was held in Roles v Nathan [1963] and stated by Lord Denning?
O not guilty, no negligence on their behalf because an O can expect a chimney sweep to be aware of such dangers and not take such unnecessary risks.
Lord Denning MR:
‘…The householder is not bound to watch over him to see that he comes to no harm. I would hold, therefore, that the occupier here was under no duty of care to these sweeps, at any rate in regard to the dangers which caused their deaths.’
Does S2(3)(b) give rise to immunity?
No!
What is the name of the case demonstrating however that defendant occupiers in these circumstances may still be liable and why?
In Eden v West & Co the defendants were liable where a carpenter removed a window and the brickwork above it collapsed on him,
the risk of this happening in a modern property was extraordinary and the defendants ought therefore to have warned him that the brickwork was not properly supported.
Which cade demonstrates that S2(3)(b) does not give rise to immunity?
Salmon v Seafarer Restaurants Ltd [1983]
Outline the case facts in Salmon v Seafarer Restaurants Ltd [1983] and what was held?
- D ran a chip shop and negligently left the chip pan on overnight, causing a fire, C firefighter was injured when he attended the scene.
- A claim against the O was allowed even the firefighter has special skills,
- This is because the FF had not fallen short of the skills they possess, no unnecessary risk, FF used their special skills and were still injured by the D negligence.
- The occupier was liable.
In some of these above circumstances, a common duty of care by the occupier may be discharged, in what other circumstance may an occupier fulfil their duty / discharge their duty?
- Giving a warning of the danger
- Entrusting work to independent contractors
(i) Warnings/ warning signs
(i) Warnings/ warning signs
Which section of the 1957 act provides that in deciding whether or not an occupier has discharged the common duty of care, the fact that he or she has warned visitors of the danger is a relevant consideration?
S2(4)(a)
What does S2(4)(a) state?
“The warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe.”
Which authority which is previosuly mentioned demonstrates where a warning will be considered efficient?
Roles v Nathan
Thus, what is understood under S2(4)(a)?
- Not every warning is enough, must enable reasonable safety if to discharge a duty.
- Focus is placed on the visitor again, this may vary on the identity of the visitor.
- A distinction must be drawn between a mere warning of the danger, which offers no assistance as to how to avoid the danger, and a warning which enables the visitor to be reasonably safe.
How?
Lord Denning MR considered that even if he had been wrong about no duty being owed to the chimney sweeps in respect of the risks of carbon monoxide poisoning, the occupiers had discharged their duty of care by giving repeated explicit warnings not to go into the flu chamber - these warnings were sufficient to make the visitor ‘reasonably safe.’
What does this therefore mean?
Where sufficient warnings are given which enable a visitor to remain reasonably safe, and they are simply ignored, a duty may be discharged.
When is a warning NOT enough to make visitors ‘reasonably safe’?
Depends on the context in the circumstances.
- I.E., a warning triangle - with no context, probably not enough.
- Choice makes a difference - if a visitor has no choice regardless of warning, this will not be enough.
- If warnings are for children, written warnings may not help, what if they can’t read, what if it is too complex.
- What if a warning is not well lit of visible?
Subjective in the circumstances and is also dependant on the type of visitor.
Which authority demonstates warnings being insufficient/ a lack of warnign which led to a common duty of care?
English Heritage v Taylor
Outline the case facts in English Heritage v Taylor and what was held
- In English Heritage v Taylor, the key issue for the court was whether allowing visitors to a castle to use an informal path down a steep slope where there was a risk of falling from a height into the moat was an obvious danger or not.
- The court held that it was not an obvious danger and that there had been no warning sign.
- On that basis, English Heritage were found liable.
- If it is not clear if the danger is obvious or not, and there is no warning, liability is likely.
Lord Hoffmann in Tomlinson v Congleton BC argued what?
“A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice . . . or some lack of capacity, such as the inability of children to recognise danger.”
The courts have made it clear that there is no duty to warn irresponsible visitors against dangers which are obvious unless there are other countervailing factors indicating that the occupier has breached their duty of care, which authority demonstates this?
Tomlinson v Congleton BC
Which two authorities demonstated ‘obvious dangers’?
- Darby v National Trust
- Edwards v Sutton LBC
Occupiers not liable.
Secondly, S2(4)(a) refers to a warning given by the occupier, what is understood under this subsection?
Strictly speaking, it must follow that a warning given by someone other than the occupier is prima facie insufficient to discharge the occupier’s duty of care, even if it enables the visitor to be reasonably safe.
May warnings be taken in consideration to other factors within the circumstances?
