Occupiers' Liability Flashcards
General problem tips
- First identify all possible claimants and defendants
- Don’t think too early on that a question is necessarily about x (ex. occupiers liability)
- “Because the College, as owner, clearly has sufficient control for the purpose of Wheat v Lacon, they are an occupier” never just say “it is clear” – always back it up
- The more specific a warning is, the more likely that the court would accept that it would in all circumstances be reasonable to make the person safe (but beyond this it is just a question of fact)
- 1957 Act says can be excluded “insofar as” one is free to do so – suggests that the Ashdown test is carried into the act don’t just say that they are free to do so.
- Does the noticeboard appear to be entirely directed at students, or at visitors? This might be relevant to the question of whether it has been sufficiently brought to the attention of the visitor.
- Notices are binding on children because children are not trespassers because they have a license, and if they have a license then the license can have conditions attached to it (and because in the same way that a child may not understand limits attached to their license, in the same way they can’t think they have an unconditional license either)
- Because the notice is inside the walls, then until they see the notice they have an unconditional license
- s64(4) CRA 2015‼‼‼‼ On how prominent the sign has to be but the problem is that this provision only applies to that particular section so is irrelevant.
- Trader “acting relating to the purposes of business” (s2) “acting” means letting the specific visitor in, or does it mean occupying the premises? Does it mean putting up the notice? If the latter, then if it is expected to be seen by a consumer, is that enough? If we don’t define a “trader” more generally, then what is the role of s66 exception?
o The definition in s2 is “relating to the purposes of business..” whereas in s66 it’s “within the purposes of business…” so it appears broader. - 3 elements to show for s66(4):
o Access for recreational purposes
o Person suffers loss or damage because of the dangerous state of the premises
o Recreational purposes were not within the - s65(2) (excluding volenti) solves the problem that the CRA 2015 appears to prohibit only exclusions and limitations of liability and not disclaimers of duty – you can’t get out of the duty
- Articulating the test is much more important than applying the test to the instant case (ex. the test for visitor/trespasser = whether the occupier
- When questions of fact: “unless special facts are proved, there is likely to be a duty”
- For Delia: Negligence duty of care under Haynes v Harwood (because in a rescue setting we don’t treat as breaking the chain of causation if there is negligence with respect of Jane) – or there might be a duty only to the rescuer (ex. D is putting on a show where it looks like people are being injured though they are not, but that induces people to come and try to rescue these people)
- Can Jane be sued? If you (negligently) put yourself at risk and it is foreseeable that someone might come and rescue you, then you might be liable.
Problem Q structure OLA 1957
- Cite s2 OLA 1957
Pretty straightforward
Problem Q structure OLA 1957
- Is there a duty in the first place with respect of the particular injury suffered?
a. What are premises? (S1(3))
b. Who is an occupier? (Wheat v Lacon)
c. Who is a visitor?
i. Someone invited or permitted to enter (s1(2))
1. Did D invite or permit C to enter?
2. Did someone who had the ostensible authority to issue such an invitation on D’s behalf invite C to enter? (Ferguson v Welsh)
3. Is D estopped from denying that C entered as his visitor because he (or someone with ostensible authority to act on his behalf) reasonably led C to believe that he had invited or permitted C to enter?
4. If either (a), (b), or (c) is true, did C cease to be a visitor by using the premises for a purpose other than that for which he is invited or permitted?
ii. Persons on the premises in the exercise of a right conferred by law (s2(6)
1. Excludes those entering in exercise of rights conferred by the Countryside and Rights of Way Act 2000 or National Parks and Access to the Countryside Act 1949 – these come under the 1984 Act (s1(4))
d. Did the danger arise due to the state of the premises?
i. S1(1): “state of the premises or things done or omitted to be done on them” (Fairchild (CoA), Tomlinson v Congleton) this is the same for both the 1957 and 1984 Acts
ii. Activity or occupancy danger distinction
1. Was the injury suffered by reason of dangers due to the state of the premises?
2. Were there children, and does this influence the characterization?
Problem Q structure OLA 1957
- Was the duty discharged or excluded?
(a) Discharge by making the premises reasonably safe
a. (warning or taking steps to remove the danger)
i. Warning: must be enough to enable C to be reasonably safe (s2(4)(a))
1. [NB that the 1984 Act (s1(5)) says something slightly different – it is enough to “give warning of the danger concerned or to discourage persons from incurring the risk” – Roderick thinks that the difference stems from the fact that a trespasser can always back away and leave whereas a visitor may have no choice but to stay]
ii. Children: must be prepared for children to be less careful than adults (s2(3)(a)) (but can also expect children to be accompanied by parents)
1. Phipps v Rochester (C fell into trench, held that D did not breach his duty by doing nothing because he could have expected C to be accompanied by parents)
2. However, Roderick thinks that what can be expected nowadays might be different to what was expected in 1955 [though I think if anything the expectation that children be accompanied is higher nowadays than it was in 1955 because of the proliferation of cars, criminals…]
3. Thus Bourne v Marsden (2009): D, owners of a caravan site, did not breach their duty of care by doing nothing to warn the parents of a 2yo boy of the presence of a pond on the site, in which he drowned, because it would have been obvious to the parents that it would be dangerous to let a 2yo wander around the site unaccompanied.
iii. Known risks: no duty to take special steps to protect a visitor against a risk that the visitor knows about and can easily avoid (s2(3)(b) and s2(4)(a))
iv. Obvious risks (Tomlinson v Congleton)
v. Accepted risks: common duty of care does not require an occupier to protect visitors against risks willingly accepted by the visitor (s2(5))
1. ex. Simms v Leigh Rugby Football Club: D, rugby club, did not owe C, player, a duty to take care to ensure that C was not injured by being thrown against the concrete barrier around the pitch, which barrier was installed in accordance with the byelaws of the game as laid down by the Rugby Football League
2. However, scienter (knowing) is not volens – knowing will not be acceptance if C had no choice but to enter the premises (ex. Burnett v British Waterways Board – employee was injured while on premises where he knew there would be that kind of risk, but he had no choice but to stay there)
vi. Delegation (s2(4)(b))
Problem Q structure OLA 1957
Problem Q structure OLA 1957
- Was the duty discharged or excluded?
(b) disclaimer
expressly allowed by s2(1) OLA 1957 – can be by agreement “or otherwise”)
i. Attachment:
1. “By agreement” = contract
2. “Or otherwise” = implicit reference to Ashdown v Samuel Williams (merely notifying a visitor that you’re not accepting any responsibility for their safety is effective) – appears from the case that three cumulative conditions must be made out:
a. C saw the notice
b. C understood the notice
c. C entered the land by virtue of being invited or permitted, rather than by right
ii. Interpretation: must cover the actual danger that gave rise to the injury
iii. Validity
1. D is a business?
a. C is a consumer Consumer Rights Act 2015
i. D must be a “trader” (person acting for purposes relating to their trade, business, craft or profession) and C must be a consumer (individual acting for purposes other than trade, business…)
ii. Are there multiple interpretations possible? Interpretation most favorable to the consumer prevails (s62(1))
iii. Is it unfair (i.e. contrary to the requirement of good faith, causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer)? invalid (s62(6))
iv. Is it trying to exclude liability for death or personal injury resulting from negligence (encompassing breach of OLA)?
1. C obtained access to the premises for recreational purposes and the purpose is not within the purposes of the occupier’s trade, business, craft or profession? Valid – can exclude liability (s66(4))
2. No? Invalid (s65(1))
b. C is not a consumer UCTA 1977
i. There must be business liability (i.e. a person in the course of a business whether his own or another’s)
ii. It is for recreational or educational purposes, where these are not the business’ purposes? Excluded, so the Act doesn’t apply (s1(3))
iii. If the Act applies, exclusion or limitation for death or personal injury resulting from negligence (including breach of OLA duty (s1(1)) = invalid (s2(1)); other losses only if reasonable (s2(2))
2. D is not a business? No Act – attachment and interpretation are enough.
Problem Q structure OLA 1957
- Was the duty discharged or excluded?
