Occupiers Liability Cases

Question 1

In order for the injury suffered by the claimant to be actionable in damages there must be a…

Answer 1

…connection between the injury suffered and the condition of the premises.

Question 2

What defines whether someone is an occupier for the purposes of the OLA 1957/1984?

Answer 2

An occupier is someone who has a sufficient degree of control over the relevant premises.

N.b. There is no statutory definition of an occupier, dependant on the common law

Question 3

Wheat v Lacon [1966] HL

Answer 3

Held: Both the defendant landlord, who owned the pub, and the managers of the pub, ( who ived in the premises as licensees) were occupiers forthe purposes of the OLA 1957 and therefore owed a DOC to any visitors on the premises; however on the facts neither party had breached thier duty.

Reasoning

Lord Denning:

1. The tenant is the occupier if the landlord does not live on the property
2. However the landlord remains the occupier over any areas over which they retain control e.g. communal spaces, corridors, stairwells etc.
3. If the landlord has only issued a license then both the licensee, and the landlord are ‘occupiers’.
4. Where the occupier has hired an independent contractor, the occupier normally remains responsible for the state of the premises. However depending on the facts independent contractors can also be sole or simulatenous occupiers.

Question 4

Who qualifies as a ‘visitor’ under the OLA 1957?

Answer 4

Those with:

1. Express permission (a license)
2. Implied permission
3. Contractual permission
   
   • ​​​​​i.e.those on premises in order to fulfill the terms of a contract (s.5(1) OLA 1957)
4. Lawful authority
   
   • Certain indviduals have a legal right to enter premise regardless of whether permission has been granted e.g. gas board official (s.2(6) OLA 1957)

Question 5

What is the DOC owed by occupiers to visitors under the OLA 1957?

Answer 5

An occupiers owes all vistors a common DOC

a duty to take such care as in reasonable in all circumstances… to see that the vistor is reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. (s.2(2) OLA 1957)

Question 6

Occupancy duty vs. Activity duty

Answer 6

s.1(1) OLA 1957: The duty which an occupier owes to his visitors in respect of danger due to teh state of the premises of to things done or omitted to be done by them.

• The wording of this section of the OLA 1957 suggests that a claim can be brought for an injury suffered as a result of the state of the premises or as the result of an act carried out on the premises. However the case law suggests otherwise. see Fairchild [2011]

Question 7

Fairchild v Glenhaven Funeral Services Ltd [2001] CA

Answer 7

Held: Employees were unable to claim under the OLA 1957 for damages suffered in respect of asebestos exposure. Asbestos exposure had been as a result of the activities of the employers/ employees - mere occupiers are only liable in respect the state of the premises and not the activities carried out on the premises.

• Although on appeal to HL it was decided that employees could claim for negligence damages in respect of their employers - the inapplicability of the OLA 1957 in such circumstances remains good law.

Question 8

What are 2 potential special categories of visitor under the OLA 1957?

Answer 8

Children

• Higher SOC: An occupier must be prepared for children to be less careful than adults (s.2(3)(a) OLA 1957)
• Doctrine of allurement - Jolley v Sutton [2000] HL

Skilled visitors

• 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.​ (s.2(3)(b) OLA 1957)
• Roles v Nathan [1963]

Question 9

Roles v Nathan [1963] CA

Answer 9

Held: Two chimney sweeps died from carbon monoxide poisoning after ignoring several warning that the flue chamber was not safe to work in when the fire was lit. CA held that

(1) No DOC was owed in respect of that risk since it was incidental to the sweeps’ calling, (s.2(3) OLA 1957) and was therefore one which they could have been expected to guard against.
(2) Even if a duty had been owed, the occupiers had given sufficeint warning to enable the sweeps to be reasonably safe, thus discharging their DOC. (s.2(4) OLA 1957).

Question 10

4 ways an occupier can discharge their duty.