YES,
Thirdly, it should be noted that the words “without more” raise the possibility that a warning which does not by itself enable the visitor to be reasonably safe might be regarded as sufficient to discharge the common duty of care when taken together with some other factor in the case (the presence of a guard rail, for example).
Thus, what is the question here?
Where a visitor suffers loss because of an independent contractor’s negligent work on the occupier’s premises, the question arises whether the occupier can simply blame the independent contractor and avoid liability.
What must i be careful with in consideration to warnings and exclusion?
NOTE: Be careful to distinguish warnings from exclusion notices! A sign which does not point to a particular hazard is unlikely to count as a warning notice. (See later on exclusion)
Finally, it should be noted that a sign stating that “visitors enter at their own risk” is not a warning at all, but an attempt to invoke the defence of voluntary assumption of risk. Similarly, a sign declaring that “no responsibility is accepted for any loss or damage on the premises” is not a warning, but an attempt to exclude liability.
Discharging duties and exlusions are different, keep them separate.
What is another means of an occupier potentially being able to discharge their duty?
Entrusting work to independent contractors.
What is understood by entrusting work to independent contractors?
Sometimes engaging an independent contractor to deal with a hazard/issuesuffices to discharge the occupier’s duty.
In engaging in an IC, an O may have fulfilled their duties as an occupier under the act.
Under which section of the act does entrusting independent contractors fall?
S2(4)(b)
What does S2(4)(b) state?
Where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, repair or maintenance by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought to satisfy himself that the contractor was competent and that the work had been properly done.
In a broken down manner what does this mean, what are the three elements an O may take to discharge their duty?
In summary, S2(4)(b) provides that where a visitor suffers damage due to “the faulty execution of any work of construction, maintenance or repair” by an independent contractor, the occupier is not normally liable if, in all the circumstances of the case:
▪it was reasonable to entrust the work to an independent contractor;
▪the occupier took reasonable steps to satisfy himself or herself that the contractor was competent; and
▪the occupier took reasonable steps to satisfy himself or herself that the work had been properly done.
Element one, is this contentious?
The first of these requirements has posed few problems for the courts, which appear to have taken the view that it will be reasonable to entrust work to a contractor whenever that work is of a type which is normally undertaken by contractors.
Element two, when will a contractor usually be deemed competent?
As to the second requirement, a contractor will usually be taken to be competent unless the occupier is aware of facts which suggest incompetence (faulty work carried out in the past, for example).
In some circumstances, however, it may be appropriate for an occupier to check a contractor’s competence by doing what?
By seeing that he or she is a member of a relevant trade association, holds relevant qualifications, is suitably experienced and is insured.
Which authority demonstrates the need for insurance to be checked and brief, what occurred?
Such circumstances arose in
Bottomley v Todmorden Cricket Club,
Does taking reasonable steps require the O to check the contractor is insured, yes, which case also demonstates this, and briefly, what occured?
Gwilliam v West Herts Hospital NHS Trust [2004]
- splat wall incident/contractor’s insurance had expired.
- Trampoline negligently set up, personal injury, OL because the contractor’s insurance had expired and therefore the claimant sued the occupier.
- COA suggests link between checking competence and checking insurance.
- Checking insurance provides you took reasonable steps to assure their competence.
What was held in Bottomley v Todmorden Cricket Club?
- The defendants were held liable for the activities of independent contractors providing a fireworks display.
- The hazardous nature of the activity placed the defendants under a duty to take positive steps to check the competence of the contractors, and, in particular, to check whether they were insured.
This case makes an explicit link between the insurance status of the contractor and their competence:
What did Woolf CJ state?
‘The fact of insurance would go to their competence. If the firm did not hold itself out as being insured …suggest that they were unlikely to be a reputable firm…’
In Gwilliam v West Herts Hospital NHS Trust, even though the contractor was not insured, were the defendants liable?
- In an action against the hospital, a majority of the Court of Appeal held that, whilst the hospital had been under a duty to inquire into the contractor’s insurance position, it would have been unreasonable to expect them to actually check his insurance certificate.
- Therefore, by accepting the contractor’s assurances that he was insured, the hospital had discharged its duty of care to the claimant.
What does this therefore tell us?
- Although there was a duty to check insurance in this case, it was a minimalist duty, the O had to simply ask if they were insured, and this was enough to portray reasonable steps.
- No need to see actually evidence of certificates.
- Because the contractor had told them he was insured, this was enough in the circumstance.
Was there any dissent to this judgement and if so, by who?
See dissenting judgment of
Sedley LJ (at [48] onwards)
- there should be no such duty, but if there was, merely enquiring about insurance was not enough.