(c) Exclusion
C contracts away his right to sue a D for damages if X happens “No liability accepted for…”)
i. Valid subject to:
1. Statutory provisions preventing D from doing so
2. C reasonably gave D the impression that C has agreed not to sue D
3. C has received “consideration” for agreeing to do this
Problem Q structure OLA 1957
- Was there causation?
a. Wrong kind of loss?
i. ex. Darby National Trust: D owed and breached his duty under the 1957 Act in failing to warn C that he might contract Weil’s Disease if he went swimming in D’s pool, but in this case C actually drowned – the drowning was the wrong kind of loss
Problem Q structure OLA 1957
- Was the loss suffered actionable damage?
a. Physical injury is included
b. Property damage included also (i.e. common duty of care extends to any property lawfully on the premises is not damaged as a result of the occupier’s premises being in a dangerous condition, which duty will be owed to whoever happens to own the property, whether or not they are visitors) (s1(3))
Who is the occupier?
*Wheat v Lacon [1966] AC 552
Who is an occupier; #Multiple occupiers; #Extent of duty; #No breach
Facts: D, brewers who were owners of a public house, entrusted the house to a manager who lived on the first floor. C, guests who also stayed on the first floor, fell and injured himself because the handrail was too short and there was insufficient lighting.
Held (HL): Ds were occupiers of the first floor and owed a common duty of care under the 1957 Act, though they did not breach it. Manager and owner could both be occupiers simultaneously.
Lord Denning:
Owed a duty (yes): Question is whether brewers had sufficient control to put them under a duty to a visitor. They were definitely occupiers of the ground floor, since they managed it, but they also had enough control over the first floor because they hadn’t given C a lease but merely a license to occupy, and had the power to do repairs owed a duty.
Extent of the duty: Ds had a duty to ensure structure, furniture etc. were safe, but not to ensure that the light was turned on or that the rug was placed at the right place on the floor.
Breach of duty (no): It appears that the light was removed by a stranger shortly before the accident, and the handrail couldn’t have been supposed to be dangerous. No liability for acts of a stranger.
NB: not all judges applied Lord Denning’s reasoning – Viscount Dilhorne said the owner was occupying the room through the employee.
Who is the occupier?
AMF International v Magnet Bowling [1968] 1 WLR 1028
Issue 1: Who is an occupier?
Issue 2: What do you need to do to ensure independent contractors are trustworthy etc.?
Facts: C began installation of their bowling equipment in D’s partially completed premises, which was later flooded after heavy rain because a doorway was faultily constructed, damaging C’s equipment. C claimed in tort under the OLA 1957.
- D1 argued that it came under s2(4)(b) OLA 1957 (the occupier is not to be treated without more as answerable for a danger caused by the faulty execution of work done by an independent contractor employed by the occupier, as long as he acted reasonably in entrusting the work to the IC and had taken such steps, if any, as he reasonably ought in order to satisfy himself that the IC was competent and work properly done) by entrusting the construction of the building to a reputable contractor under the supervision of qualified private architects.
- D2 (builders) argued that they were not occupiers because of the interposition of D1.
Held:
- D1 owed a duty and breached it: they were not within s2(4)(b) because they employed private architects in association with their own salaried architects, and because they didn’t take steps before allowing C to enter the partially completed premises to satisfy that D2 had done their work properly
- D2 was an occupier (along with D1), and breached their common law duty by failing to take reasonable steps to provide precautions against flooding (applying Wheat v Lacon)
Issue 3: Indemnity clauses
Facts: there was an indemnity clause in the contract between D1 and D2, whereby D2 agreed to indemnify D1 in respect of “any injury or damage whatsoever to any property real or personal…”.
Held: D1 was not entitled to be indemnified by D2 because indemnity clauses cannot found a claim in respect of consequences of C (D2)’s own negligence unless the clause allowed of such a claim by express words or necessary implication.
Who counts as a lawful visitor?
A – Ostensible Authority
Ferguson v Welsh [1987] 3 All ER 777
Facts/held
Facts: A contracted with B to do building work, and expressly prohibited subcontracting. B nevertheless contracted with C who adopted unsafe practices and injured employee, D. Issue was whether A owed a duty of care under the 1957 Act to D, i.e. whether D was a lawful visitor with respect of A.
Held (HL): Council (A) owed a duty, but hadn’t breached it.
Who counts as a lawful visitor?
A – Ostensible Authority
Ferguson v Welsh [1987] 3 All ER 777
Issue 1: Was D a visitor with respect to A?
Was D a visitor with respect to A?
- Lord Keith:
o D is obviously a visitor with respect to B (because B invited him in). A and B’s contract specifically prohibited sub-contracting without A’s consent, which was not sought in this case, and there was no evidence that A knew that B was subcontracting unlawfully.
o However, “by putting B into occupation … for purposes of demolition A had clothed him with apparent or ostensible authority to invite other persons onto the premises, including sub-contractors and their employees. Such persons would know nothing of the limitation on B’s actual authority, and were not reasonably to be treated as trespassers in a question with the council”.
o B was placed in control of the site for demolition purposes, and to one who had no knowledge of A’s policy of prohibiting sub-contracts would indicate that he was entitled to invite whomsoever he pleased for the purpose of demolition.
- Lord Goff:
o A person may be a visitor in respect to one person but a trespasser in relation to another (where there are multiple occupiers)
o Whether this is so depends on “whether the occupier who authorised him to enter had authority, actual (express or implied) or ostensible, from the other occupier to allow the third party onto the land” (yes in this case).
Who counts as a lawful visitor?
A – Ostensible Authority
Ferguson v Welsh [1987] 3 All ER 777
Issue 2: The extent of the duty (activity or occupancy)
- Lord Goff
o There can be cases where work done on premises result in such premises becoming unsafe for a lawful visitor coming upon them (ex. a brick falls from a building under repair onto a postman), and in such circumstances the occupier might be held liable (subject to s2(4)(b)).
o However, in this case, did the injury arise from D’s failure to take reasonable care to see that persons in his position would be reasonably safe in “using the premises for the relevant purposes”? No – the injury arose not from his use of the premises but from the manner in which he carried out his work on the premises. Thus, OLA 1957 has nothing to do with the present case.
Who counts as a lawful visitor?
A – Ostensible Authority
Ferguson v Welsh [1987] 3 All ER 777
Issue 3: Did A fall into s2(4)(b)?
- Lord Keith:
o Applied the section purposefully holding that “construction” was wide enough to encompass “demolition” [though NB Roderick said that this was not necessary because they’re only examples].
o It would not ordinarily be reasonable to expect an occupier having engaged a contractor whom he has reasonable grounds for regarding as competent, to supervise the contractor’s activities to ensure that he was discharging his duty to his employees to observe a safe system of work. But if the occupier knows or has reason to suspect that the contractor is using an unsafe system of work, it might be reasonable to take steps to see that the system was made safe.
o Thus the question is whether A knew or ought to have known that B was subcontracting and the subcontractors were demolishing in an unsafe way. B was in a habit of subcontracting in unsafe ways [there is a suggestion that if A only contracted with B on the condition that B not subcontract, then the situation would be different], but there is no evidence that A knew or ought to have known that B was likely to contravene his prohibition (because B’s habit was when contracting with a different, earlier council, and there was no reason to suspect that he would continue). - Lord Keith:
o IJO the mere fact that an occupier may know or have reason to suspect that the contractor may be using an unsafe system of work cannot of itself be enough to impose upon him a liability under OLA 1957 (or negligence) to an employee of the contractor, even if the effect of that unsafe system is to render the premises unsafe.
♣ Example: a householder who employs an electrician, who sends another who uses an unsafe system established by the electrician and injures himself the householder won’t be responsible!
