Occupiers Liability and cases at the end week 2 and 3

Question 1

Occupiers Liability

Answer 1

Filler

Question 2

What is Occupiers Liability W2P1 and page 244

Answer 2

Occupiers Liability is a branch of negligence.
Basically means that the occupier of any property has a duty of care to keep visitors safe.
There are two separate actions:
The OLA Act 1957 provides the occupier of premises owes a duty of care to lawful visitors and if this duty is breached and the visitor is injured - they are entitled to compensation.

The OLA 1984 sets out a similar rule for trespassers who are injured on the occupiers premises.
The main remedy for successful claims is compensation for the injuries or damage suffered.

Question 3

Who are occupiers W1P1 and page 244

Answer 3

Potential defendants are the same under either act - they will be occupiers of the premises - they may be but don’t have to be the owner or tenant of the premise (have to be in control of the premise). There is no statutory definition - so you use the cases Wheat V Lacon and Harris V Birkenhead.
A decision of who is in control of the premise maybe influenced by whose insurance policy covers the premise and is able to meet the claim.
If no one is in control of the premise there is no claim.

Question 4

Who is a lawful adult visitor page 245

Answer 4

Lawful adult visitors include:
Invitees - people who have been invited to enter and who have expressed permission to be there.
Licensees - persons who may have expressed or implied permission to be on the land for a particular period.
Those with contractual permission - for example someone who has brought an entry ticket for an event.
Those given a statutory right of entry such as meter readers and a police constable exercising a warrant.
Repeat visitor - with the owner’s knowledge - Lowry V Walker.

Children - allurement - people tempted onto the land, particularly children - Jolley V Sutton

Question 5

Who are lawful visitors may be not adults W1P1

Answer 5

Someone invited, repeat visitors with the owners knowledge (Lowry V Walker), allurement people tempted onto the land, particularly children (Jolley V Sutton), entering to communicate/ announce arrival unless the occupier objects and exercising a statutory authority.

Question 6

What is a premise page 245

Answer 6

There is no statutory definition of premise S1(3)a references to a person having control of a fixed or moving structure such as a ladder, a vehicle and a ship in a dry dock.

Question 7

What is the standard of care under the 1957 Act W1P1 and page 245

Answer 7

An adult visitor is owned a common duty of care, S.2(2) OLA 1957. ‘The visitor will be reasonable safe in using the premises for the purpose for which he is permitted to be there’. The occupier must act as carefully as a reasonable occupier and must act more carefully is vulnerable people are there, don’t make it completely safe just do what is reasonable (Laverton V Kiapasha Takeaway Supreme 2002). Don’t have to make the premise safe but just make sure the visitor is safe whilst they are there.

Question 8

The duty owed to children W1P1 and page 246 and 247

Answer 8

S(2)3a ‘an occupier must be prepared for children to be less careful than adults.’ Maloney V Lambeth.
Must be reasonably safe for a child of that age (subjective), should guard against any allurements that places a child visitor at risk of harm, however no liability if the damage is not foreseeable. Jolley V Sutton (2000).

Question 9

The duty owed to tradesman W2P1 and page 247

Answer 9

S.2(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, so far as the occupier leaves him free to do so’.
Roles V Nathan
This only applies if the tradesman is injured by something to do with their trade.

Question 10

If a roofer is doing work on your property and they negligently cause injury to someone are you liable W2P1 and page 247 and 248

Answer 10

S2(4)b - if work is done on your premises by a third party you may still be responsible for the harm caused.
To discharge this duty you must:
1) Be reasonable for the occupier to have given the work to the independent contractor.
2) Check their credentials (that they are qualified) and competent to carry out the task
2) Check the finished work where reasonable to do so.

Question 11

What statute says about warnings W2P1

Answer 11

S.2(4)a - Where damage is caused to a visitor - the occupier can remove their liability if the warnings were sufficient to make the occupier safe. Woollins V British Celanese

Question 12

What are the defences to a claim by a lawful visitor W2P1 and page 249

Answer 12

Consent S2(5) - the occupier will not be liable in respect of risks willingly accepted by the visitor (volenti defence of consent). Ratcliff V McConnell

Contributory negligence - Damages maybe reduced where the visitor fails to take responsible care for his own safety, eg failure to follow clear safety advice.

Exclusion of liability S2(1) ‘to restrict modify or exclude his duty by agreement or otherwise’ - liability may be excluded by the occupier, in White V Blackmore someone attending a car race had signed a form saying they couldn’t sue if there was an accident.
If the occupier has breached their contract they would have to pay damages.

