Occupiers' liability

Question 1

1. Liability of Occupiers:

(i) Defining Occupiers and Visitors

Answer 1

Occupiers’ liability
• Refers to the duty owned by land owners, or when the duty is transferred to others.
• There is a duty owed to those who come onto their land.
• Occupiers’ liability is perhaps a distinct form of negligence in that there must be a duty of care and breach of duty, causing damage. The rules of remoteness apply to occupiers’ liability in the exact same way that they apply to negligence claims. Liability can arise on occupiers for omissions since their relationship gives rise to duty to take action to ensure the reasonable safety of visitors.
• The law originated in common law but now is contained in two major statutes:
o OLA 1957 – Which imposes an obligation on occupiers with regard to ‘lawful visitors’.
o OLA 1984 – which imposes liability on occupiers with regard to persons other than ‘his visitors’.
• Higher level of protection is awarded to lawful visitors.
• Both Acts impose an obligation on occupiers rather than land owners. The question of whether a particular person is an occupier is a question of fact and depends on the degree of control exercised. The test applied is one of ‘occupational control’ and there may be more than one occupier in the premises.

Question 2

• OLA 1957 s 1 (1), (2)

Answer 2

• Lawful visitors to whom occupiers owe the common duty of care for the purposes of the OLA 1957:
o Invitees – s1(2) so these have express permission to be there,
o Licensees – s1(2) – those who have express or implied permission to be there. This includes situations where a licence would be implied at common law.
♣ S5(1) – those who enter pursuant to a contract.
♣ S2(6) – those in exercising a right conferred by law, for instance, entering to read the gas or electricity metres.

• The common duty of care is set out in s2(2) OLA 1957.
o S2(2) – expects reasonable safety for the person who has been invited.
o The standard of care varies according to the circumstances,
♣ 1. S2(3)(a) – an occupier must be prepared for children to be less careful than adults
♣ 2. S2(3)(b) – an occupier may expect that a person in the exercise of his calling will appreciate and guard against any special risks ordinarily incident to it.
o S2(3)(a) – child visitors
♣ The court will take into account the age of the child and level of understanding a child of that age may be expected to have.
o S2(3)(b) – common calling
♣ This provision applies where an occupier employs an expert to come on to the premises to undertake work. The expert can be taken to know and safeguard themselves against any dangers that arise from the premises in relation to the calling of the expert. For example, if an occupier engages an electrician, the electrician would be expected to know the dangers inherent in the work they are employed to do.
• Note
o It may be possible for an occupier to discharge their duty by giving a warning of the danger.
o BUT – s2(4)(a) – provides that a warning will not be treated as absolving the occupier of liability unless in all the circumstances it was enough to enable the visitor to be reasonably safe.

•	Dangers arising from actions undertaken by independent contractors.
o	S2(4)(b) – An occupier is not liable for danger created by independent contractors if the occupier acted reasonably in all the circumstances in entrusting the work to the independent contractor and took reasonable steps to satisfy himself that the work carried out was properly done and the contractor was competent. 

Defences applicable to the 1957 Act
• Volenti non fit injuria – s2(5) –
o The common duty of care does not impose an obligation on occupier in respect of risks willingly accepted by the visitor. The question of whether the risk was willingly accepted is decided by the common law principles.
• Contributory negligence – Damages may be reduced under the Law Reform (Contributory Negligence) Act 1945 where the visitor fails to take reasonable care for their own safety.
• Exclusion of liability – s2(1) – allows an occupier to extend, restrict, exclude or modify his duty to visitors in so far as he is free to do so .

Question 3

• Wheat v Lacon 1966 AC 552

Answer 3

• The test applied is one of ‘occupational control’ and there may be more than one occupier of the same premises.
• Facts
o C and her family stayed at a public hotel. Her husband died when he fell down the stairs and hit his head. The stairs were steep and narrow. There was no bulb in the light.
o C brought an action under OLA 1957 against the Lacon, which owned the freehold of the hotel and against the Managers of the Pub, Mr & Mrs Richardson, who occupied the pub as a licensee.
• Held
o Both the Richardsons and Lacon were occupiers of the hotel and therefore both owed a duty of care. It is possible to have more than one occupier.
o 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.