Who counts as a lawful visitor?
B. Implied License
Edwards v Railway Executive [1952] AC 737
Facts: C, a child, was injured on a railway line. For many years, children had gone onto D’s railway to toboggan down an embankment.
HL: C could not argue that when he entered D’s land for that purpose, he had done so as a visitor – D had done nothing to lead children like C to believe that they were permitted to do so; in fact, D had done its best to stop children from coming onto its land to play, by putting up a fence and seeking to repair it whenever children breached it.
- Lord Oaksey: in considering whether a license can be inferred, the state of mind of the suggested licensee must be considered – the circumstances must be such that he could have thought and did think that he was not trespassing but was on the property by license of its owner
- Lord Goddard: repeated trespass of itself confers no license… to find a license there must be evidence either of express permission or that the landowner has so conducted himself that he cannot be heard to say that he did not give it
Who counts as a lawful visitor?
B. Implied License
Lowery v Walker (1911)
Members of the public had for 35 years taken a short cut across D’s land, and during this time D never started legal proceedings to try to get people to stop. Held (HL) that by acting in this way D had led members of the public to believe that they were permitted to do this and could not therefore now argue that they were trespassing.
Who counts as a lawful visitor?
B. Implied License
Harvey v Plymouth City Council [2010] EWCA Civ 860
Facts/held
Facts: C fell down a sheer drop from land owned by D onto an adjacent Tesco car park, injuring himself. The land had been regularly used by the public for recreational purposes, and Tesco had put in a fence alongside the land bordering the drop. C had been drinking, at night, and were running from a taxi without paying when he tripped over the fence and fell.
Held: C was not a visitor. In deciding whether someone is a visitor, the question is not whether his activities were or might have been foreseeable but whether they had been impliedly consented to by D. D only licensed the land to the public for recreational purposes – normal recreational activities carrying normal risks. This would not be stretched to cover any form of activity, however reckless.
Who counts as a lawful visitor?
B. Implied License
Harvey v Plymouth City Council [2010] EWCA Civ 860
Issue: is C an implied licensee?
- Carnwath LJ:
o The land had been used for informal recreation for many years before the accident – there were remains of bonfires, signs of smoking, drinking and sexual activity, trampled vegetation beyond the fence…
o In contrast to Edwards where the land was set apart for operation purposes, here there is an area of open land adjoining a road in a built-up area, with nothing to suggest that its use is restricted. In assessing the state of mind of suggested licensees (per Lord Oaksey in Edwards), regular users of the land had every reason to think they were there with the license of the owners.
o The relevant issue is whether the license extends to the particular activities that led to the accident in this case: in Tomlinson there was an express restriction of the activity in question, but such a restriction can also be implied.
o What is the relevant test?
♣ What C thought about his legal status is not a useful guide in answering the question, given the circumstances and his mental state. But even sober people might not have realized that a certain action made them trespassers in the eye of the law.
♣ Foreseeability of C’s conduct by D is also not the relevant test; the question is rather whether D had impliedly consented to it – there is no evidence of this. When a council licenses the public to use its land for recreational purposes, it is consenting to normal recreational activities carrying normal risks – such an implied license cannot be stretched to cover any form of activity, however reckless.
o [However, suggests that in The Calgarth the guest might still be a visitor when sliding down the banisters but won’t be protected under the 1957 Act because that only requires steps “for the purposes for which he is invited or permitted to be there”, but Roderick thinks that this is dangerous because this leaves the guest in a legal limbo neither protected by the 1957 nor 1984 (because he is a visitor and not a trespasser) Act.
Who counts as a lawful visitor?
C. Ceasing to be a visitor
Tomlinson v Congleton BC [2004] 1 AC 46, HL
Facts/Held
Facts: D occupied a country park that attracted many visitors in hot weather, with a lake where swimming was prohibited. D displayed prominent “no swimming: dangerous water” notices, and employed rangers with the duty of giving oral warnings against swimming and handing out safety leaflets.
C knew that the notices were frequently ignored and did not prevent visitors from swimming, resulting in several accidents. They intended to plant trees around the shore to prevent people from swimming but had not yet done so because of a lack of financial resources.
C injured his neck by diving into the lake, and claimed a duty under the 1984 (!) Act.
Held:
- The risk did not arise from any danger due to the state of D’s premises within s1(1)(a) OLA 1984, but from C’s own misjudgment in attempting to dive in too shallow water that risk did not give rise to a duty on D
- In any event, it was not a risk in respect of which D might reasonably have been expected to afford C protection under 1(1)(c) OLA 1984
NB Lord Scott held that C was not a trespasser because he wasn’t swimming.
NB2 It was conceded by C that he was a trespasser – although Lord Hoffmann seemed inclined to think that he fell outside of s2(2) OLA 1957 because of the purpose, this point was not litigated.
Who counts as a lawful visitor?
C. Ceasing to be a visitor
Tomlinson v Congleton BC [2004] 1 AC 46, HL
Issue 1: Visitor or trespasser?
- Lord Hoffmann:
o Swimming was prohibited (there were signs and rangers), and though the prohibition was ignored by many people, it was hard to say that swimming or diving was one of the purposes for which C was invited or permitted by the occupier to be there (per s2(2)).
o But in the end, C conceded that he was a trespasser when he went into the water - Lord Hutton:
o D invited C to come to the country park but swimming in the lake was expressly prohibited, and C was aware of the prohibition. Thus, when he began to dive he became a trespasser. - Lord Scott:
o Visitor! He was a visitor to the park, and the notices forbade swimming in the lake, not entry into the water (they could splash around, lie in the shallow parts – only swimming was forbidden). But C did not suffer his injury while swimming – he dived into the water. At no stage did he swim. It can be said that dive was preparatory to swimming, but swimming at that shallow depth would be difficult. And in any case the injury was not caused while swimming and could not be attributed to the dangers of swimming.
o Analogy: notices forbidding the climbing of trees someone climbs trees and is injured = trespasser. But a claim under 1984 Act would be hopeless (duty to make the tree easier to climb?!?). The only contention is that the presence of trees posed an enticing challenge to visitors to the park, so that the council owed a duty to make it impossible for him and others to succumb to the temptation. But this duty is to prevent him from becoming a trespasser; thus, it would be a duty owed to him as a visitor under the 1957 Act (though it will fail).
[NB Roderick supports Lord Scott’s logic: if the duty is to not prevent your visitors from going into dangerous areas where they are not permitted to enter (i.e. to take reasonable steps to stop C from becoming a trespasser), then surely you have to look at the 1957 Act in order to determine whether any duty is owed while C is still a visitor, because by the time C becomes a trespasser (by entering the dangerous area) it would be too late to save them! But a majority of the HL still held that it is the 1984 Act that applies‼]
III - What risks is an occupier responsible for?
A – Activity vs Occupancy
Ogwo v Taylor [1988] AC 431
Facts/Held
Facts: the occupier negligently left a blow lamp on and set fire to the premises, the fire brigade was called and C, fireman, entered the premises to extinguish the fire and injured himself. He sued the occupier. There was nothing particularly flammable where the fire was set, and there was nothing unusual about the fire.
Held:
- There is no principle that precludes professional firemen from recovering damages from someone who by his negligent act had started a fire
- Fire that is out of control (whether ordinary or exceptional) is inherently dangerous, even to people with special skills, training and equipment
The occupier must have foreseen that by leaving the lamp on, he created a real risk of fire developing and the firemen being called, and suffering injury
III - What risks is an occupier responsible for?
A – Activity vs Occupancy
Ogwo v Taylor [1988] AC 431
Issue: Was this a case for consideration in the context of the OLA 1957?
- Brown LJ: no, because C suffered injury directly from the effect of heat generated by the fire rather than as a result of any defect in the premises. It so happened that this was a house fire; the result would have been the same if it had been a fire in open space and he were suing the author of the fire.
