Occupiers Liability - Week 9 Flashcards
Who does the law impose duties on
The law imposes duties on occupiers of land in relation to the maintenance and use of their land. These duties are owed to third parties
A business can expect many different people to enter premises they own, occupy or have control over.
Some will have been invited to carry out certain tasks or provide services, others may enter to make enquiries and some may be trespassing on the premises in question
What are the two statutes governed occupiers liability
- The Occupiers Liability Act 1957
- The Occupiers Liability Act 1984
Who does the statute impose duties on?
The statutes impose duties on the occupiers of premises for the safety of the people who enter the land they occupy
If these duties are breached and harm is caused to someone on the premises, an action for damages may be brought against the occupier
The duties owed under these statutes only relate to harm caused by the state of the premises and not activities carried out on the premises
Where injuries are caused by activities rather than the state of the premises, then the general law of negligence apple
In relation to the liability of occupiers, the law makes a distinction between the duty owed to visitors and the duty owed to non visitors (trespassers)
The Liability to People on the Premises
The law requires that occupiers have a legal duty to keep the structure of their premises in a reasonably safe condition
This duty extends to, for example, a hotel owner taking care to ensure floors aren’t too slippery when polished or cleaned
If an occupier fails to do this and harm is caused then liability may exist under the Occupiers’ Liability Act of 1957 and 1984
Occupiers’ Liability Act 1957
The 1957 Act covers the liability of an occupier to visitors
A visitor is someone who has the consent of the occupier to be on the premises and the consent can be express or implied
Employees, customers, window cleaners, meter readers and family members
The permission may be restricted in terms of time, place and purpose
If the visitor doesn’t comply with these restrictions, he will become a trespasser and no longer be a visitor
If permission is given for a window cleaner to access a kitchen in the house to fill up a bucket of water, he will become a trespasser if he decides to go upstairs or into another part of the building
Under s 2(6), the act also covers those who have a legal right to be on the premises, for example, police, firefighters and anyone entering premises that are open to the public
Who is the occupier? - Wheat v Lacon (1966)
States the occupier is the person who is in control of the premises at the time of the accident
This means that if premises are unoccupied due to refurbishment, the builder, shop fitter, plumber who causes a hazard will be liable to an injured person
Can there be more than one occupier?
Yes
Wheat v Lacon → the defendant owned a pub run by a manager. The manager took in paying guests who stayed in the rooms on the first floor of the property
One of the paying guests fell down a staircase and was killed
It was held that for the purposes of the occupiers liability act 1957, both the defendant and the manager were occupiers of the premises as they had control over the premises (neither was liable on the facts)
What are the premises?
These include buildings and open spaces as well as any fixed or moveable structures and includes any vessel, vehicle or aircraft
Premises are widely defined and have been held to include scaffolding, a large excavating machine, ships and trains
The extent of the occupiers duty
An occupier must take reasonable care to ensure that visitors are reasonably safe for the purpose they are invited or permitted to be on the premises for
Reasonable care to ensure reasonable safety for a particular visit
Info
The need to take reasonable care means there’s no duty to eliminate all risks
Visitors are expected to take some responsibility and be aware of and avoid normal hazards
In Lewis v Six Continents (2005), a hotel owner who failed to ensure than an upstairs window had restricted openings didn’t breach his duty when the claimant (adult male) fell out the window
The standard of care
We’ve seen that the occupier must take reasonable care Therefore, an occupier isn’t liable just because someone suffers an injury
The injured party will have to prove that the occupier failed to take reasonably adequate precautions to prevent it
Cunningham v Reading Football Club (1991)
The claimant police officers were working during a football match
They were injured when members of a crowd threw lumps of loose masonry at them
It was discovered that the stands were in poor condition which led to lumps of masonry being used as missiles
It was held the club was in breach of its duty
Due to past events, it was reasonably foreseeable that the crowd would be violent