Question 4

• OLA 1957 s2(2), (3), (4); s5 (1)

Answer 4

(ii) Duty to Visitors: OLA 1957
(a) The Nature of the duty

• S2(2) – a common duty of care is expected to be seen so that the visitor will be reasonably safe in using the premises that he has been invited to.
• (3) – The circumstances relevant for the present purpose include the degree of care –
o (a) an occupier must be prepared for children to be less careful than adults and
o (b) an occupier may expect that the person in exercise of his calling will appreciate and guard against any special risks.
• (4) – in determining whether the occupier of the premises has discharged the common duty of care to a visitor, the following must be observed:
o (a) warning does not absolve the occupier unless the visitor is reasonably safe.
o (b) Where damage is caused to a visitor by danger due to the faulty execution of any work of construction…the occupier is not treated as answerable for the danger if it was entrusted to a competent contractor.
• S5(1) – implied terms in contract
o (1) – a duty is owed to persons entering the premises in the exercise of a right conferred by contract with a person occupying or having control of the premises.

Question 5

*Roles v Nathan 1963 1 WLR 1117 -s 2 (3b), 2(4a)

Answer 5

• Facts
o The Roles brothers were engaged by Mr Nathan as chimney sweeps to clean the flues in a central heating system. The flues had become dangerous due to carbon monoxide emissions. A heating engineer had warned them of the danger, however, the brother told him they knew of the dangers and had been flue inspectors for many years.
o The engineer monitored the situation throughout the day and at one point ordered everybody out of the building due to the levels of carbon monoxide. The brothers ignored this advice and continued with their work.
o The engineer forcibly removed them from the building. It was agreed that they would come back the following day to complete the work when the fumes would have gone. They were also told they should not do the work whilst the fires were lighted.
o The next day the brothers were found dead in the basement having returned the previous evening to complete the work when the fires were lit.
o Their widows brought an action under OLA 1957.
• Held,
o D was not liable. The warnings issued were clear and the brothers would have been safe had they heeded the warning.
o It was held that the warnings were enough for the occupiers to fall within s2(4)(a) OLA 1957. Moreover, the occupier was under o duty of care, because under s2(3)(b) the risk was incident to the workmen’s’ calling a danger they could have been expected to guard against.

Question 6

Ogwo v Taylor 1987 3 WLR 1145 - duty re firemen

Answer 6

• Facts
o D attempted to burn off paint beneath the eaves of his house and in so doing set fire to the premises.
o The fire brigade was called and the C, an acting leading fireman, and a colleague entered the house wearing breathing apparatus and the usual fireman’s protective clothing and armed with a hose. Two fireman were able to squeeze through a small hatch to get into the roof space. The heat within the roof space was intense and C suffered serious burns to his upper body and face from scalding steam which must have penetrated his protective clothing.
• Held
o A duty of care was owed to a professional fireman. There was no requirement that the risk be exceptional. The defence volenti had no application.
o Lord Bridge:
♣ ‘”The duty of professional firemen is to use their best endeavors to extinguish fires and it is obvious that, even making full use of all their skills, training and specialist equipment, they will sometimes be exposed to unavoidable risks of injury, whether the fire is described as “ordinary” or “exceptional.” If they are not to be met by the doctrine of volenti, which would be utterly repugnant to our contemporary notions of justice, I can see no reason whatever why they should be held at a disadvantage as compared to the layman entitled to invoke the principle of the so-called “rescue” cases.”

Question 7

*Ferguson v Welsh 1987 3 All ER 777 - s2(4)(b), sub-contractors

Answer 7

• Facts
o Sedgefield District Council, in pursuance of a development plan to build sheltered accommodation, engaged the services of Mr Spence to demolish a building. It was a term of the contract that the work was not to be sub-contracted out. In breach of this term, Mr Spence engaged the services of the Welsh brothers to carry out the demolition who in turn engaged the services of Mr Ferguson to assist.
o Mr Ferguson suffered serious injury resulting in permanent paralysis when a wall he was standing on collapsed due to the unsafe practices operated by the Welsh brother. He brought an action against the Council, Mr Spence and the Welsh brothers.
o The trial judge held that the Welsh brothers were liable but that Mr Spence and the Council were not liable.
o Mr Ferguson appealed against the finding against the Council since the Welsh Brothers (or Mr Spence) had the funds or insurance to meet liability.
• Issue
o Could the council be held liable?
♣ No
• Held
o HL.
o Appeal dismissed.
♣ The sub-contractor had undertaken unsafe system of work, for which the council could not be held liable; not in the scope of occupiers’ liability.
♣ A major contractor with a significant degree of control over the site may be classed as an occupier.
♣ Such an occupier may invite others onto the premises contrary to the permission of the usual occupier.