- Niell LJ: no, because the OLA duty is not wide enough to cover the present case. Although an occupier might owe a duty to firemen to warn them about unusual or unnecessary hazard at the premises (Merrington v Ironbridge Metal Works), there were no unusual features in this case and there were no special hazard. But he owed a wider duty under common law negligence.
- Dillon LJ: the judge had already found D to be negligent, and this finding has not been challenged in this court. So it’s unnecessary to consider the OLA, which does not impose any higher duty in these circumstances than at common law. The question is simply whether a person who negligently starts a fire (whether occupier, contractor or trespasser) may in the absence of special circumstances not known to the fireman be liable to a fireman who is injured in fighting that fire.
III - What risks is an occupier responsible for?
A – Activity vs Occupancy
Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052, at [113]-[155] (NB CA)
Brooke LJ:
- Before OLA 1957:
o The law made a distinction between occupier’s liability for dangerous condition of premises and occupier’s liability in relation to dangerous activities carried out on his premises (“occupancy duties” vs “activities duties”)
o D owed no occupancy duties in relation to C’s employer’s activities if C’s only complaint related to the dust raised in the course of those activities.
- Since OLA 1957:
o Is the distinction maintained? Yes – approves Lord Goff’s conclusions in Ferguson about the interpretation of s2(2) and the distinction between activity and occupancy duty.
o In this case, we are not concerned with an occupancy liability – OLA only imposes on D a duty to see that C was reasonably safe in using the premises for the purposes for which he entered them, and he encountered no dangers in his use of the premises (though he would have if he fell down an unguarded hole in the floor). It was what was going on in the premises that caused him harm.
- Any duty must therefore come from common law
o In Ferguson v Welsh Lord Keith made a distinction between “competent contractors” and “unsafe working methods of cowboy operators” recognizing that there might be special circumstances where negligence might impose a duty on someone other than an employer; this is not such a case – this case is concerned with competent employers.
o Argued that D ought not have regarded the employers as competent, but this is untenable because there is no evidence that D knew of the risk!
III - What risks is an occupier responsible for?
A – Activity vs Occupancy
Tomlinson v Congleton BC [2004]
Issue 1: what risks are due to the state of the premises?
- Lord Hoffmann:
o A danger due to the state of the premises or things done or omitted to be done on the premises (s1(1), but also relevant for the 1957 Act):
♣ State of the premises:
⇒ there was nothing about the lake that made it any more dangerous than any other ordinary stretch of open water, nor was the Council doing or permitting to be done anything that created a danger to people coming to the lake (ex. power boats etc.) the risk resulted from the inherent dangers of C’s activities and not D’s premises
⇒ C was a person of full capacity who voluntarily engaged in an activity with an inherent risk (i.e. that he might not execute the dive properly and get injured, in the same way that a mountaineer incurs the risk of stumbling and misjudging where he put his weight)
⇒ These are not attributable to the state of the premises.
♣ Things done or omitted to be done on the premises:
Argued that these consisted in the attraction of the lake and the council’s inadequate attempts to keep people out of the water, but “things done or omitted to be done” means activities or lack of precautions which cause risk (ex. allowing speedboats among swimmers); it is circular to say that a failure to stop people getting in the water was an omission that gave rise to a duty to take steps to stop people from getting into the water
III - What risks is an occupier responsible for?
A – Activity vs Occupancy
Keown v Coventry Healthcare NHS Trust [2006]
Facts/Held
Facts: C, aged 11, climbed the underside of a fire escape owned by D, and fell, suffering injuries. That area of the hospital was known as a place children liked to play. C sued under the 1984 Act, arguing that the fire escape constituted an allurement to children and that the hospital was aware of the danger.
Held (CoA):
- The threshold requirement [in the 1984 Act, but same in the 1957 Act] is not whether there was a risk of suffering injury by reason of the state of the premises, but whether there was a risk of injury by reason of any danger due to the state of the premises
o A fire escape is not inherently dangerous, so that if one chose to create a danger by climbing it improperly, knowing it was dangerous to do so, any danger was due to such person’s activity and not the state of the premises
- In general the age of C is not relevant but it is a question of fact and degree whether premises that were not dangerous from the POV of an adult could be dangerous for a child
o C was aware that there was a risk of falling and that his actions were dangerous and that he should not have been climbing; thus
- Thus, no risk arose out of the fire escape
III - What risks is an occupier responsible for?
A – Activity vs Occupancy
Keown v Coventry Healthcare NHS Trust [2006]
Issue 1: Can premises that are not dangerous from the POV of an adult be dangerous for a child?
- Longmore LJ:
o In Tomlinson a point central to the appeal was that C was a person of full capacity who voluntarily engaged in an activity which had an inherent risk (Lord Hoffmann). Does it make a difference that the C in this case is a child?
o Premises which are not dangerous from the point of view of an adult can be dangerous for a child but it must be a question of fact and degree:
♣ A duty to protect against obvious risks exists only in cases where there was no genuine and informed choice as in the case of some lack of capacity (ex. inability of children to recognize danger) (Lord Hoffmann) [NB this is in the case of the 1984 Act – in the 1957 Act there would be a duty but it can be discharged by doing nothing]
♣ Thus injury suffered by a toddler crawling into a derelict house could be due to a danger due to the state of the premises where an adult in the same circumstances might not be
♣ However, one cannot ignore a child’s choice to indulge in a dangerous activity in every case merely because he was a child; in this case C appreciated that there was a risk of falling and that he should not have been climbing the fire escape
o Thus, it cannot be said that C did not recognize the danger; the risk did not arise out of the state of the premises but out of what C chose to do
III - What risks is an occupier responsible for?
B – Obvious Risk/continuation of the activity/premises distinction?
Tomlinson v Congleton BC [2004] 1 AC 46, HL
Issue 2: What must D do to discharge of their duty in relation to an obvious risk?
- Lord Hoffmann:
o Judge: Because the risk of diving into a lake where it is shallow is “obvious”, there is no duty to warn against the danger nor do anything else. Even if the duty is owed under the 1957 Act D would not have been obliged to do more.
o Lord Hoffmann: the CoA’s approach that if there was a foreseeable risk of serious injury D was under a duty to do what was necessary to prevent it, is an over-simplification – “such care as in all circumstances of the case is reasonable” (whether under the 1984 or 1957 Act) depends, as in negligence, on not only the likelihood of injury but also the social value of the activity that gives rise to the risk and the cost of preventative measures – these must be balanced against each other (cites Bolton v Stone: no duty because socially useful activity, even though injury was foreseeable)
o In the 1957 Act we start with the assumption that there is a duty whereas in the 1984 Act we start from the assumption that there is none, but in both cases the result is the same.
o The balance under the 1957 Act:
♣ Suppose (putting it the most widely possible though Lord Hoffmann would have put it more narrowly like the judge) the relevant risk is any kind of water accident.
♣ There is some risk: 450 people drown while swimming in the UK every year and 25-35 break their necks diving
♣ Costs of taking preventative measures: the financial cost (5000 pounds) might not have been excessive, but this is not significant in the balance because the social value of activities that would have to be prohibited to eliminate the risk of swimming, and the consideration that the council should be entitled to allow people of full capacity to decide for themselves whether to take the risk are much more significant.
♣ There is an important question of freedom at stake: it is unjust that the harmless recreation of many would have to be prevented in order to comply with an alleged legal duty to safeguard irresponsible visitors against dangers that are perfectly obvious - Lord Hutton [expressly in relation to the 1984 Act but perhaps also applicable, if we apply Lord Hoffmann’s dicta, to the 1957 Act to show what is necessary to discharge the duty?]:
o In exceptional cases a claimant might be able to establish that the risk arising from some natural feature on the land (that is obvious and not latent) was such that the occupier might reasonably be expected to offer him some protection against it, for example, where there was a very narrow and slippery path with a camber beside the edge of a cliff from which a number of persons had fallen.