Opposing opinion because a contractor could lie and say yes when not and therefore further checks should be made.
What do we learn in Naylor v Payling [2004]?
- No ‘free standing’ duty to make enquiries about a contractor’s insurance in every case, but where the work was ‘hazardous’, checking insurance may constitute ‘reasonable steps’ to ensure competence.
- So checks in all circumstances may not be necessary, depending on the type of work.
Which authority however essentially backtracks this element, indicating that insurance checks for competance are not a universal duty?
Naylor v Payling [2004]
Element three, When will the occupier be required to check the contractor’s work?
Some difficulty has arisen in deciding whether and when it will be reasonable for an occupier to inspect a contractor’s work personally, to see that it has been properly done.
This is variable, reasonable steps can mean doing nothing to check the work.
Two matters are relevant in this element, what are they and what do they mean?
Two matters are relevant,
- namely the nature of the work undertaken
- the character of the occupier.
Thus, the more complex and technical the work, the less reasonable it is for the occupier to inspect it in person.
Where, however, the occupier is a specialist company or a local authority, a more detailed inspection may be called for than would be required of a lay person.
Which authority demonstrates where in these circumstances, because an O had not ensured work had been completed properly, they could not avoid liability/ be discharged from their duties?
Woodward v Mayor of Hastings
Which authority demonstrates where in these circumstances, an O can not always be expected to ensure work has been conducted properly where work is technical?
Haseldine v Daw [1941]
Breifly outline what occured in Haseldine v Daw [1941]
- D occupier (landlord of a block of flats) contracted with a reputable company of lift engineers to maintain and repair thelift. - A defect in the lift caused injuries to C when it plummeted to the ground floor with her in it.
- Found to have discharged their duty.
- No liability
Breifly outline what occured in Woodward v Mayor of Hastings
- In Woodward v Mayor of Hastings, a pupil was injured when he slipped on a snow-covered step at school.
- The local authority was not able to escape liability by claiming that it had delegated the task of cleaning the step to the school cleaner who, it was argued, was an independent contractor.
- The cleaning of the step was not a specialist task, and the danger was self-evident.
- The occupiers therefore had a duty to inspect the cleaner’s work to see that it had been properly done.
- This seems a particularly harsh decision, but perhaps may be explained due to the risk of danger to children on an icy day requiring the school to check that such work was properly done, and the courts’ sympathy towards child visitors.
Outline why the occupiers were not liable in the circumstances
- As a technical task, they had no duty to supervise with no skills to do this, hiring a reputable company was enough, it was reasonable to not take further steps in these circumstances.
- If what they complete is low skilled and low in technicality this may require the O to complete a visual inspection if it is within their frame of knowledge to be able to see if things either look right or wrong.
In these circumstances, the O would not have known any different.
What did LJ Scott state in these circumstances?
Haseldine v Daw - Per Scott LJ : No duty to supervise/check the work on these facts due to the technical nature of the task
- ‘Having no technical skill he [the occupier] cannot rely on his own judgement, and the duty of care towards his [visitors] requires him to obtain and follow good technical advice.’
What does the decision in Ferguson v Welsh tell us?
- It is clear from the House of Lords decision in Ferguson v Welsh that an occupier has no general duty to supervise the system of work used by a contractor so as to protect the contractor’s employees from harm.
- Their Lordships stated that in very exceptional cases, an occupier who becomes aware that the contractor’s employees are evidently in danger might be under a duty to ensure that dangerous working practices are stopped.
- Lord Goff, however, doubted whether an ordinary householder could really be expected to challenge the working practices of, for example, an electrician sent to work on his premises, even if he or she knew that those working practices were dangerous
However, what does technical work not always mean?
- Clearly, Daw is authority for the proposition that where the work in question involves complex or technical tasks, the occupier cannot be expected personally to see whether these tasks have been properly performed.
- It is far from certain, however, that the decision will allow an occupier to wash his or her hands of all responsibility simply by arguing that the work requiring special skill has been delegated to a contractor.
- Whatever may have been the position when the case was decided, it must be remembered that the 1957 Act requires an occupier to take reasonable steps to check the work.
- Thus, if contractors were to remove a lift (a specialist task) but were to leave the entrance to the shaft unguarded, it would be difficult for the occupier to escape liability, because the danger would be noticeable, even to a lay person.
In occupiers liability, does every foreseeable risk require action in order to not be considered in breach of a common duty of care? Which authority outlines the answer?
Pook v Rossall School [2018] EWHC 522
- pupil injured when running to hockey lesson over muddy ground.