Question 8

*Darby v National Trust 2001 EWCA Civ 189 - obvious risks: drowning

Answer 8

• Facts
o The claimant’s husband, Mr Darby, drowned in a pond owned by the National Trust (NT). Two of the ponds were used for fishing and NT had taken steps to prevent the use of those ponds for swimming or paddling.
o However, regarding the pond in which the fatality occurred, NT had done nothing to prevent visitors using the pond and it was common for visitors to use the pond paddling and swimming during the warm summer months.
o On the day in question Mr Darby had been paddling with his children around the edge of the pond. He then swam to the middle to play a game he had often played, however, he got into difficulty and drowned.
o C argued that because of NT’s inactivity in preventing swimmers using the pond, both she and her husband had assumed the pond was safe for swimming.
• Held
o NT was not liable. The risk to swimmers in the pond was perfectly obvious. There was no duty to warn of an obvious risk.

Question 9

Bottomley v Todmorden Cricket Club 2003 EWCA Civ 1573 - insurance/ ind. Contractors

Answer 9

• Summary
o The defendant club, which allowed a dangerous pyrotechnic display to take place on its land, owed a duty of care to the claimant, who was lawfully on the land assisting the contractors conducting the display, and was along with the contractors, liable to the claimant when he was injured in an explosion because the contractors and the club had failed to take ordinary precautions.
• Facts
o T Cricket Club appealed against a judgment in favour of B who had suffered serious injuries whilst at a pyrotechnic display on T’s premises.
o A judgment was also entered against the two independent contractors who had conducted the display and had invited B to assist them on a voluntary basis.
o The judge found that T had failed in its duty to select a reasonably competent contractor, it was vicariously liable for the negligence of the two contractors because it had employed them to undertake an ‘extra hazardous’ activity on its premises and it had failed to ascertained whether the two contractors were insured.
o T contended that as an occupier it did not owe B, the agent of the two contractors, a duty of care to select a suitable contractor.
• Held
o Appeal dismissed.
♣ T as an occupier did owe a duty of care to B as it had allowed a dangerous event to take place on its premises without taking the ordinary precautions it should have taken.
♣ The injuries suffered by B who was lawfully on the premises, were foreseeable in the absence of a proper safety plan, there was the requisite proximity between T and B and it was fair, just and reasonable to impose liability on T as it did not do what it ought to have done.

Question 10

Phipps v Rochester [1955] 1 QB 450

Answer 10

• Facts
o A 5-year-old boy was walking across some open ground with his 7-year-old sister. He was no accompanied by an adult. He was injured when he fell into a trench. The Corporation were not held liable as an occupier is entitled to assume that prudent parents would not allow their children to go unaccompanied to places where it is unsafe.
o 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’

Question 11

**Bourne Leisure v Marsden 2009 EWCA Civ 671 - parental supervision

Answer 11

• Affirmed the previous decision in Phipps v Rochester.
• Facts
o The mother left her child unattended in a park bench for a few minutes while she was speaking to someone. The child climbed over a fence and drowned in a pond. The mother sued the owner of the park.
• Held
o The CA, followed the decision in Phipps, Moses LJ said that it is impractical to fence off every hazard and dangers such as drowning in a pond are very obvious to the parent it need not be warned about.

Question 12

• Harvey v Plymouth CC 2010 EWCA Civ 860 - ‘normal’ activities & risks

Answer 12

• Concerned OLA s2 1957.
• In here the CA considered whether or not a land owner was liable under OLA when someone was injured on their land while acting recklessly (running in the dark whilst drunk).
• Facts
o The case concerned the land owned by Plymouth City Council used by local youngsters as an informal recreation ground. At the edge of the land there was a fence which had not been properly maintained and just below a car park.
o A 22-year-old male had been out drinking. He jumped out of his taxi at the end of the evening, ran across the land, tripped over the fence and fell over into the car park below suffering serious injuries.
• Held
o The court said that Harvey had an implied licence, created by the council’s conduct in allowing the land to be used. However, the licence was for general recreational activity and extended to normal activities carrying normal risks. The licence did not extend to reckless activities such as running in the dark whilst drunk, so Harvey was not a visitor at the time of the accident.
o Overturning the first instance decision which found the council liable, but Harvey 75% contributory negligence, the court decided that the council was not liable.
• Ratio
o CA has been taking more robust view of occupier’s liability: if someone behaves irresponsibly he has to take the consequences, serious though they may be. However, land owners do need to make sure that appropriate safeguards are in place to protect those using their property in the permitted fashion.