III - What risks is an occupier responsible for?
B – Obvious Risk/continuation of the activity/premises distinction?
Portsmouth Youth Activities Committee v Poppleton [2008] EWCA Civ 646
Facts: C visited a climbing wall operated by D, who operated by providing suitable premises and equipment and then leaving it to those who used them to do so sensibly without supervision. Rules were displayed on a board outside, including not jumping from walls (though it should have been more prominent). C tried to jump from wall to wall and fell, suffering injuries.
Trial judge held that D owed a duty to warn C that the thick mats did not make the climbing wall safe, but might encourage a belief that it did (though apportioned liability at 25% for contributory negligence).
Held (allowing D’s appeal):
- The risk of jumping from the wall was plainly obvious, and it was also obvious that no amount of matting would avoid absolutely the risk of severe injury from an awkward fall (which was an obvious and inherent risk of climbing).
- The law did not require D to prevent C from undertaking the activity (with its inherent risks), nor to train or supervise him, and it made no difference that the rules could have been made more prominent.
III - What risks is an occupier responsible for?
C – Risks created by independent contractors (duty to ensure that IC is insured)
Maguire v. Sefton Metropolitan BC [2006] 1 WLR 2550
Facts/Held
Facts: C used an exercise machine manufactured by D2 on the premises of D1, whose pedal failed suddenly and threw him backwards off the machine. Sued D2 for negligence and D1 for liability under the 1957 Act.
Held: Since C paid a fee to use the equipment, he was a visitor, and D1 owed a duty of care under the 1957 Act to ensure that all exercise equipment were safe. However, D1 had hired an independent contractor to examine the equipment six weeks previously – because they employed the best experts in relation to the machine, they discharged their duty under the OLA and the deficiency of D2’s inspection (he didn’t open up the machine while he should have) did not also render D1 liable.
III - What risks is an occupier responsible for?
C – Risks created by independent contractors (duty to ensure that IC is insured)
Maguire v. Sefton Metropolitan BC [2006] 1 WLR 2550
Issue: did D discharge their duty to C by hiring the independent contractor?
- Rix LJ:
o It was common ground that the IC was a competent IC for the purpose of inspecting and maintaining the equipment – indeed the IC was the manufacturer and supplier of this equipment and there can be no more suitable
o Generally speaking the equipment was robust and maintenance light – there was no evidence that any such machine had ever failed before by reason of the defect in this case
o D was entitled to rely on the IC to perform a proper inspection
♣ Argued that D was not entitled to so rely because the IC was doing the inspection for their own interests (it was a pre-contractual inspection) and so could not be at risk of being liable to any subsequent user injured by reason of a negligent inspection, but IJO this is wrong because the IC knew that the machine would no longer be examined for a very long time
♣ D, on the other hand, was entitled to consider that they were employing the best of all experts in relation to the machines, and were taking proper steps by reason of entering into the maintenance contract and by taking the pre-contractual inspection.
III - What risks is an occupier responsible for?
C – Risks created by independent contractors (duty to ensure that IC is insured)
Gwilliam v West Herts NHS [2003] QB 443
Facts: D1 hired a splat wall from D2, an IC selected from the phone book. D1 paid D2 an extra 100 pounds to provide staff for the splat-wall so that D1 would benefit from D2’s public liability insurance. C injured while using the splat wall because of the negligent set up of the wall by D2, whose public liability insurance had expired 4 days prior. C claimed that D1 owed and breached his duty to take reasonable care in selecting persons responsible for operating equipment at the fair, including that they were covered by public liability insurance.
Held:
- D1 was an occupier so owed a common duty of care under OLA 1957, and in order to discharge that duty, he was under an obligation to inquire into the insurance position of D2 so as to confirm his suitability for operating the splat wall
- Since members of the public had been invited to take part in inherently risky activities, which D1 chose to have organized by an IC, it was fair, just and reasonable to impose a duty on D1 to choose an IC who could properly meet any potential liability
- But this duty was fulfilled because D1 did inquire into D2s insurance, and it would be unreasonable to expect it to have checked the policy document
Per Sedley LJ: to construe D1’s duty as embracing a duty to ensure that visitors are reasonably safe from the consequences of a third party being uninsured is unprecedented and a jump across a factual and logical gap capable of triggering uncovenanted and unpredictable movements; in the absence of further information about its potential social and economic consequences, such a shift does not pass the test of being fair, just and reasonable.
Lord Woolf:
- S2(4)(b) is not concerned with whether a duty is owed but whether it has been discharged. It can only apply here by analogy (because the case doesn’t concern construction/maintenance/repair) but IJO there is no doubt that D1 could fulfill its duty by employing an appropriate, competent, independent contractor, but it must take the steps that it should to satisfy itself that the IC was competent, taking into account the nature of the task, which involves in this case ensuring that the IC was sufficiently experienced and reliable to be entrusted with ensuring that members of the public would be reasonably safe during a splat-wall (but this was satisfied by inquiring into D2’s insurance policy, though not examining it).
III - What risks is an occupier responsible for?
C – Risks created by independent contractors (duty to ensure that IC is insured)
Naylor v Payling [2004]
Facts/Held
Facts: C suffered injury on being ejected from D’s nightclub by a door attendant. D had employed an IC to handle security at the club and the attendant was the IC’s employee. The IC had no public liability insurance. C argued that D owed him a duty to ensure that the IC was insured, and breached that duty.
Held:
- Save in special circumstances, there was no free-standing duty on an employer to satisfy himself that his independent contractor had insurance cover, or would be able meet a potential claim
- The IC had provided employees who were licensed and approved by the local Pub and Watch Committee, and had been working for D for some 18 months prior to the accident and, in that time, nothing had occurred to raise questions about his competence.
III - What risks is an occupier responsible for?
C – Risks created by independent contractors (duty to ensure that IC is insured)
Naylor v Payling [2004]
Latham LJ
Neuberger LJ
Latham LJ: in the context of s2(4)(b) the question is whether D has met his obligation by employing an IC – it relates to the ability of that IC to ensure the safety of A’s visitors. D has no obligation to be insured or to be capable of meeting any liabilities that may arise – he cannot have a greater liability in regard to insurance merely because he employs an independent contractor. As such wrong to approach the matter by imposing a duty on D to ensure the IC was insured, but the question still remains as to whether there is an obligation to check the IC’s insurance position because this is necessary to assessing the IC’s competence.
This case is distinguishable from Gwilliam: in that case the IC was carrying out a one-time operation – the D there had no experience with the contractor, obtaining the name from a phone book. In those circumstances a check on insurance might have been a bearing on the assessment of whether the contractor was competent, but here the position was different. The IC provided licensed employees, and D had a significant period of time to assess the IC’s competence.
Neuberger LJ: save in exceptional circumstances, the law does not cast a free standing duty on an employer to satisfy himself that his independent contractor has insurance cover or would otherwise be good for a claim. An employer may fulfill his duty to satisfy himself that the IC is suitable for the task, but he has no duty to do so. This position is not undermined in Gwilliam – there, D1 asked about insurance, so it is natural that discussion focused on that point.
III - What risks is an occupier responsible for?
D – Warning
Roles v Nathan [1963]
A boiler expert stated that the boiler room was dangerous and ordered everyone out, but chimney sweeps stated that they knew better than he did and ignored his order, entering the room, and he removed them by force. Later, he issued another warning that it was still unsafe, but the sweeps went in anyway and didn’t complete the work, saying that they would come back on Saturday but actually coming back the same night, and both died.
Trial judge held the occupiers liable under the 1957 Act but apportioned liability at 50% for contributory negligence.