Answer 10

1. Warning
   
   • ​​A warning which is sufficient enough to enable the visitor to be reasonably safe in all circumstances. (s.2(4)(a) OLA 1957).
   • e.g.Lord Denning’s‘tale of two footbridges’ in Roles v Nathan [1963]
2. If damages is caused to the visitor is due to the fault work of an independent contractor employed by the occupier​
   
   • ​​In such instances the occupier must have:
     
     • ​​a) been reasonable in entrusting the work to the contractor
     • b) taken reasonable steps to ensure that the contractor was competent; and
     • c) taken reasonable steps to ensure that the work was done properly​
   • s.2(4)(b) OLA 1957
3. ​Exclusion of liability

• s.2(1) OLA 1957: An occupier of premises can extend, resitrict modify or exlude his duty to any vistor or vistors by agreement or otherwise.
• However UCTA 1977 and CRA 2015 hold that when an occupier is a business, it may only restrict or exclude his liability for loss/damage if it is reasonable to do so and if the loss or damage is not death or personal injury arising from negligence (s.2(1) UCTA & s.65(1) CRA 2015)

​​​​​​

Question 11

In order for damages to be actionable, for breach of the duty to take reasonable care under the OLA 1957, the breach must have and the damages must have been

Answer 11

• caused the damage
• reasonably foreseeable

Question 12

What defences are available for breach of the duy to take reasonable care under the OLA 1957?

Answer 12

All normal defences to negligence are available: Volenti; Contributory Negligence; Illegality

Note:

• Volenti: The occupier is not liable if the visitor agrees to the risk (s.2(5) OLA 1957). However the visitor must be aware of the risk and have a genuine, free choice as to whether or not to assume the risk (e.g. White v Blackmore)
• Contributory Negligence: The courts will consider “The degree of care and want of care, which would ordinarily be looked at in such a visitor” (s.2(3) OLA 1957)

Question 13

What are the three types of notice that an occupier might put up, and their effect on liability and the DOC owed under the OLA 1957/1984?

(According to McBride)

Answer 13

Disclaimer (or non-contractual exclusion)

• e.g. “No responsibility accepted for the safety of people or their property on these premises.”
• Domestic can rely | Business cannot in cases of death or PI (s.2(1) UCTA, CRA 2015) and in other cases must be reasonable.
• Ashdown v Williams [1957]
• s.2(1) OLA 1957

​Exclusion (contractual)

• e.g. “**No liability accepted to anyone suffering harm on these premises”
• Domestic can rely | Busines cannot…””
• Cannot exclude liability to strangers to the contract (s.3 OLA 1957)

Warning

• s.2(4)(a) OLA 1957
• Donestic can rely | Business can

N.b.​ Only difference with OLA 1984 is that disclaimer can never be relied upon.

Question 14

Ashdown v Williams [1957] CA

Answer 14

Held: merely notifying a visitor that you were not accepting any responsibility for their safety would be effective to disclaim the duty of care that you might otherwise owe them as an occupier of land.

Requirements:

1. Visitory has to see the notice
2. Visitor has to (imputedly) understand it (c.f. only has to be aware of it Parker v Southern Railway Board)
3. Visitor has to enter the land by virtue of invite/permission not be right.

N.b. in the event of ambiguity as to the terms fo the notice, the wording will be construed contra prfoerentum (i.e. in favour of the visitor)

Question 15

OLA 1957 s.3

Answer 15

(1) Occupier cannot by contract reduce his obligations to visitors who are strangers to the contract, to a level below that imposed by the common duty of care.

Question 16

Gwilliam v West Hertfordshire Hospital NHS Trust [2003] CA

Answer 16

Held: When employing an independent contractor to run a charity event on the premise, in order to discharge their DOC, teh occupiers were required to enquire about the liability insurance of the contractor. Failure to do so was a breach of their duty to satisfy themself that teh contractor was competent.

Analysis

• Sedley LJ dissented holding that they’re is abig difference between ensruing the competence of a contractor, and reassuring yourself that a contractor will be worth suing if he proves to be incompetent.
• In Naylor v Payling [2004], CA stated it preferred Sedley LJ’s reasoning.
• Correct view may be that enquiring about insurance is sufficient to ‘ensure competence’ but not necessary.

Question 17

Defective Premises Act 1972 s.4

Answer 17

Where premises are let under a tenancy which puts on the landlord an obligation to maintain or repair the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or damage to their property caused by a defect within the maintenance or repairing obligation.

Question 18

Ferguson v Welsh [1987] HL

Answer 18

Held: A sub-contractor was deemed to be a ‘visitor’ for the purpose of teh OLA 1957 even though there was a contract which prohibited sub-contracting. However there was no liability for the Council as they had not breached theur DOC.