Question 13

W Sussex CC v Pierce [2013] EWCA Civ 1230

Answer 13

• Facts
o C was a 9-year-old boy. He suffered a laceration injury to his thumb when, in trying to punch his brother, he missed and hit the underside of a school drinking fountain.
o D was the local authority responsible for the school.
o The appeal considered the duty by s2 of OLA 1957.
• Trial judge
o Found the fountain had a sharp edge, that the school had not considered what risk the fountain might pose to children, and that no properly considered risk assessment had been carried out. Hence D was liable.
• CA
o The appeal focused on the judge’s failure to mention the 1957 Act or to apply the proper legal test. He was criticised for making a finding based on the ‘possibility of harm, rather than the reasonable foreseeability of harm.’
o The test is:
♣ ‘The School was not under a duty to safeguard children against harm under all circumstances…the School was no more obliged as an occupier to take such steps in respect of the water fountain that it would be in respect of any of the ordinary edges and corners or surfaces against which children might accidentally injure themselves whilst on the premises.’
o Therefore, the accident was unfortunate but the CA reversed the decision holding D as not liable.
• Comment
o Although s2(3) 1957 OLA requires an occupier to be prepared for children to be less careful than adults, the judgment of the CA demonstrates that the requirement does not alter the substantive legal test in relation to foreseeability. Sharp LJ’s judgement: the test remains one of reasonable foreseeability, not one of mere possibility.

Question 14

** Yates v National Trust [2014] EWHC 222 (QB) – no DofC owed by NT to an employee
of its independent contractor

Answer 14

• Summary
o The court held that no duty of care was owed by NT to the employee of one of its independent contractors. The decision is welcomed as bringing clarity to the nature of the duty of care owed by occupiers.
• Facts
o D engaged the services of a contractor to carry out tree works at one its properties, Morden Hall Park.
o One of the contractor’s employee, the claimant, was seriously injured when he fell from a height of 50 feet whilst working in a tree. He has no memory of what occurred and none of his ground staff could shed any light on how he came to fall.
o C’s single argument at trial was that a duty of care was owed to him, as the employee of a contractor, by the defendant as occupier. The scope of the duty was said to be select a competent contractor. Throughout the case it was argued that the contractor was not competent and that his employee was too inexperienced.
• Held
o It was held that the defendant did not owe a duty of care to the claimant in the selection of the independent contractor. It would not be fair and reasonable to impose a duty which would place a much more onerous obligation on occupier to their contractor’s employees than they owed to their visitors under OLA 1957.
o The judge also held that even assuming a duty of care was owed by the defendant to the employees of the contractor to select only a competent contractor, the defendant was not in breach of that duty as it was entitled to regard the independent contractor as competent and safe.
• Comment.
o Had the court found a duty of care was owed by an occupier in such circumstances, this would have represented an unwelcome extension to the law. The implications for any person, private or corporate, who engaged the services of a contractor would have been transformed. This decision confirms an occupier is entitled to expect that a contractor will appreciate and guard against any risks associated with that contractor’s calling.

Question 15

Pollock v Cahill [2015] EWHC 2260 (QB) – s.2 duty re fall by blind claimant

Answer 15

• The claimant was totally blind, fell down from an open second floor window at the home of the defendants. As a result, he is paralysed from the waist downwards.
• Mr Justice William Davis held that the window had been opened by the second defendant. The claimant fell through the open window as he was trying to make his way to the bathroom, having just woken.
• The claimant had proved that his injury was caused by a breach of duty on the part of the defendants. They ought to have appreciated the risk and taken steps to prevent it by keeping the window closed or warning the claimant.

Question 16

** Everett v Comojo [2011] EWCA Civ 13, [2012] 1 WLR 150 – common law
duties in respect of deliberate acts of third parties on the premises, modelled on OLA

