Occupiers Liability

Question 1

who is an occupier?

Answer 1

someone who has a sufficent degree of control over a property

Wheat v Lacon

Question 2

Occupiers Liability Act 1957

Answer 2

Prior to this statute, the extent of liability owed by an occupier depended upon the nature of the relationship w/the person injured.

The OLA 1957 abolished this in favour of two categories:

1. Lawful visitors; who were protected by the act
2. all others, who were not protected : mostly all protected by the act now.

Question 3

OLA 1957 purpose:

Answer 3

the purpose of the act is to ‘regulate the duty which an occupier of premises owes to his visitors in respect of damages due to the state of premises or to things done or omitted to be done by them.

Question 4

occupiers?

Answer 4

can be more than one occupier
this includes physical control of premises and legal control
in Harris v Birkenhead Corporation: the council was the occupier of an empty house even though it had not taken physical possession as it had served a notice of compulsory purchase on the owner thus was in legal control of the property.

Question 5

WHAT ARE PREMISES?

Answer 5

the def of premises is wide and covers not only land and buildings but also ‘any fixed or movable structure, including any vessel, vehicle or aircraft…

• a ship in a dry dock: London Graving Dock v Horton
• aircraft: Fosbroke-Hobbes v Airwork
• scaffolding and ladders: Wheeler v Copas.

Question 6

who is a visitor?

Answer 6

three categories:

1. those w/express permission
2. those w/implied permission
3. those w/a right to enter.

Question 7

EXPRESS PERMISSION

Answer 7

Invitees - S.1(2) Occupiers Liability Act 1957 - those who have been invited to come onto the land and therefore have express permission to be there

OR could be a licencee

Question 8

complications w/express permission?

Answer 8

when someone that has had express permission, but exceeds the extend of permission that has been granted.

An occupier has a right to limit the way in which a visitor behaves whilst on his premises, and a visitor who deviates from this… will be a trespasser.

Question 9

invitee to trespasser quote…

Answer 9

‘when you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters’

THE CALGARTH

Question 10

implied permission

Answer 10

those who have not been prohibited from entering the premises but have not been explicitly invited and who are assumed not to be objectionable to the occupier

e.g. it is accepted that a person who enters premises wishing to speak to the occupier or to make a delivery has implied permission to do so.

Question 11

implied permission limitations?

Answer 11

also subject to limitations, which, if exceeded would render the person a trespasser but it can be more complicated to determine the boundaries of implied permission.

• it would be likely to include situations as entry into parts of property that have no relation to the purpose of this visit e.g. a delivery person can enter the porch but not wander around the gardens.

Question 12

Harvey v Plymouth City Council

Answer 12

it was held that implied permission to enter must be exercised properly: the duty to ensure that land is safe for visitors to enter is limited to the ordinary use of the land.

Carnwarth LJ:
- an implied licence for general recreational activity cannot, in my view be stretched to cover any form of activity, however reckless.

Question 13

occupier knows about people on land

Answer 13

if an occupier knows his land is used by trespassers but does nothing to prevent them from entering his land, this may amount to implied permission to enter.

Question 14

trespassers and implied permisson

Answer 14

Lowery v Walker:
FACTS:
- a path across D field was used as a short cut to the railway station by several people.
- D was aware of this and objected to it but didn’t take any active steps to stop the occurence.
- w/out warning, the D put a wild horse in the field which attacked the claimant.

LEGAL PRINCIPLE:
- it was held that D awareness of the presence of people on his land and his failure to stop or limit their actions amounted to an implied licence to enter the property.

Question 15

those w/a right to enter

Answer 15

the law gives rights of entry to certain categories of people which render them w/in the definition of lawful visitor irrespective of the wishes of the occupier of the land e.g. police officers entering under warrant.

Question 16

contract S5

Answer 16

implied terms from a contract can give people the right to enter a property e.g. staying at a hotel and paying for it

Question 17

Duty of care

Answer 17

OLA 1957 S2.2
- the common duty of care is… to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited/permitted by the occupier to be there.

Question 18

under S2.1 of OLA 1957

Answer 18

provides that an occupier may extend, restrict, modify, or exclude his duty to visitors by agreement or otherwise.

Question 19

the duty…

Answer 19

to ensure the visitor doesnt get injured on the premises. this is NOT the duty to keep the premises safe so the duty may be satisfied if the occupier displays warning signs/cordons off areas that are dangerous.

Question 20

deviations from the common standard of care?

Answer 20

children and experts

Question 21

children:

Answer 21

an occupier must be prepared for children to be less careful than adults: S2.3A OLA 1957

Question 22

skilled visitors:

Answer 22

an occupier may expect that a person, in the exercise of his calling, will apperciate and guard against any special risks or ordinarily incident to it. S2.3B OLA ‘57

Question 23

CHILDREN

Answer 23

case law has sought to balance responsibility between occupiers and parents…

Phipps v Rochester

Question 24

Phipps v Rochester

Answer 24

CASE FACTS:

• a 5 year old child played on land under development by the local council
• on one occasion, he fell down a trench dug by the council.

LEGAL PRINCIPLE:

• the court held that the D was entitled to assume that parents would take primary responsibility for the safety and control of their children.
• as a prudent parent woudl not have allowed a child of that age to play on a building site unattended
• there was NO liability as the D could not have been expected to protest against unforeseeable risks.

Question 25

shifting the blame onto parents…

Answer 25

this was it was not socially desireable for parents to shift the burden of protecting thier children from harm from themselves to land owners.

seen also within Bourne Lesiure v Marsdon
- COA held there was NO breach of duty by the occupiers of a holiday park in which a two year old drowned in a pond (even though the fence around the pond was not high enought to prevent the child climbing in)
since the danger would have been ovbious to adults and it was reasonable to expect a child of that age to have been supervised by an adult.

it is likely, however a duty will exist if land holds concealed dangers or allurements that tempt children into danger.

Question 26

Glasgow Corporation v Taylor

Answer 26

CASE FACTS:

• a seven year old child died after eating poisonous berries in a public park.
• the plants were fenced off but they were no notices warning that the berries were poisonous.

LEGAL PRINCIPLE:

• it was held that the plants did not present an obvious risk of danger so the council should have taken measures to draw attention to the concealed danger that they represented.
• the court also commented that an occupier who is aware that something on his land would act as an allurement to children (such as berries that look edible) must take greater care to protect against this risk involved.

Question 27

the level of care expected?

Answer 27

will depend upon the nature of the risk and the age and awareness of the child.

FOR EXAMPLE: in Titchener v BRB: no duty was owed to a 15 year old boy who was struck by a train whilst walking on a railway line at night as he aware of the dangers posed by his activity.

Question 28

skilled visitors

Answer 28

the law expects skilled visitors whose expertise gives them greater awareness of risks of harm than the ordinary visitors to protect themselves.

this does not mean that occupiers have no duty towards skilled visitors; it depends on the nature of the risk

Question 29

Warning signs…

Answer 29

Occupiers Liability Act 1957 S2.4A

• where damage is caused to a visitor by a danger of which he had been warned by the occupier
• the warning is NOT to be treated w/out more as absolving the occupier from liability
• unless in ALL the circumstances it was enough to enable the visitor to be reasonably safe.

Question 30

whether a warning sign was enough?

Answer 30

1. how specific was the warning? e.g. caution slippery surface
2. how obvious was the danger? hidden dangers necessitate greater efforts to call attention to them than readily apparent risks.
3. is the sign combo w/other safety measures?
4. what sort of visitor is targeted? e.g. more needed to protect children.