Occupiers' Liability

Question 1

Was personal injury or property damage suffered while C or his property was on the premises occupied by D (1956 Act covers both, 1984 only PI)?

Answer 1

If no , then there will be no occupiers liability, but may be liable for nuisance or under Rylands v Fletcher.

Question 2

Did damage arise from danger associated with the state of premises?

Answer 2

If no , then there will be no occupiers liability.

Question 3

Who is an “occupier”?

Answer 3

No statutory definition, apply common law →Wheat v Lacon – “does D have sufficient degree of control over premises such that he ought to realize that any failure on his part to use care may cause injury to a person lawfully coming there”

Question 4

What is the fact of Wheat v Lacon?

Answer 4

Wheat v Lacon –D brewers owned a public house run by manager living on d 1st floor w/ wife. Guest fell down the stairsb/c handrail was too short &no proper lightning. Held manager owed common law duty under 1957 Act but didn’t breach it. D brewer & manager could be occupiers simultaneously, relevant duties dependent on circumstances of occupation.

Question 5

If A owns the premises

a. No-one is there → who is the occupier?
b. B leases → who is the occupier?
c. B has a licence → who is the occupier?

Answer 5

a. A is the occupier
b. B (not A) occupier
c. A probably has sufficient control, so A is the occupier

Question 6

What other principles were enunciated in Wheat v Lacon?

Answer 6

• A company can occupy through its servants
• Not necessary for occupier to have exclusive occupation – more than one occupier possible for same part of a building – Wheat v Lacon
• Occupational control is a question of degree – a contractor building the house may have control of the site whilst the guy fitting a mirror might not

Question 7

Was C a “visitor”?

Answer 7

• “Visitor” = a person whom the occupier has given express or implied permission to enter

Question 8

What are the categories of visitors?

Answer 8

a) invitees – a person invited onto the premises
b) licensees – someone who merely had permission to enter the premises, express or implied

    i) all who entered premises in exercise of a right conferred by law (s1(6)); firemen fighting fire, policeman executing a search warrant
    ii) Where a person entered under contract terms, a                      term can be implied that duty of care is owed to him (s5)

Question 9

What is the fact of McGeown v Northern Ireland Housing Executive?

Answer 9

A person tripped on a path owned by local housing authority not maintained properly. The path was a public right of way so OLA didn’t apply.

*** public/private right of way is not a visitor (but private right of way can give rise to duty under OLA1984)

Question 10

Who are implied licencee?

Answer 10

Implied licenses: prior to 1984 Act, children were main beneficiaries but could also apply to adults (e.g. where occupier did nothing for years to deter people from walking through his land)

Question 11

When a person can cease to be classed as visitor?

Answer 11

If he exceeds the terms of his permission→

“when you invite a person into your house to use the staircase, you don’t invite him to slide down the banister”

o Harvey v Plymouth City Council [2010] – C drunk; out w/friends, immediately prior to accident was running away from taxi in order to avoid paying; ran over grassed area onto piece of land owned by LA; fell through gap in bushes, landing on concrete, suffered PI, incl. BD; sought compensation incl. loss of wages, arguing breach under OLA 1957. Court held C was a lawful visitor & LA had complied w/legal duty to ensure premises were safe b/c impliedly allowed people to come onto land in order to carry out normal activities but not to act in a reckless manner

• Occupier may withdraw his permission but tenant will have reasonable time to leave before he becomes a trespasser but C must be made aware he exceeded his licence
• Occupier may permit a person to be in some parts of the premises but not others→ C isn’t covered if injured going to a part no-one reasonably expected him to go (e.g. wrong side of railings at train station)
• Independent contractors - implied term that occupier owes entrant the common duty of care

Question 12

What duty of care did D owe?

Answer 12

• “Common duty of care” - D must “take such care as is reasonable in all the circumstances of the case to see the visitor will be reasonably safe in using the premises for the purpose of which he’s invited/permitted to be there – s2(2)
• Use Bolton v Stonetest – cost of precautions compared to risk
• It is the visitor, not the premises, which must be safe (thus greater duty owed to the blind etc.)

Question 13

What is the standard of care that is owed to children?

Answer 13

a) Children are less careful than adults – s2(3)(a)
Butoccupier is entitled to assume behaviour of v. young children will be supervised by a resp. parent, in which case must provide a warning sufficient to alert the guardian
o Phipps v Rochester Corp – 5 y/o child wandered on unfenced building site near home, held to be implied licensee. If was so young that degree of supervision by adult ought to be expected, then only a warning sufficient to alert the guardian is needed. Unless there’s a reason to expect unaccompanied child to enter the premises, there’s no duty to warn of dangers that would be obvious to a guardian
o Bourne Leisure v Marsden(2009) - Cs took small children to holiday park, 2 y/o drowned in the pond. There was a path &fence but kid climbed over it. Held: no breach as it would be impractical to fence every source of hazard + clearer warning wouldn’t make a difference.
⇨ Policy - Devlin – “not socially desirable if partents were able to shift the burden of looking after their children from their own shoulders to those with accessible land”
⇨ Look at age of children and nature of premises in seeing if this assumption applies

Question 14

What will be the consequence if allurement exist in occupier’s premises which causes danger to child?