Answer 16

• Management of a nightclub owe a duty of care in respect of the actions of third parties on the premises, to the extent that it is fair, just and reasonable.
• Facts
o The claimants were guests at a nightclub, which was managed by the defendant. Use of the nightclub was restricted to members and their guests, save that residents of the hotel, of which it was a part, were also permitted to use it.
o During the evening, a fracas occurred in which the claimants, were stabbed. They brought proceedings against the defendant, alleging that it had failed to take appropriate steps to protect is guests.
o The issue arose as to whether the defendant owed a duty of care to the claimants.
o The claimants contended that the defendant owed its guests a duty at common law to take reasonable steps to protect them from dangers from third parties which it foresaw or ought reasonably to have foreseen.
o The judge held that D might owe a duty to protect their guests from the actions of a third party, but that no duty arose in the circumstances of the case. C appealed.
• Held
o CA
♣ Dismissing the claimants’’ appeal considered the threefold test for establishing a duty of care expounded by the HL in Caparo:
1. Proximity of the relationship: the relationship between the management of a nightclub and its guests was of sufficient proximity to justify the existence of a duty of care.
2. Foreseeability of injury: this will vary depending on the nature of the establishment. In this case, Comojo could not argue the risk of an assault was no low that it could safely be ignored.
3. Fair, just and reasonable: it was fair just and reasonable to impose a duty of care on the management of a nightclub in respect of injuries caused by third parties, provided that the scope of the duty was appropriately set.
• Accordingly, Lady Justice Smith held that there was a duty of care owed by the management of a club in respect of the actions of third parties on the premises.
• In this particular case however, Comojo had not been in breach of that duty as at the time the waitress went to speak to her manager, there was no reason to think that a confrontation was imminent.
• Comment
o Although this claim was unsuccessful, the judgment will be of concern to nightclubs, hotels and insurers. It allows claimants injured by the actions of third parties on their premises, to argue that the establishments were in breach of their duty of care. The precise extent of that duty, and the measures will vary depending on the nature of the establishment in question.

Question 17

• OLA 1957 s2(1),(5); s 3(1)

Answer 17

(b) Defences
• S2(1) – says that an occupier of premises owes the same duty, the ‘common law duty of care’ to all his visitors, except in so far as he excludes, restricts, modifies his duty to any visitor by agreement or otherwise.
• S2(5) – The common duty of care does not impose on an occupier any obligation to a visitor of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).

Question 18

*White v Blackmore 1972 2 QB 651

Answer 18

• Facts
o The claimant attended a race meeting. In the morning, he raced as a competitor, and in the afternoon was killed in the capacity of a spectator. He did not leave the premises of the defendant all day, and at the entrance to the premises was a notice excluding liability to all spectators.
• Issue
o Could the defendants be covered by the exclusion?
• Held
o Yes.
• Reasoning
o Reasonable steps had been taken to bring the notice to the attention of the claimant. See s2(5) (so C accepted the risks)
o May be a different result today due to the Unfair Contract Terms Act 1977.
• The defence of volenti was unsuccessful. Whilst it he may have been volens in relation to the risks inherent in Jalopy racing, he had not accepted the risk of the negligent construction of the ropes. So D had successfully excluded liability (Lord Denning MR dissenting)

Question 19

Lough v Intruder Detection and Surveillance Fire & Security Ltd & another [2008] EWCA Civ 1009 – contrib. neg

Answer 19

• Summary
o The fact that another party might be liable for injuries to a visitor to premises under a statutory duty to provide a safe place of work, did not mean that the occupier could not also be liable in breach of duty under the OLA 1957 s2. Therefore, where a visitor to premises had suffered personal injury after falling from an unguarded landing while working under his employer’s supervision, the occupier was not absolved of his personal duty under the 1957 Act and had to contribute towards the employee’s award of damages.

Question 20

Trustees of Portsmouth Youth Activities v Poppleton [2008] EWCA Civ 646 – obvious risks

Answer 20

• C with a group of friends, attended an activity where they engaged in ‘bouldering’, a low-level simulated rock-climbing activity. C was not shown any rules, asked to sign a disclaimer notice or given any instructions as to the risks. No enquires were made as to his ability as a climber. It was argued that the rules prohibiting jumping off the walls and climbing on top of the structure should have been more prominently displayed.
• C leapt from a back wall intending to grab hold of a buttress or the top rope bar of the opposite wall, but lost his grip and fell on the matting below landing on his head. As a result, he was seriously injured and was rendered tetraplegic.
• In rejecting his claim for damages, the court said ‘adults who chose to engage in physical activities, which obviously give rise to a degree of unavoidable risk may find that they have no means of recompense if the risk materialises so that they are injured. The risk of falling from the wall was plainly obvious…it is quire obvious that no amount of matting will avoid absolutely the risk of possibly severe injury from an awkward fall, the possibility of an awkward fall is an obvious inherent risk of this kind of climbing. If the law required training or supervision in this case, it would equally be required for a multitude of other common place leisure activities, which nevertheless carry with them a degree of obvious inherent risk-as for instance bathing in the sea.’
• The claim was dismissed.