Reasoning

• This was because to someone who had no knowledge of the contractual prohibition, Mr Spence, the contractor, had ostensible authority to invite whomsoever he pleased onto the site for the purpose of carrying out demolition.

Obiter

• Council had not breached its DOC because F’s injury did not arise from any “use” by him of the premises within the Occupiers’ Liability Act 1957, s.2(2)
  
  • Upheld in Fairchild [2001]

Question 19

White v Blackmore [1972] CA

Answer 19

Held: The organisers of a dangerous sport may effectively exclude their liability to spectators for accidents arising from their breach of duty of care and their duty under the OLA 1957 by displaying notices warning the public of the danger, and stating that it is a condition of admission that they be absolved from all liabilities for accidents “howsoever caused.”

Buckley LJ: If an occupier can refuse someone entry, then they are also entitled to set conditions on the permission of entry, within s.2(1) and D was therefore entitled to exempt its tortious liability.

Obiter

• Race oragnisers had also attempted to use teh defence of volenti by arguing that the spectator had consented to the risk. This was rejected. Whilst he may have consented to the risks inherent in Jalopy racing, he had not accepted the risk of the negligent construction of the ropes.

Question 20

Portsmouth Youth Activities Committee v Poppleton [2008] CA

Answer 20

Held: Where there was an inherent risk of injury as a result of a voluntarily undertaken activity, the law did not require the occupier of the land that the activity occurred on to prevent an individual from engaging in that activity, or to train or supervise him whilst he did it. Therefore the occupiers of a rock climbing centre, were not liable in respect of injuries suffered by a rock climber who had fallen awkwardly while attempting a ‘prohibited’ jump

Reasoning

• It was extremely rare for an occupier of land to be under a duty to prevent people from taking risks which were inherent in the activities that they freely chose to undertake, Tomlinson v Congleton BC [2003] applied. P engaged in the climbing activity of his own free will and the risk of falling was plainly obvious.

Question 21

Harvey v Plymouth City Council [2010] CA

Answer 21

Held: When a local authority licensed the public to use its land for recreational purposes, it was consenting to normal recreational activities, carrying normal risks, and its duty as occupier to an implied licensee could not be stretched to cover any form of activity, however reckless. Therefore the council were not liable in respect of inebriated youths who had tripped over a small, inconspicous fence on the edge of the land - this was not an activity to which the scope of the youths license as visitors applied.

Reasoning

• Whether or not a person is to be regarded as a visitor, t_he scope of the duty owed under Section 2(2) of the 1957 Act is in any event limited to “the purposes for which (the visitor) is invited or permitted by the occupier to be there”_. Thus, arguably, “a visitor who chooses to slide down the banister” ( Scrutton LJ in The Carlgarth [1927]) would be outside the protection of the Act, not because he has ceased to be a “visitor”, but because the occupier has no duty under the 1957 Act to make the premises safe for that unauthorised activity. Either way, it is clear that the duty under the OLA 1957 does not extend beyond the scope of the activities for which the licence has been expressly or impliedly given”.

Question 22

Occupiers Liability Act 1984

For a duty to be owed under the OLA 1984 three conditions must be met ( S.1(3) (a) - (c))

Answer 22

a) The occupier must be aware of the danger, or have reasonable ground to believe it exists;

b) He must know or have reasonable grounds to believe that the person is in the vicinity of the danger or that he may come into the vicinity of the danger; and

c) The risk must be one against which, in all the circumstances, he may reasonably be expected to offer the person some protection - an objective requirement.

N.b. Can only claim under the OLA 1984 when the injury is attributable to the state of the premises.

Question 23

Tomlinson v Congleton BC [2003] UKHL 47

Answer 23

Held: The Council were not liable under the OLA 1984 in respect of a man who had dived into a lake on their land and injured himself. The man had no permission to enter the lake ( therefore he was a trespasser for the purpose of OLA 1984 ), however the injury was incurred because of what the claimant chose to do not because of the state of the premises (s.1(1)), therefore the OLA 1984 was not engaged.

Obiter

• Risk from lake was not one against which teh claiamtn was reasonably entitled to be protected - s.1(3)(c) OLA 1984
• Even if swimming had not been prohibited and the local authority had owed a duty under s.2(2) OLA 1957, it would not have been required to take steps to prevent T from diving or to warn him against dangers which were obvious.