Held (CoA, Pearson LJ dissenting):
- The warning was in all circumstances enough to enable the sweeps to be reasonably safe within s2(4)(a)
Per Lord Denning: there would be no duty at any rate in regard to the dangers that caused their deaths because a householder by calling in a specialist to deal with defective installations, can reasonably expect the specialist to appreciate and guard against dangers arising from the defect (though things would be different if the danger was, ex. broken stairs). [Then says that even if he is wrong that no duty was owed, D had sufficiently discharged the duty by virtue of s2(4)(a)]
IV – Exclusion of liability
Ashdown v Samuel Williams [1957] 1 QB 409 (NB decided before UCTA 1977 – BUT – important on ‘conditions’)
Facts/Held
Facts: There was a shortcut that C, employee of D2, used to get to her place of work. Employees had used it for at least 20 years with the knowledge of D2 and D1 who never objected to it. D1 posted notices at various points over the estate, one in particular was on the private road at a point visible to those using the shortcut.
The notice said the road was private property and that all persons using it were there at their own risk and should have no claim against the first defendants for any injury or damage caused to them, whether due to the first defendants’ negligence or breach of duty.
C got injured by being knocked down by railway trucks (driven negligently by employees of D1) one time when using the shortcut. She admitted that she read the first few lines of the notice and could have read the rest of it.
Held:
- C came onto D’s land as a licensee under conditions contained in the notice, all of which were binding upon her though she had only read part of them, and that this was adequate to absolve D1 from liability for their negligence
- D2 had provided C with a reasonably safe way of reaching her work, that the dangers involved in crossing railway lines were patent and D2 were under no duty to warn her of the particular danger in question which they could not reasonably foresee
IV – Exclusion of liability
Ashdown v Samuel Williams [1957] 1 QB 409 (NB decided before UCTA 1977 – BUT – important on ‘conditions’)
Singleton LJ:
- On incorporation/attachment: if the conditions had been brought sufficiently to the notice of the plaintiff he would not have succeeded in his claim. In the present case the conditions were brought sufficiently to the notice of the plaintiff. She read part of the notice: she might have read all of it. She knew she went on to the land at her own risk.
- On interpretation: It is primarily directed to the “nature condition and state” of the property, but theword “property” is followed by the words “with everything thereon as he finds it.” There were railway lines and trucks upon the property, and shunting took place, as the plaintiff knew. She took the risk of an engine or a truck being in her way. and by later words in the notice she could not have a claim against the occupiers for injury or damage howsoever occasioned whether it was in any way whatsoever due to any negligent act, default or omission on the part of the defendants or their servants. These are wide words. I am unable to read them as applicable only to the static condition of the property: the presence of the lines of railway is sufficient to indicate that there will at times be movement of engines and trucks upon them, and the plaintiff knew that from the first time she went upon the property. In these circumstances, I cannot see that it is right to read the words “howsoever such injury and damage may be occasioned” as limited to the condition of the ground. I should feel more difficulty if we had to consider a claim arising from negligence in the driving by the defendants’ servants of a motor-car and damage arising therefrom. The danger arising from shunting operations was one which must have been present to the mind of everyone who went upon the property.
IV – Exclusion of liability
White v Blackmore [1972] 2 QB 651 (NB decided before UCTA 1977)
Facts/Held
Volenti only applies to risks that C willingly took and accepted, and does not extend to risks that he wasn’t aware of, such as those caused by negligence of the other pary. With regards to exclusion of liability, duty rests on whether sufficient steps have been taken to warn C of the exclusion and risks.
Facts: C, racer, killed in a Jalopy race because the ropes were negligently constructed. Notices warning the public of the danger of motor racing were displayed which stated that “it was a condition of admission that the organisers were absolved from all liabilities from accidents “howsoever caused” to spectators”. C came with his family and paid entrance for his family, and was allowed in free as a competitor. He was given programmes with a warning in small print on the inside page. After his race, he rejoined his family in the spectators’ enclosure to watch other races, during which he was killed by a negligently constructed rope. C sued the owners and D defended with 1) volenti and 2) exclusion of liability.
Held (CoA):
- C did not know of the risk caused by D’s failure to take proper safety precautions volenti does not apply
- At the time of the accident C was a spectator and since D, by the use of the words “howsoever caused” on the warning excluded their liability for accidents arising from their breach of duty of care, as they were entitled to do by s2(1) OLS 1957. Thus the claim failed (Lord Denning dissenting)
NB in this case:
- The notice said “WARNING” but was actually an exclusion (“you are present entirely at your own risk”; “it is a condition of admission, that all persons … are absolved from all liabilities arising out of accidents … howsoever caused”)
IV – Exclusion of liability
White v Blackmore [1972] 2 QB 651 (NB decided before UCTA 1977)
Denning Dissenting
Lord Denning MR (DISSENTING):
- S2(5) of the act accepts doctrine of volenti non fit injuria, but competitors can expect organizers to do all that is reasonable to ensure safety of competitors. Thus, organizer cannot invoke volenti for its own negligence
- Was there exclusion “by agreement or otherwise”?
o Agreement:
♣ By entering as a racer (he had an old programme which contained some warning that competitors entering the race did so at their own risk) no because he did not read it and it was not pointed out to him, and even if it were it would only exclude liability if he were hurt during the races and did not exempt the occupiers from liability for their own negligence
♣ Condition on the programme (equivalent to a ticket, because the programme says on the front page “Admission by programme”) in the inside page in small print applying ticket cases, this is insufficient because a ticket must say on its face, “For conditions, see back”.
♣ The “Warning to the Public” at the entrance no because it was not part of the contract, which was in the programme – it was not incorporated into the programme by reference or otherwise. C saw the notice and appreciated that it was a warning notice with some conditions, but he did not read it and did not know the precise terms of the condition; he is not to be bound.
o Or otherwise:
♣ The Warning? No because in the absence of contract, the organisers of a sports meeting cannot get out of their responsibilities by putting up warning notices. It would be intolerable if they could do so. There is no statutory regulation to provide for safety, so the answer must be the common law duty on organizers to take proper precautions.
♣ D tried to rely on Ashdown v Samuel Williams, but this doesn’t apply to situations where C entered by contract – the exemption must rest on contract
IV – Exclusion of liability
White v Blackmore [1972] 2 QB 651 (NB decided before UCTA 1977)
Buckley LJ:
- The liability of the organisers to competitor: C, when engaged in the role of a competitor, accepted all the risks inherent in the sport of jalopy racing. The organisers owed no duty to him to protect him against those risks.
- As a spectator, such a visitor was, I think, subject to the condition set out in the warning notice.
At the time when the accident occurred the deceased was, in my opinion, a spectator. The limitation on the liability of the organisers in these circumstances is to be found in the notice. The condition set out in the notice was that they were to be absolved from all liabilities arising out of accidents causing damage or personal injury howsoever caused. The use of the words “howsoever caused” makes clear that the absolution was intended to be of a general character. The effect of the condition must, in my judgment, amount to the exclusion of liability for accidents arising from the organisers’ own negligence. For these reasons I consider that the judge was right in dismissing the action. This makes it unnecessary for me to consider the effect of the warning notice which was printed on the inner face of the programm
Occupiers’ Liability to Trespassers - The Duty imposed by the Occupiers’ Liability Act 1984
NB Roderick thinks that the differences (property damage aside) is ideological (i.e. that people would be uncomfortable with the idea that the law affords the same protection to visitors as it does to non-visitors), but that practical differences between the two Acts are more apparent than real.
Indeed, Roderick thinks that (even under the 1957 Act), a visitor will not be able to sue for a dangerous feature x if either:
- D did not know and had no reason to know about x [MI because there would be no breach? What can you reasonably be expected to do about a danger that you had no reason to know about?] or
- D knew about x but had no reason to suppose that someone like C would go near it [MI because you can expect people to be careful?] or
- D did know about x but it would be unreasonable to expect him to do anything to protect D against being harmed by x [MI the balancing of benefit/cost in Tomlinson?]