Question 21

UCTA 1977 ss1, 2

Answer 21

• S1 – Negligence is the scope of the OLA 1957.
• S2 –
o 1. A person cannot by reference to any contract term or to a notice given to persons exclude his liability for death or personal injury resulting from negligence.
o 2. In the case of other loss of 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.
o 3. Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of it itself to be taken as indicating his voluntary acceptance of the risk.

Question 22

McGinlay v British Railways Board 1983 1 WLR 1427 - no duty/volenti

Answer 22

• Facts
o C, a 15-year-old girl, was out walking with her boyfriend who was 16. They took a short cut across a railway line and they were both hit by a train. He was killed and she was seriously injured. There was a gap in the fence at the place where they crossed and there was a pathway leading to this gap which suggested that there was repeated trespass. Also it was accepted that either the defendant was aware of the gap or would have been aware upon reasonable inspection.
o The defendant raised the defence of volenti under s2(3) OLA Scottish Act.
• Held
The scope of the duty owed to trespassers varies on the circumstances. On the facts of this case the defendants did not owe a duty to a 15-year-old trespasser who was fully aware of the risks. Even if the defendant did owe a duty of care the defence of volenti under s2(3) would succeed

Question 23

• OLA 1984 s.1(1),(2),(3),(4),(5) and (6).

Answer 23

(iii) Duty to Trespassers: OLA 1984
• The Act covers occupier’s liability for trespasser.
• The Act extends the common law duty of care to trespassers as well as visitors, providing that this duty is to be required when the occupier has actual or constructive knowledge that a danger exists and that a trespasser is or may be near it.
• Unlike OLA 1957, the 1984 Act only allows an injured trespasser to claim for death and personal injury, not for damage to personal property. The Act also makes amendments to UCTA 1977, with the stated intent of allowing additional educational and recreational use of land.
• Summary
o A duty of care is owed to a trespasser where a scenario may be considered to pose a risk and it is likely that the trespasser would incur that risk–
♣ However, a duty of care may be discharged if (5) there were reasonable attempts to discourage the trespasser from using the property or had given enough warning
♣ (6) or when the trespasser accepts the risks to himself.

Question 24

British Railways Board v Herrington 1972 AC 877 (nb. pre-1984 Act)

Answer 24

• Facts
o A six-year-old boy was electrocuted and suffered severe burns when he wondered from a play park onto a live railway line. The railway line was surrounded by a fence however, part of the fence had been pushed down and the gap created had been used frequently as a short cut to the park.
o The defendant was aware of the gap in the fence which had been present for several months, but had failed to do anything about it.
o The HL here said that the railway defendant owed a duty of common humanity to trespassers and departed from the authority of Addie v Dumbreck pre-1984 Act which showed that there was no duty of care owed to trespassers.

Question 25

Revill v Newbury 1996 2 WLR 239, 1996 1 All ER 291

Answer 25

• Facts
o Mr Newbery owned an allotment which had a shed in which he kept various valuable items. The shed was subject to frequent break ins and vandalism.
o Mr Revill accompanied by Mr Grainger, went to the shed at 2am to break in. Mr Newbury awoke, picked up his shot gun and fired. The shot hi Mr Revill in the arm. It passed right through the arm and entered his chest.
o Both parties were prosecuted for the criminal offences committed. Mr Revill pleaded guilty and was sentenced. Mr Newbery was acquitted of wounding.
o Mr Revill brought a civil action against Mr Newbery for the injuries he suffered. Mr Newbery raised the defence of ‘ex turpi causa’, accident, self-defence and contributory negligence.
• Held
o The claimant’s action was successful but his damages were reduced 2/3 under the Law Reform (Contributory Negligence) Act 1945 to reflect his responsibility for his own injuries.
o Neill LJ –
♣ ‘Law Commission rejected the suggestion that there should be no duty at all owed to a trespasser who was engaged in a serious criminal enterprise.’