​Analysis

• The Slippery Floor Problem: Since T was a guest on the land, why did the OLA 1957 not apply?
• The 1984 Act not only determines when you have a duty to protect a trespasser on your land from some danger arising on your premises but also when you have a duty to take reasonable steps to stop a visitor of yours from entering a
  dangerous area of your land which she is not permitted to enter. Whether such a latter duty is owned will largely depend on whether the Occupier/host knew or ought to have know that despite her prohibition someone like Guest would attempt to enter the prohibited area.

Question 24

Keown v Coventry Healthcare NHS Trust [2006] CA

Answer 24

Held: An 11 year old child who had climbed the outside of a fire escape (not permitted to be here therefore a trespasser) was not at risk of suffering injury by reason of any danger due to the state of the premises within the OLA 1984 s.1(1)(a) but had put himself at risk through his own choice to indulge in a dangerous activity.

Obiter

• Longmore LJ: Even if it was decided that the injury was attributable to the state of premise, caliam would fail under s.1(3)(c) OLA 1984.
• If there was a danger attributable to the state of the premises, thus giving rise to a potential duty, the content of the duty might vary according to whether the trespasser was a child or an adult, but until that point was reached, then in the general run of cases, the age of the trespasser was not relevant.

Question 25

What is the standard of the duty owed under the OLA 1984?

Answer 25

Occupier owes a duty to take such care as is reasonable (s.1.(3)(c)) in the circumstances to prevent those on their land from suffering injury

• Under the OLA 1984 only personal injury is recoverable. Property damage is not recoverable unlike under the OLA 1957

Question 26

Give 2 ways an occupier can discharge their duty under the OLA 1984?

Answer 26

1. Warning
   
   • ​​s.1(5) OLA 1984: Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.​
   • The duty is more easily discharged under the OLA 1984 than the OLA 1957, since there is no requirement that the warning enable the visitor to be reasonably safe in all circumstances (S.2(4)(a)).
2. Acceptance of risk by the trespasser
   
   • ​​A trespasser accepying the risk gives an occupier a defence under s.1(6) OLA 1984: No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person.

Question 27

In order to be actionable the breach must have the claiamnt’s damage, and the damage must have been .

Answer 27

Ordinary rules of causation and remoteness apply.

• caused
• Reasonably forseeable

Question 28

Can liability be exlcuded under the OLA 1984?

Answer 28

The OLA itself is silent on the power to exclude liability under it:

• Arguably the OLA 1984 lays down a minimum standard, similar to the “duty of common humanity” identified in Herrington [1972], which cannot be excluded. However what about the more extensive DOC under s.1
• The concept of excluding liablity is that , as an occupier, you choose to invite people onto your land freely or subject to conditions and in doing you can choose to deny people access to your land (unless they agree to the conditions). An exlcusion of liablity is something which you attach to the condition of alllowing people to access your land. WIth a trespasser, there is no option to allow or deny them access.
• Some commentators therefore argue that you cannot exclude liability to a trespasser because the whole rationale of excluding liability is as a condition attached to entry onto the land - if a person is not permitted onto the land, one cannot impose that condition.
• However this would poetntailly leaves trespasser in a better postion thatn vistors under the OLA 1957, raising obvious policy concerns.

N.b.Neither UCTA nor the CRA 2015 refer to excluding liablity for trespasser under the OLA 1984. Therefore if it were possible to exclude liability under 1984,it is argubale that such exclusion clauses would not be caught by those provisions and would therefore be valid even if in respect of death and personal injury. However this absence of statutory protection, is perhaps even more reason to hold that liablity should not be excludable under the OLA 1984 in the first place.

Question 29

Revill v Newbery [1996] CA

Answer 29

Held: Where the hazard is dute to acitvities (in this case shooting) which takes place on the premise and the occupier is responsible for those activities, the injury may be actionable at common law in negligence on principles ‘similar’ to those set out in the OLA 1984.

Therefore Newbery was liable in negligence for shooting and severly injuring a trespasser to his property.

Analysis

• Newbery had alleged defences of both Contributory negligence and illegality. Althought suceeded in reudcing the damages by 2/3 the defence of illegality failed:
  
  • Neill LJ On the application of ex turpi causa :

“It seems to me to be clear that, by enacting section 1 of the 1984 Act, Parliament decided that an occupier cannot treat a burglar as an outlaw and has defined the scope of the duty owed to him. As I have already indicated, a person other than an occupier owes a similar duty to an intruder such as Mr. Revill. In paragraph 32 of their 1976 Report the Law Commission rejected the suggestion that there should be no duty at all owed to a trespasser who was engaged in a serious criminal enterprise.”