Problem question structure
- Is a duty owed in the first place with respect to the particular injury suffered?
a. Occupier?
b. Premises?
c. Trespasser or otherwise covered by the 1984 Act?
i. A person entering any premises in exercise of rights conferred by the Countryside and Rights of Way Act 2000 or the National Parks and Access to the Countryside Act 1949 (s1(4) OLA 1959)
1. BUT in case of CRWA 2000: the occupier will not owe C a duty to protect them against a risk resulting from the existence of any natural feature of the landscape, or any river, stream, ditch or pond, or a risk when passing over/under/through any wall except by proper use of the gate unless D intentionally or recklessly created that risk (s1(6A) OLA 1984)
2. PLUS if D does owe C a duty, the court must, in determining whether it has been breached, have due regard to the fact that the existence of the right of way ought not to place an undue burden on D and the importance of maintaining the character of the countryside
ii. A person using a public highway is not protected by either Act (though possible to sue under s41 Highways Act 1980)
d. Danger from state of the premises?
e. Criteria in s1(a-c) satisfied?
i. D aware of danger or has reasonable grounds to believe it exists? and
ii. D knows or has reasonable grounds to believe that C might come into the vicinity? and
1. Is this also true at the time of the accident? (Donoghue v Folkestone)
iii. The risk is one against which D may reasonably be expected to offer C some protection?
f. Accepted risks? (s1(6) OLA 1984)
i. ex. Ratcliff v McConnel: D, occupier, was not liable for C’s injury when C dived into D’s swimming pool at the shallow end, because when he dived into the pool he willingly took the risk that the swimming pool would be too shallow to dive in but he nevertheless did so
Problem question structure
- Breach?
a. Same as above, except:
b. Warning: less stringent criterion because it doesn’t need to in all circumstances make C reasonably safe
c. Exclusion?
i. Cannot exclude (at least because the Act is silent whereas the 1957 is not, so a contrario interpretation)
ii. BUT can use a sign like “trespassers enter at your own risk” to argue:
1. Because of the sign D had no reason to believe that someone like C would come into the vicinity (s1(3)(b))
2. Because of the sign C willingly accepted the risk (s1(6)) – but it won’t work if C was injured by a dangerous in a way that he could not possibly have anticipated when he saw the notice
iii. [Roderick says that if D does manage to succeed with one of the above arguments, it seems that nothing in UCTA 1977 would stop him denying that he owed a duty of care under the 1984 Act, because it defines negligence as including breach of the common duty of care under the OLA 1957 (but Roderick thinks that this is an oversight because UCTA 1977 was enacted before the OLA 1984 and nobody thought to update it). Roderick thinks that it is likely that some way would be found to ensure that occupiers of business premises not be allowed to disclaim the duty under the OLA if allowing him to do so would result in him not being held liable for non-visitors’ being killed or injured]
1. NOTE: QUESTION: Surely this simply cannot be right‼ If D succeeds, then it cannot be by showing that he successfully excluded the liability (because you can’t exclude liability under the 1984 Act), so if he does succeed, then he succeeds in showing that, because of the notice, he owed no duty in the first place in respect of the particular injury suffered by C! So if he owed no duty in the first place, then why are we even speaking of exclusions and the Acts, which surely are irrelevant?
Problem question structure
- Actionable damage?
a. Physical injury covered
b. Property damage not covered
Donoghue v Folkestone [2003]
Facts: C, a diver, dived into the water at midnight in midwinter and broke his neck hitting a grid-pile under water. D was held at first instance to be liable because they knew that substantial numbers of people dived like that and that the grid-piles were a concealed danger.
Held (CoA): Reversed finding of liability because s1(3)(b) wasn’t satisfied as though D knew that people may dive at certain times they had no reason to know the likely presence of an individual at the actual time and place of accident. Thus, a duty may be owed in summer but not in the winter to, ex. put up a warning sign (Lord Phillips)
Perhaps differentiate between provisions (precautions): if fence, then probably no difference, but if security guard, then perhaps differentiate based on time.
Keown v Coventry Healthcare NHS Trust [2006]
Facts: C, 11 year old child, injured falling while climbing a fire escape vent that was not negligently constructed. Applied Tomlinson v Congleton and said that the owner wasn’t liable because the distinction between children and adults was one “by degree” and the risk was sufficiently obvious to the child that it falls outside the scope of danger created by the “state of premises” for the purpose of S1(1)(a).
Longmore LJ:
- NHS Trust shouldn’t be liable because:
o Hospital’s resources should be allocated to buying hospital equipment and recompensing doctors/nurses rather than protecting against children climbing where they shouldn’t
o Imposing liability would mean building a fence around the entire premise, deterring children from playing on the grounds and barring ordinary access routes to the public. This is not worth protecting against occasional, albeit sad, injuries
Tomlinson v Congleton BC [2004]
Issue: Conditions for the existence of a duty
- Lord Hoffmann:
o Danger resulting from the state of the premises (supra)
o Knowledge or foresight of the danger (s1(3)(a)): (yes?)
♣ What is the relevant danger?
⇒ Judge: Risk of suffering an injury through diving, the council was aware of this because two men had suffered minor head injuries from diving before this was in 1992 and we have little information nor lead to the inference that there was reasonable ground to believe that there was a risk of serious diving injury
⇒ Ward LJ: The swimming incidents are indicative of the council’s knowledge that a danger existed too wide IJO – the risk from diving and drowning in deep water are different.
⇒ Lord Hoffmann: I accept that the council must have known that there was a possibility that some boisterous teenager would injure himself by horseplay in the shallows and I would not disturb the concurrent findings that this was sufficient to satisfy paragraph (a). But the chances of such an accident were small. I shall return later, in connection with condition (c), to the relevance of where the risk comes on the scale of probability.
o Knowledge or foresight of the presence of the trespasser (s1(3)(b)): (yes as long as s1(3)(a) is yes)
♣ Once it is found that the risk of a swimmer injuring himself by diving was something of which the council knew or which they had reasonable grounds to believe to exist, paragraph (b) presents no difficulty. The council plainly knew that swimmers came to the lake and Mr Tomlinson fell within that class.
o Reasonable to expect protection (nooooooooo: obvious risk):
♣ Judge: the risk was “obvious”, so no duty to warn against the danger (even if under 1957 Act)
♣ CoA disagreed: “it is only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability”, not satisfied here because of the gravity of the risk, the number of people who incurred it and the attractiveness of the beach (though apportioned liability for contributory negligence)
♣ Lord Hoffmann: the CoA’s approach that if there was a foreseeable risk of serious injury D was under a duty to do what was necessary to prevent it, is an over-simplification – “such care as in all circumstances of the case is reasonable” (whether under the 1984 or 1957 Act) depends, as in negligence, on not only the likelihood of injury but also the social value of the activity that gives rise to the risk and the cost of preventative measures – these must be balanced against each other (cites Bolton v Stone: no duty because socially useful activity, even though injury was foreseeable).