Question 26

**Tomlinson v Congleton 2003 3 All ER 1122, 2003 3 WLR 705 (HL)

Answer 26

• Facts
o The claimant, visited an artificial lake with his friends. While there, C dived into the water and hit his head on the sandy bottom, leaving him tetraplegic.
o Note that swimming was not permitted in the lake and there were notices saying ‘Dangerous waters. No swimming.’
o C brought proceedings against Congleton Borough Council under the OLA 1984 (as a trespasser), claiming for loss of earning, loss of quality of life and the cost of the care he would require as a result of his injuries.
o The CA had held that the council were liable but reduced the damages by 2/3 under the Law Reform (Contributory Negligence) Act. The defendant appealed.
• HL
o The council were not liable.
o No risk arose from the state of the premises as required under s1(1)(a) OLA 1984. The risk arose from the claimant’s own action. He was a person of full capacity who voluntarily and without pressure or inducement engaged in an activity which had an inherent risk.
o Even if there was a risk from the state premises, the risk was not one against which the council would reasonably be expected to offer the claimant some protection under s1(3)(c).
Lord Hoffmann looked at the position if he had not been a trespasser and applied the common duty of care owed under the OLA 1957. He was of the opinion that there was no duty to warn or take steps to prevent the claimant from diving as the dangers were perfectly obvious.

Question 27

*Donoghue v Folkestone Properties 2003 QB 1008 (CA) – timing of event

Answer 27

• Facts
o A professional navy diver after a few cans of beer was ‘merry drunk’ as opposed to absolutely smashed decided that it was a good idea to go for a midnight and mid winter dive at a nearby harbour. Upon arrival the claimant proceeded to dive straight off the harbour, and breaking his neck in the darkness rendered him tetraplegic.
• Held
o Under s1(1)(3) of OLA 1984, the occupier will only owe a duty of care towards a trespasser if:
♣ 1. The occupier is aware of the danger and has reasonable grounds to believe that they exist; and
♣ 2. Has reasonable grounds to believe that the trespassed is in the vicinity of danger; and
♣ 3. It is reasonable to expect the occupier to offer some protection.
o The first test is subjective and the court found that the occupier of the harbour would not have foreseen that the grid piles would have been a danger to an experienced diver such as Mr Donoghue.
o The court found that the defendant did not expect anyone would go swimming during the winter therefore Mr Donoghue failed the second limb of the test, and by virtue of being a trespasser Mr Donoghue is not owed a general duty of care that an OLA 1957 claim is owed.

Question 28

Rhind v Astbury Water Park 2004 EWCA Civ 756 – occupier unaware of risk

Answer 28

• Summary
o A claimant who had suffered injury by ignoring a prohibition upon swimming and diving into a shallow mere where he hit his head on an obstacle buried into the silt was unable to establish that the owner of the mere was liable because he could not satisfy the requirements of the OLA Act 1984 s1(3)(a) to establish a duty of care.

Question 29

Young v Kent County Council 2005 EWHC 1342 - contributory negligence

Answer 29

• Facts
o The claimant was aged 12 at the time of the accident. He was at a Youth Club which was operating on the school’s premises. He climbed onto the roof and fell through a brittle skylight.
o There was a report which noted a problem with access to the roof prior to the accident.
• Held
o The state of the premises was inherently dangerous given the brittle nature of the skylight. The area was a known meeting place for children. The council knew or ought to have known that children were likely to climb the flu onto the roof. The solution to the problem was low cost. There was a duty to protect children.
o If the claimant had not been a child, he would not have recovered anything. However, as the claimant was as much to blame as the council, the claimant’s contributory negligence would be assessed at 50%.

Question 30

*Keown v Coventry Healthcare Trust 2006 1 WLR 953 (CA) – 11 yr old, put himself at risk

Answer 30

• Summary
o An 11-year-old child who had climbed the outside of a fire escape was not at risk of suffering injury by reason of any danger due to the state of the premises within the OLA 1984 s1(1)(a) but had put himself at risk through his own choice to indulge in a dangerous activity. If there was a danger attributable to the state of the premises, thus giving rise to a potential duty, the content of the duty might vary according to whether the trespasser was a child or an adult, but until that point was reached, the age of the trespasser was not relevant.
• Facts
o The Healthcare Trust appealed against the decision that it was liable for the personal injuries suffered by the trespasser K. K had been 11 years old at the time of the accident. He had been climbing the underside of a fire escape at the trust’s hospital premises when he fell to ground and was injured.
o The judge held that there existed a danger due to the state of the premises within OLA 1984 s1(1)(a). He held that K was 2/3 responsible for what happened.
• Held
o Appeal allowed.

Question 31

Defective Premises Act 1972 s 3 (Contractors), s 4 (Lessors)

Answer 31

Liability of Others (Non-Occupiers):
• S3 – duty of care with respect to work done on premises not abated by disposal of premises.
• S4 – Landlord’s duty of care in virtue of obligation or right to repair premises demised.