Question 13

Trespassers OLA 1984 W3P1

Answer 13

Filler

Question 14

What is a practice statement and how was it used W3P1 and page 251

Answer 14

Practice statement - power of the Supreme Court to overrule its own decisions. This happened in Addie V Dumbreck (1932) to BRB V Herrington (1972). They said they changed the law in the later case because society had changed, previously common law meant an occupier owed a trespasser no duty at all and imposed a DOC towards child trespassers. The Law Commission reviewed the area and recommended there is a limited DOC to all trespassers. The Occupiers Liability Act 1984, turned common law into statute (codification).

Question 15

Who is a trespasser W3P1 and P251 and 252

Answer 15

Trespasser - a person who has no permission or authority to be on the occupier’s premises or a visitor who has gone beyond their permission to be on the premise.
Lawful visitors become trespassers if they exceed their permission in terms of:
Area - going through a door marked staff only - Pearson V Coleman Bros
Time - beyond the time you are allowed in a place
Purpose - going somewhere other than for the purpose which you are allowed Tomlinson V Congleton. To be liable have to be because of the state of the premise, not the sort of risk they should have to guard against and not reasonable to protect them from such an obvious danger.

Question 16

When is a duty of care owed under OLA 1984 W3P1 and page 251

Answer 16

S1(3) An occupiers owes a DOC to a trespasser:

1) If he is aware of the danger or has reasonable grounds to believe it exists;
2) he knows that the other may come in/in the vicinity of the danger - Scott V Associated Ports
3) the risk is one against which, in all circumstances, he may be reasonably expected to offer the other some protection.

Question 17

The standard of care under OLA 1984 W3P1

Answer 17

S1(4) the duty is to take such care as is reasonable in all circumstances to see that the other does not suffer injury on the premises by reason of any danger there, introduced the concept of obvious dangers, especially for adult trespassers then the occupier will not be liable. Ratcliff V McConnell (1997) and Revill V Newbery 1996

Question 18

What is the difference between the two OLA’s W3P1

Answer 18

1957 - requires an occupier to make sure that lawful visitors are safe.
1984 - requires the occupier to ensure the premises are not dangerous.
Keown V Coventry

Question 19

Defences to a claim by a trespasser P253 W3P1

Answer 19

Contributory negligence
Consent (volenti) S1(6)
A warning can be an effective defence especially if it’s an adult - if warns the danger in clear terms - depends of the understanding of a kid

Question 20

How to structure a question of occupiers liability W3P1

Answer 20

Occupier
Lawful visitor or trespasser 
Duty owed (3 part test)
Defences
Evaluating occupiers liability can be found on pages 254 and 255

Question 21

Occupiers Liability cases

Answer 21

Filler

Question 22

Wheat V Lacon 1966 P244

Answer 22

The manager of a pub was given the right to rent out rooms in his private quarters even though he had no ownership rights of the premise. A guest fell on an unlit staircase and died. The HOL decided that both the manager and the employers could be occupiers under the act, so there could be more than one occupier of a premise.

Question 23

Harris V Birkenhead Corporation (1976) P244

Answer 23

A four year old child was injured in an empty house. The local council had served a compulsory purchase order on the house but they had not boarded it up or made it secure as they had not yet taken possession. It was decided they were in occupation as they were effectively in control of the premise.

Question 24

Lowry V Walker OLA cases found in the tort revision tab on Moodle.

Answer 24

The claimant was injured by a horse when using a short cut across the defendants field. The land had been habitually used as a short cut by members of the public for many years and the defendant had taken no steps to prevent people coming on to the land. The defendant was aware that the horse was dangerous. It was held that the defendant was liable . Whilst the claimant did not have express permission to be on the land, a licence was implied through repeat trespass and the defendants acquiescence.

Question 25

Laverton V Kiapasha Takeaway Supreme (2002) P245

Answer 25

The defendants owned a small takeaway shop. They had fitted slip resistant tiles and they used a mop and bucket to mop the floor if it had been raining. When the claimant went into the shop it was very busy and had been raining. She slipped and broke her ankle. The COA decided that the shop owners had taken reasonable care to ensure their customers were safe. They were not liable as they did not have to make the shop completely safe.