- School owed an ‘enhanced duty’ to children, but there was no breach on these facts
- not every foreseeable risk required remedial action.
Exclusion of liability
Exclusion of liability
The clarity that an occupier may exclude their liability is made in what section of the OLA 1957?
S2(1) of the Act
What does S2(1) of the Act state?
S2(1) of the Act, which imposes the “common duty of care” on an occupier “except in so far as he is free to and does extend, restrict, modify or exclude his duty . . . by agreement or otherwise”.
In what ways may an occupier exclude their liability?
- By displaying an exclusion notice on the premises,
- By an express term of a contract governing a visitor’s entry.
What is an exclusion notice?
Exclusion notices are conceptually distinct from warning notices. Although it is not uncommon to see notices which combine exclusion of liability with an element of warning, in such cases, each element of the notice should be treated separately.
Both of these methods, however, are subject to the restrictions on exclusion of liability contained in which acts?
- Unfair Contract Terms Act 1977 and
- Consumer Rights Act 2015
To what extent may an occupier exclude liabilty at common law? Which authority demonstrates this?
Ashdown v Samuel Williams [1957] 1 QB
- the occupier must take reasonable steps to bring the notice to the visitor’s attention.
the common law is really generous in this manner.
The fact that the 1957 Act permits an occupier to exclude liability by a notice is a reflection of the position which had been established under the common law.
However there are two provisions which severly curtail the occupiers power to exclude liability, what is the first one?
Unfair Contract Terms Act 1977
UCTA S1(1)(c) expressly states that the Act applies to what?
UCTA S1(1)(c) expressly states that the Act applies to notices excluding or limiting the common duty of care under the 1957 Act.
What does S1(3) clarify regarding the Unfair Contract Terms Act 1977?
S.1(3) clarifies that UCTA’s restrictions on the power to exclude liability, only affect an occupier’s ‘business liability’.
(*those who visit the premises for educational or recreational purposes would not usually fall within the occupier’s business liabilities, unless education/ recreation is the occupier’s business).
What does S2(1) tell us regarding he Unfair Contract Terms Act 1977?
S2(1) - ‘A person cannot by reference to any contract term or to a notice given to persons generally orto particular persons exclude or restrict his liability for death or personal injury resulting from negligence.’
You cannot exclude personal injury or death caused by negligence.
What does S2(2) tell us regarding he Unfair Contract Terms Act 1977?
S2(2) ‘In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.’
You can exclude for other types of damage so long as it is reasonable to do so.
Is the Unfair Contract Terms Act 1977 for consumers?
- UCTA S2(4) makes it clear that the 1977 Act does not apply to “consumer notices”, that is, notices which seek to exclude or restrict a trader’s liability to a consumer, which are regulated by the Consumer Rights Act 2015.
- This means that even if the defendant is occupying premises for business purposes, if the entrant is a “consumer” then the 1977 Act will not apply.
- It is important, therefore, not only to identify whether the defendant is a business, but whether the claimant is a consumer or non-consumer.
However there are two provisions which severly curtail the occupiers power to exclude liability, what is the second one?
Consumer Rights Act 2015
When does the Consumer Rights Act 2015 apply?
Similar provisions apply under the Consumer Rights Act where the occupier is a ‘trader’ and the visitor is a customer (or non-trader)
The Consumer Rights Act 2015 (CRA) now deals with exclusion clauses in consumer contracts and notices.
The Act applies to notices seeking to exclude or restrict liability to the extent that it
(a) relates to rights or obligations as between a trader and a consumer, or
(b) purports to exclude or restrict a trader’s liability to a consumer
What does S65 of the Consumer Rights Act 2015 state?
S65 - ‘A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence.’
For notices or contract terms which attempt to exclude liability for other matters (damage to property, for example), the test is not reasonableness (as under UCTA 1977 s.2(2)) but a test of what?
Fairness.
Defences
Defences
What are the two defences which arise in occupiers liability?
The defences of voluntary assumption of risk (consent) and contributory negligence will arise under the Occupiers’ Liability Act 1957.
Under what section of the act are defences concerned?
Defences: S2(5)
For a recent application of the volenti defence, which authority do we turn too?
Geary v JD Wetherspoon Plc [2011]
S2(5) if they willingly accepted the risk of the harm, this is a defence, as in the case above.
Volenti however is not usually successful.
The Act does not specifically mention contributory negligence as a defence but, we do have an authority to support its application, which is this?
White Lion Hotel v James [2021] EWCA Civ 31
- C fell from window of his hotel room to his death
- sitting on the ledge of a sash window whilst inebriated was 60% contributorily negligent.