Question 32

Sykes v Harry 2001 3 WLR 62 (CA) - landlord liability re CO poisoning, Duty = reasonable care in all the circs

Answer 32

• Summary
o Under the Defective Premises Act 1972 s4 a landlord was required to take such care as was reasonable in the circumstances to ensure that the tenant was reasonably safe from injury, and s4 did not impose on the tenant an obligation to establish that the landlord had had notice, whether actual or constructive, of the relevant defect.
• Facts
o S appealed against the dismissal of his claim for personal injuries which he had brought against his landlord, H.
o Having been injured as a result of gas and fumes coming from a gas fire, S had brought proceedings against H, relying both on the Defective Premises Act 1972 s4 and on the Landlord and Tenant Act 1985 s11, which imposed on H an implied obligation to keep the gas fire in repair and proper working order.
o The judge had ruled that the facts, including the absence of knowledge of the relevant defect on the part of H, were insufficient to establish liability against him.
• Held
o Allowing the appeal, that the judge had erred in concluding in concluding that for the purpose of establishing liability under s4 of the 1972 Act, S had to show that H had had actual or constructive notice of the relevant defect in the gas fire. While notice on the part of the landlord had to be established, under s4 it merely had to be shown that the landlord had failed to take such care as was reasonable in the circumstances to ensure that the tenant was reasonably safe from injury. Had the judge approached the matter correctly, he would have found H liable under s4.

Question 33

Tutorial question

Answer 33

1. Arthur owns a scrap yard where he has a large number of disused vehicles piled on top of one another. Young children are always coming into the yard from an adjoining playground to play with the cars. Arthur used to chase them off, but they kept coming back and five years ago he gave up and contented himself with putting up a prominent notice stating:

He got an estimate for the cost of fencing the premises, but at £15,000, he considered this option too expensive. The profit from the business was only some £30,000 per annum.

One day, Dennis and Gnasher, both aged 6 years and unable to read, come into the yard to play. Arthur sees them coming from a distance, but does nothing. Later, he is operating a crane to remove a vehicle from the top of the pile when he dislodges a car, which falls on Dennis, injuring him.

In another part of the yard, Gnasher is playing underneath another pile of vehicles, with one car balanced precariously on top. A gust of wind blows the car off onto Gnasher’s leg.

Gnasher is trapped. Arthur fears trying to move the car in case this causes a further collapse of the surrounding vehicles. He calls the fire-brigade. When they arrive Arthur warns the firemen that there is an imminent danger of further collapse. This is in fact happens and Dibble, one of their number, is killed. A fire-engine is also damaged.

Advise Arthur as to his liability to Dennis, Gnasher, Dibble and the fire-brigade.

Make a check-list of answers to the following questions (for your own notes):

(i) Who is an occupier for the purposes of the 1957 and 84 Acts?

(ii) Who is a visitor for purposes of the 1957 Act?
- When does a person have implied licence to be on another’s land?
- Are emergency interveners ‘visitors’?

(iii) Do the 1957 and 1984 Acts cover damage caused by activities carried out on the land, as opposed to damage caused by the defective/dangerous state of the land itself?
Yes. We have the case involving pyrotechnic fireworks.

(iv) Does either the 1957 Act or the 1984 Act cover damage to property?
I think it only covers personal damage.

(v) Is it possible to exclude the duty owed to trespassers under the 1984 Act?
No.

(vi) Where duty is notionally excluded/restricted by a notice, in what circumstances will the validity of the exclusion be controlled by the UCTA 1977?
• So far as it is reasonable, according to UCTA.

Notes on chap 12

Central issues
• The duties considered in this theme are different from the duties in private and public nuisance and under the rule in Rylands v Fletcher, in that they are owed to parties who are present on the premises, and not to neighbouring occupiers.
• The duties in question concern dangers encountered on the premises. The relevant duties and liabilities have now been codified by two pieces of legislation – OLA 1957 which applies to visitors, so those who have the right or permission to be present and OLA 1984 which applies to other tenants on the premises, including trespassers.
• In their contents the duties under the 1957 and 1984 Acts are similar to negligence duties. Indeed, the occupiers’ duties to visitors and licensees were among the examples of duties to take care mentioned by Lord Atkin in Donoghue v Stevenson. On the other hand, it is unusually clear in the case of the occupier’s liabilities that some positive duties are intended.