Duties owed by occupiers by virtue of common law negligence
- Duties owed to visitors:
o Donoghue v Stevenson duty to take care not to do something positive that would put them in unreasonable danger of being killed or injured
o Everett v Comojo suggests that there might be a duty to take positive acts for occupiers to protect visitors against being attacked by a third party (or even against unreasonably dangerous activities from third parties) – here D, occupiers of a nightclub where Cs were drinking, owed a duty (apparently under common law negligence per Smith LJ, though this is unclear) to take reasonable steps to prevent C from being stabbed by a third party also at the nightclub (which was foreseeable because the guest has (ex.) been excluded previously on account of his violent behavior). The reasoning was that under the OLA 1957 the occupier would have been liable if (ex.) C tripped over the carpet – it would be surprising if D weren’t liable for injuries inflicted by a fellow guest who was a foreseeable danger [weak according to Roderick: Parliament simply didn’t impose such a liability whereas it did for the carpet situation]
o NB the firemen duty under Salmon and Ogwo
Duties owed by occupiers by virtue of common law negligence
- Duties owed to trespassers:
o S1(1) OLA 1984 says that the Act has effect “in place of the rules of the common law, to determine [duties] in respect of their suffering injury on the premises by reason of any danger due to the state of the premises”, which means that the common law determines what duties occupiers owe to trespassers in respect of risks that do not result from dangers due to the state of the premises
o Donoghue v Stevenson liability (ex. Revill v Newbery: duty not to fire a gun through a hole in a shed door that a trespasser was standing behind while trying to break into the shed)
o Risks as a result of activities of third parties? “Duty of common humanity” before 1984 may still apply – from British Railway Board v Herrington (1972): D, railway company, held liable to compensate a child who was electrocuted while walking over D’s railway line, which C had access to because D had allowed the fence separating it from a meadow to into disrepair.
♣ NB Roderick: the danger in this case was created by the occupier (indeed in this case there was no need to invoke a “duty of common humanity” because Donoghue v Stevenson would have sufficed), and there was no indication that this duty was ever intended to apply outside cases where a trespasser is endangered by the state of the premises at all!
Duties owed by occupiers by virtue of common law negligence
- Duties owed to neighbours (overlaps with private nuisance)
o To take reasonable steps to eliminate a dangerous situation arisen on his land if he knows or ought to know of that danger, and it is reasonably foreseeable that the danger threatens to damage his neighbour’s land (Goldman v Gargrave: lightning struck a tree on D’s land and set it on fire. D cut down the tree but didn’t extinguish the fire, which spread onto C’s land, causing damage. Held (PC!) that D was liable in negligence because he owed and breached a duty to take reasonable steps to put out the fire)
o To take reasonable steps to prevent his premises becoming a source of danger to C’s land???
♣ Smith v Littlewoods (D owned a cinema that they intended to demolish, but before that, they left the cinema unattended and unlocked, so that vandals entered, set it on fire, and the fire damaged C’s neighbouring land. Held (HL) that D did not owe C a duty to keep D’s premises secure so as not to become a danger to C’s premises because it was not foreseeable that failure to keep D’s premises secure would harm C’s)
♣ But in the course of deciding the case:
⇒ Lords Brandon and Griffiths said that a duty IS owed to rake reasonable steps to prevent D’s premises becoming a source of danger to C’s land
⇒ Lord Goff said that it is NOT (only Goldman v Hargrave duty once a danger has arisen)
⇒ Lord Mackay said a middle way: there will be a duty if it is reasonably foreseeable that if the premises are not kept secure vandals will break in and start a fire liable to spread to C’s land
o However, Lord Mackay thought that it would be more difficult (though he didn’t deny a duty either) if it were thieves instead of a fire (foreseeable that if D didn’t keep premises secure then thieves would break in and use that to gain access to C’s land)
⇒ Lord Keith agreed with both Lord Goff and Lord Mackay apparently not realizing the difference
♣ So basically we don’t know… The most that can be said is that a majority of the HL thought (at least) that a duty would be owed in fire cases where it is foreseeable
Duties owed by occupiers by virtue of common law negligence
- Duties owed to passers-by (overlaps with public nuisance)
o If D is owner of premises adjoining a highway
o And there is some fixture attached to these premises liable to fall into the highway if it falls into disrepair (tree, sign…)
o D will owe a duty to people using the highway to take reasonable steps to see that the fixture does not fall into the highway and injure them (i.e. take the fixture down or repair it if it is in an obviously dangerous condition, and have an expert look at it for latent defects from time to time)
Basis of the duty: common law negligence and public nuisance
Liability of non-occupiers
Murphy v Brentwood DC [1991] 1 AC 398 (Local authority)
There was a threat to health and safety due to defective foundations, which had caused cracks in the walls of the building. The damages the occupiers were allowed to recover consisted in such sums as each had to expend to put his dwelling in a state in which it was no longer a danger to health and safety (“preventive damages” – Cane).
The case was regarded as one of “physical damage” though all that seemed to be needed was a “present and imminent threat” of physical damage.
The effect of Murphy is generally to rule out the possibility of recovery for preventive damage, subject to Lord Bridge’s view concerning the building close to the boundary of land.
However:
- Cane argues that recover for preventive damages may be “economically justified in that prevention is often cheaper than cure”.
- Stevens argues that exempting the builder from liability could result in unjustified enrichment.
Junior Books v Veitchi (referred to in Murphy but not overruled) is a particularly difficult case that allowed the recovery of PEL in the buildings context.
Hoyano, ‘Dangerous Defects Revisited by Bold Spirits’ (1995) 58 MLR 887
Murphy v Brentwood said no to tortious liability of builders to subsequent purchasers not in contractual privity, but Canada SC said yes in Winnipeg Condominium v Bird Construction:
- La Forest J (for the unanimous court): if someone is negligent in planning or constructing a building, resulting in defects that pose a real and substantial danger to the occupants, the reasonable costs that they incurred in repairing the defects to a non-dangerous state are recoverable in tort. Applying Lord Wilberforce’s two-stage test in Anns v Merton:
o Sufficient proximity = yes, reasonably foreseeable to contractors that subsequent purchasers might suffer personal injury or property damage when defects manifest themselves. The foreseeability of injury also serves to ground liability where the defect has not yet inflicted injury. Rejected Lord Keith’s argument in Murphy that a useless article and dangerous article that has not yet inflicted injury are the same because the owner can just discard it, because it is unrealistic in practice since home owners can’t just discard.
♣ This is attractive because under Murphy one who repairs defects responsibly before it causes injury must do so at their own expense, while one who waits for an accident may recover for very costly and potentially tragic consequences. Thus the doctrine in Murphy encourages reckless, hazardous and economically inefficient behaviour.
♣ It is also attractive because it avoids the distinction between self-destruction (not recoverable in tort) and destruction of other property (recoverable), which distinction often leads to complex dual claims in contract and tort to recover different losses from the same accident.
o Sufficient reason not to impose liability = rejected concern in D & F Estates that liability in tort would impose on the contractor an obligation to honour a non-contractual warranty of the quality of its workmanship and materials, because the duty in tort flows independently, from the contractor’s duty to ensure that the building meets reasonable and safe standard. There is no reason for contractors to use their contractual arrangement with original owner to shield themselves from liability.
♣ Rejected indeterminacy arguments
♣ Rejected argument that a duty would interfere with caveat emptor doctrine, because it is not responsive to the realities of the housing market where latent defects frequently don’t manifest themselves for a long time.
Hoyano, ‘Dangerous Defects Revisited by Bold Spirits’ (1995) 58 MLR 887
EXAM POINT
Perhaps the answer is to distinguish what duties are contractually owed and what duties are owed irrespective of contract, and to deal with the latter under tort law, and preserve privity of contract in the former category. The deficiency in tort law to remedy the second category of cases puts pressure on the privity doctrine to give way.
Hoyano, ‘Dangerous Defects Revisited by Bold Spirits’ (1995) 58 MLR 887
continued
NB Canadian SC declined to follow D & F Estates because that decision rested largely on an assumption that liability in tort for cost of repair would represent an unjustifiable intrusion of tort into the contractual sphere. Canadian SC, however, recognizes the possibility of concurrent contractual and tortious duties, so the point was deemed irrelevant. Now, UKHL has adopted concurrent liability in tort and contract as well, so the foundation of Murphy may now rest only on a lack of sufficient proximity.
English courts may be tempted to distinguish Winipeg Condominium on the basis that in that case the faulty property posed a danger to people on neighbouring land (though this is unclear and not considered) but distinction between recovery for expenditure removing an owner’s potential liability to neighbours and occupier’s potential liability to visitors seems untenable.
Canadian SC’s criticism of Murphy should not be discounted on factual distinctions.