Answer 14

Must take precautions against children being attracted to allurements
o Jolley v Sutton LBC – A boat in dangerous condition constituted an allurement to a14yr old
⇨ Higher standard if there’s an allurement
⇨ Big children are treated like adults, but in Jolley v Sutton it was proposed they are also more likely to encounter danger and less likely to appreciate it than adults.

Question 15

What is the standard of care that is owed to specialist visitor?

Answer 15

Occupier may expect that a specialist, i.e. person in exercise of his calling, will appreciate and guard against any special risks normally incident to it, so far as the occupier leaves him free to do so – s2(3)(b)

o Roles v Nathan– 2 chimney sweepers given appropriate info about defective boiler, occupier not liable for their deaths b/c, had they heeded warnings & acted w/due care, would have been safe.

⇨ If worker is injured, despite taking due precautions, occupier will still be

Question 16

Can a occupier by contract reduce his obligations to visitors who are strangers to it to the level below that imposed by common duty of care?

Answer 16

If A contracts with occupier to use premises (and permit TPs to use them), occupier can’t by contract reduce his obligations to visitors who are strangers to it to the level below that imposed by common duty of care
⇨ Protects TP having rights excluded and not knowing about it

Question 17

How can D discharge his common duty of care by engaging an independent contractor?

Answer 17

Occupier may not be liable if he entrusted work to a competent independent contractor – s2(4)(b)

• Not liable ‘without more’ for dangers created by contractors in execution of any work of construction, maintenance or repair

Question 18

What are the requirements to discharge duty through engaging independent contractor?

Answer 18

Requirements for discharge:
a) Reasonable to entrust work to an independent contractor
b) Occupier took reasonable care to see that contractor was competent; and
c) If the character of the work permits, he took reasonable care to check the work was reasonably done
• Where work is especially complex (e.g. construction of a large building) the occupier may have to cause the independent contractor’s work to be supervised by a properly instructed professional
⇨ NB: any liability arising from the manner in which the contractor works (as opposed to the condition he leaves the place in) will be normal negligence (not OLA); E.g. sawdust in someone’s eye

Question 19

Maguire v Sefton MBC

Answer 19

o Ferguson v Welsh(1987) - LA contracted S to demolish premises, prohibited subcontracting w/out permission but S did subcontract to 2 brothers who didn’t work safe. C was offered a job by W & seriously injured. Held LA invited F on the premises as it put S into occupation and ‘put him’ in position to invite W (questionable b/c clear prohibition!) + broad interpretation of occupier duties under s2(4)(b): where occupier knows or has reason to expect contractor’s employing unsafe work practice, there may be duty to take steps to see that system was made safe
o Maguire v Sefton MBC- LA ran a gym, had machine inspected by expert who said was fine but wasn’t,C injured himself; sued for contractually based occupiers liability of higher strictness than common duty. Held s5 did away w/ previous common law distinction b/w occupier’s liability towards a non-contractual visitor and visitor entering under contract. S entitled to rely upon P as expert to perform proper inspection of machine &that it had employed experts and had taken proper steps by entering into the service contract so as to meet its duties under the Act. No liability under the Act.

Question 20

In which situations ‘warning’ will be a valid defence?

Answer 20

Only absolves the occupier from liability if it was enough to enable visitor to be reasonably safe (s2(4)(a))
a) Was reasonable notice given?
− Not reasonable if someone is blind, can’t read/speak English, or if it’s dark outside and C will be unable to see the notice
b) Does the notice enable him notified to be reasonably safe?
− Denning in Roles v Nathan – a dangerous bridge w/a warning which is the only way out of a building doesn’t discharge the duty. If there are 2 bridges (one safe, other dangerous), warning will be sufficient

• May not be enough for children (barrier may be required)
• Warning by someone other than the occupier doesn’t count (wording of s2(4)(a) refers specifically to “warning given by the occupier’

Question 21

What is the fact of White v Blackmore?

Answer 21

o White v Blackmore - W attended a motor race w/ family. At entrance to the field a sign “warning to the public, motor racing is dangerous. All liability for death, PI etc. excluded to spectators.” W killed watching one of the races. Held chairman of the motor club didn’t owe W a duty under 1957 act. Notice was effective to exclude it
⇨ would have been decided differently due to UCTA 1977, whereby a company cannot exclude liability for death or personal injury w/a sign

Question 22

When ‘volenti’/ ‘conset’ of C amounts to a valid defence?

Answer 22

Was the visitor willing accepted risks?
• Occupier doesn’t have obligation to a visitor in respect of risks willingly accepted – s2(5) *really, a special application of volenti defence
o Leigh Rugby Football Club – Rugby league player suffered injury when tackled against a wall. D not liable as C accepted risk of playing rugby on a ground that complied w/bye-laws of the league
⇨ NB: person’s awareness of notice isn’t to be taken as indicating her voluntary acceptance of the risk
o Poppleton v Trustees of PortsmouthYouth Club - guy fell from climbing wall. Held that the risk was inherent in the activity he voluntarily chose to undertake thus no occupier’s liability for a duty of care. Warnings in place also.