Question 26

Jolley V Sutton P247

Answer 26

The council had failed to move an abandoned boat situated on its land for two years. Children regularly played in the boat and it was clearly a potential danger. When two 14 year olds jacked the boat up to repair it, the boat fell on one seriously injuring him. The claim for compensation succeeded in the High Court but failed in the COA since it was decided that, while the boat was an obvious allurement, the course of action taken by the boys, and therefore the specific type of injury was not foreseeable.

Question 27

Moloney V Lambeth Borough Council OLA case list

Answer 27

The council was liable to a child who fell through a bannister near a staircase. Since a person of the claimants size was able to fit through the gaps, and that it was foreseeable that children would be on the premise, the premises did not comply with the occupiers duty of care.

Question 28

Roles V Nathan (1963) P247

Answer 28

Two chimney sweepers died after inhaling carbon monoxide fumes while cleaning the chimney of a coke-fired boiler. The weeps had been warned of the danger. The occupiers were not liable as they could have expected chimney sweeps to be aware of the particular danger.

Question 29

Woollins V British Celanese OLA case list

Answer 29

S.2(1) you can exclude liability with a warning sign, but a warning sign behind a door was not enough.

Question 30

Ratcliff V McConnell (1999) P251

Answer 30

A 19 year old student climbed the fence of his open air college swimming pool at night and dived into the pool hitting his head on the bottom, he was seriously injured. The COA decided that the occupier was not required to warn adult trespassers of injury arising from obvious dangers. In this case there was no hidden danger as it was well known that swimming pools vary in depth and diving without checking the depth is dangerous.

Question 31

White V Blackmore (1971) OLA case list

Answer 31

At the entrance to the premises and within the programme, there were warning notices excluding liability for accidents. Mr White was standing beside the spectators rope when a cars wheel became entangled in the rope. Mr White was thrown in the air and died from his injuries. It was held that the notices were effective in excluding liability for his death, they had taken care to bring the exclusion to the spectators attention and they were entitled to exclude their duty of care under the OLA 1957.

Question 32

British Rail Board V Herrington (1972) P251

Answer 32

A six year old boy was badly burned when he trespassed onto an electrified railway line through vandalised fencing. British Rail was aware of holes in the fence and that children played in the area. The HOL established a duty of ‘common humanity’ which was a limited duty owned when the occupiers knew of the danger and the likelihood of trespass. The Law Commission investigated the area of law in 1975 and resulted in the 1984 act.

Question 33

Tomlinson V Congleton Borough Council (2003) P252

Answer 33

The council owned a park including a lake, signs were posted prohibiting swimming and diving because the water was dangerous, but the council knew these were generally ignored, the council decided to the lake inaccessible to the public but delayed the work because of lack of funds. The claimant went swimming and struck his head on the sandy bottom and suffered paralysis as a result. The HOL made the council not liable because it was not due to the state of the premise, it’s not something the defendant should have to guard against and it was not reasonable to spend money on an obvious danger.

Question 34

Pearson V Coleman OLA case list

Answer 34

A child visiting the circus went through a door marked staff only and so entered the lions runway, where she was mauled. She sued fir personal injury. It was held she was exceeding her permission to be there when she when through the staff only door. However, having entered the circus as an invitee it was foreseeable that a child would not take heed to warnings and for this purpose she was an invitee. The circus was liable in negligence.

Question 35

Scott V Associated Ports OLA case list

Answer 35

The claimant tried to jump aboard a passing train. He waited in the bushes for 20 minutes before the train came. He jumped for the train but lost his grip and fell, his leg was severed by the train. The judge found that he knew the danger because that was part of the attraction of the activity. It was held that the train had operated there for many years and train surfing was very rare, the defendant was not aware that people would likely be exposed to the danger.

Question 36

Revill V Newbery (1996) OLA case list.

Answer 36

Mr Newbery owned an allotment which had a shed which he kept various valuable items. The shed was subject to frequent break ins and vandalism. He had taken to sleeping in the shed armed with a shot gun. Mr Revill went to the shed at 2am to break in. Mr Newbery woke and fired it through a small hole in the door of the shed, hitting Mr Revill, he bought action. He was successful but his damages were reduced by 2/3 under the Law Reform Contributory Negligence Act 1945.

Question 37

Keown V Coventry Healthcare NHS Trust (2006) P253

Answer 37

An 11 year old boy climbed a fire escape on the exterior of the hospital to show off to his friends and fell. The COA held that since the child appreciated the danger, it was what the boy was doing, there was no danger due to the state of the premises. The hospital were not liable.