This has been suggested by some commentators as laying down a minimum standard duty of common humanity, below which an owner cannot go or exclude.

Question 30

D & F Estates v Church Commissioners [1989] AC 177

Answer 30

Held: Ps had to pay to re-plaster a flat that they had leased upon discovering that D, the owner, had had faulty plastering done, and P sued D for the cost of plastering. HL held that the damage suffered by P was PEL, which was not recoverable under tort. There was no special relationship of proximity as occured in Junior Books

Obiter

• As a general rule if a negligently constructed building causes damage to other property, whether of the claimant or a third party, the defendant is liable for that. Howvere determing what counts as “other property” is not always simple. In this instance Lord Bridge suggested a ‘complex structures’ theory to explain how a defect in one part of the house migth cause actionable property damage to another part of the house, however this theory not been supported by any other judges.

Question 31

Murphy v Brentwood DC [1991] HL

Answer 31

Held: A local authority is not liable in tort for negligent application of the building regulations, where the resulting defects are discovered before physical injury occurs. The loss suffered is purely economic.

• This also applys to a builder. In the absence of a special relationship of proximity (such as existed in Junioor Books v Veitchi [1983], although this it not the norm) there is no liability in tort for quality defect(s) in the building
• This applies even if the defect is/was capable of causing personal injury. Once the defect is discovered injury is only possible if the claiamtn fails to remedy it and is thus the author of his own loss.
• In Murphy the essence of the complaint was that the property was imperfect from the beginning. It was not “damaged”; it was simply worth less than was paid for it.

Question 32

Targett v Torfaen BC [1992] CA

Answer 32

Held: A landowner who designs/constructs houses owes a duty of care to ensure that occupiers are reasonably safe from personal injury resulting from defects in that design or construction. Therefore a claimant (a council house tenant) who was aware of a defect, but failed to persuade the council to repair it before it caused him injury was able to receive damages in negligence

Reasoning

• Murphy v Brentwood distinguished
  
  • In Murphy HL were concerned with nature of loss and could not be taken to have intended to lay down an absolute rule to the effect that a claim by someone suffering personal injury from a defective building was automatically barred by his prior knowlegde of the defect.

Question 33

Nitrigin Eireann v Inco [1992] 1 All ER 854

Answer 33

Held: D supplied faulty pipes to C. The first cracking in the pipes merely required C to spend money on repair. The second cracking damaged C’s other property. C sued D for both instances. May J held that the original cracking was purely for the cost of repair and therefore economic loss which, other than in the context of a special relationship was not recoverable in negligence. However the second cracking led to damage of property and could therefore go ahead.

Question 34

Defective Premises Act 1972 s.1

Answer 34

Imposes upon persons who undertake work for, or in connection with, the provision of a dwelling, a statutory duty to see that the work taken on is done in a workmanlike or professional manner,
with proper materials and so that as regards that work the dwelling will be fit for habitation when completed.

The duty is owed not only to the persons ordering the work but also to every person who
then or later acquires an interest (whether legal or equitable) in the dwelling.

A claimant is entitled to recover only for foreseeable loss/damage attributable to the fact that the dwelling is unfit for habitation.

However there is a six-year lmitation period which begins to run from when the swellling is complete.

N.b. Section 2 of the Act excludes “approved scheme” constructions, such as those run by the National House Building Council.

Question 35

Latent Damage Act 1986

Answer 35

• In actions for common law negligence with reagrds defects in buildings, an alternative limitation period of 3 years running from the time when the claimant could have reasonably known about the defect is imposed. (as opposed to the 6 years from when the defect was created as is in the DPA 1972)

​The 1986 Act is not confined to building cases but they were undoubtedly the primary motivation for its enactment and Murphy v Brentwood greatly reduced its significance by deciding that in those cases there is simply no cause of action in the first place.

Question 36

Nitrigin Eireann v Inco [1992] 1 All ER 854

Answer 36

Held: No cause of action arose in negligence from purely economic loss caused by cracked pipework at a chemical factory, but a later explosion at the factory caused by continuing weakness in the same pipe did give rise to a cause of action since physical damage was caused to other property.