Question 23

How can a occupier exclude liability for damage via notice/ a term?

Answer 23

• S2(1) allows occupier to extend & restrict his liability in so far as he’s allowed to do so
• UCTA limits circs where liability can be excluded
i. Only if D is acting “in the course of business” or occupying premises “for business purposes”→ not “business liability” if obtaining access to premises for recreational or educational purposes (unless granting access for these purposes falls within occupier’s business)- S2
• If applies
i. Can’t by ref to a contract term or notice exclude/restrict his liability for death or PI resulting from negligence – s2(1) UCTA
ii. In case of other damage, can restrict iability for negligence provided term/notice satisfied “reasonableness test” – s2(2) UCTA
⇨ Section expressly excludes the breach of common duty of care
o Ashdown v Williams – C was injured by railway trucks negligently shunted along a railway line on D’s land. Notices posted that every person was there at “their own risk” and should have “no claim against D for any injury”. Held D couldn’t recover (decided pre-UCTA). If decided now, couldn’t exclude responsibility for death
Watch out: warning & exclusion are conceptually distinct but may be combined on the one notice

Question 24

What is the effect of contributory negligence?

Answer 24

• Judges have applied Law Reform (Contributory Negligence) Act 1945to reduce damages.
• Where C’s fault is extreme it may amount to sole legal cause of his loss

Question 25

Can damages may be recoverable for property damaged due to state of property?
• Tile falls off B’s roof onto A’s car; B liable if he has not discharged common duty of care – example from AMF v Magnet Bowling

Answer 25

Yes.
Tile falls off B’s roof onto A’s car; B liable if he has not discharged common duty of care – example from AMF v Magnet Bowling

Question 26

What does OLA1984 deal with?

Answer 26

Liability to trespassers/ persons exercising private rights of way: Occupier Liability Act 1984 Owed to all those who aren’t “visitors” under 1957 Act (a lesser duty!)(but not to persons using a public right of way –must consult highways legislation)

Question 27

When is a duty owed to a trespasser?

Answer 27

Duty owed to the trespasser if (s1(3)
a) Occupier is aware/has reasonable ground” to believe danger exists
b) Occupier knows/has reasonable grounds to believe trespasser had or may come into vicinity of danger
==> “Reasonable grounds to believe” → requires knowledge of facts which would led a reasonable person to be aware of danger/presence of the trespasser - so you can’t fail to make obvious inferences, but simple ignorance isn’t enough
c) The risk is one which, in all circs of the case, occupier may reasonably be expected to offer some protection from (e.g. Tomlinson– signposts posted – thus not reasonable to offer protection)

Question 28

When does the OLA 1984 apply?

Answer 28

• Act only applies to danger created by “nature of the premises or things done or omitted to be done on them” and not to inherently risk activities
o Tomlinson v Congleton – C jumped into a quarry despite “do not swim” sign& broke his neck. Not a visitor. Not covered by OLA since danger came from his misjudgement in diving into a shallow lake (lake itself couldn’t be said to be in dangerous condition. Held: he was a trespasser but D had no duty to warn of obvious hazard →If water filled w/acid which C couldn’t see it would be a decided differently
o Keown v Coventy Healthcare NHS Trust – C (11y/o) climbed a fire escape & fell injuring himself. D knew of danger children would fall and injure themselves but took no precautions. Claim failed under OLA1984 as source of danger wasn’t the fire escape, but what the child chose to do. Child recognised danger and was his fault. Policy: otherwise a man climbing a mountain could sue the land owner (despite his actions being inherently risky

Question 29

What is the duty for trespassers?

Answer 29

• To take such care as is reasonable in all circs to see that the entrant doesn’t suffer injury on the premises by reason of the danger concerned s1(4)

Question 30

What are the methods of discharging duty for trespassers?

Answer 30

a) By giving a warning of danger concerneds1(5)
• A warning is more likely to discharge the occupier’s duty here that visitors (but will not discharge in all cases)
o Billings v Riden - builders contracted to work on a house, removed main entrance into the basement and replaced it w/unsafe temporary one which C tripped & injured herself whilst using. Argued they had warned her of the dangers & discharged their duty. Held they hadn’t provided a reasonably safe alternative and thus were liable.
b) Volenti non fit injuria
• Adult trespasser who takes a risk obvious to him can’t complain the owner didn’t take reasonable steps to discourage his folly s1(6)
c) Nature of trespass is relevant in determining what the occupier may reasonably be expected to do; compare a child who runs onto land vs. a burglar (Winfield &Jolowicz)
d) Liability can probably be excluded → UCTA didn’t apply to trespassers b/f OLA 1984 so probably still doesn’t apply (Act is silent on this)
e) Damage to trespasser property is not covered (unlike OLA1957) s1(8)
• However previous CL position may apply; i.e. might owe the “common duty of humanity”