To assess the standard of care, the type of hazard, the nature of the premises and the needs of visitors are all relevant → what is reasonable depends on the individual circumstances of each case
Murphy v Bradford Metropolitan Council (1991)
A school caretaker had cleared snow twice for a notoriously slippery path before 8.30am
The claimant was injured when they fell
It was held the school should have taken more care
The nature of the path, the numbers of people using it and the severity of the weather demanded more care should’ve been taken
Clare v Perry (2005)
A guest at the defendants hotel choose to exit the hotel one evening by climbing over a perimeter wall rather than using a nearby official exit
As it was dark, she hadn’t realised there was a 6 foot drop on the other side of the wall
She fell suffering serious injuries
She sued the defendant
It was held that the key question was whether the defendant had breached the common duty of care
In deciding the case, the court had considered the behaviour which is reasonably expected of a visitor
The defendant wasn’t liable as the claimant had behaved in a foolish way that wasn’t reasonable for the defendant to guard against
Risk Assessment and Compliance - Bowen v National Trust (2011)
A tree branch fell without warning on a group of school children
Three were injured and one died
It was held the national trust weren’t liable as the tree inspector took reasonable care when assessing safety in the park and the injury wasn’t reasonably foreseeable
Children and those with Special Skills
The 1957 act makes special provision in respect of the standard of care that should be shown to:
1) Childrens
2) Skilled visitors
The starting point is that the standard of care depends on the circumstances but the law states that some visitors such as children can be expected to be more vulnerable than others and a higher standard of care will be owed to them
Other visitors such as contractors, can be expected to take precautions themselves, particularly if warnings have been given
Children
Under s(2)(3), an occupier must expect children to be less careful than adults
Two cases where an occupier was held liable can be seen below
Glasgow Corporation v Taylor (1922)
A child died after eating berries in the botanical gardens in Glasgow
The corporation was liable for not fencing off or placing warning signs near the shrub
B v JJB Sports (2006)
The claimant, a boy aged 10, slipped on a wet food between indoor football pitches and sustained head injuries
Premises were owned by the defendant and the floor had been washed
It was held the defendant was liable under the occupiers liability act 1957 as it was foreseeable that the floor might be damp after cleaning and he had failed to allow for children being less careful than adults
An adult might be expected to see a sign warning of a wet floor but signs were insufficient to guard against enthusiastic children
Info from cases above
We can see from the cases below that an occupier isn’t liable for all accidents to children - standard of care is no greater than that of a reasonably careful parent
It’s also reasonable to assume that very small children will be supervised by an adult
Phipps v Rochester Corporation (1955)
A 5 year old boy was injured when he fell into a trench on the defendants land
He wasn’t being supervised by an adult
The corporation wasn’t liable as an occupier is entitled to assume that prudent parents wouldn’t allow their children to go unaccompanied to unsafe places
Bourne Leisure Ltd v Marsden (2009)
The Marsden family were staying at a caravan park owned by Bourne Leisure
Mrs Marsden was talking to another camper,her 2 year old son drifted away from his mother and drowned when he fell into a nearby pond
Bourne Leisure weren’t liable
Bourne didn’t have a duty to fence the pond or give a precise location of it
All visitors had been given a map showing ponds, rivers and the beach
Clear to parents not to let unaccompanied small children wander off alone
Visitors with special skills
This area of law covers contractors
They’re seen as skilled and an occupier isn’t liable for job related accidents
Any occupier is entitled to expect that a person carrying out his job on their premises will appreciate and guard against any special risk arising from his job
Contractors should be aware of the risks that are ordinarily incidental to their occupation
Under s(2)(4), the occupier isn’t liable for injuries sustained by visitors from the actions of contractors
The occupier would be expected to take reasonable precautions, for example, by selecting a competent firm and checking the completed work
Roles v Nathan (1963)
The claimant chimney sweeps died from carbon monoxide poisoning while cleaning a chimney
Was held that the occupier of the property wasn’t liable because it was reasonable to expect chimney sweeps to know and guard against such a risk
Discharging the Duty
Duty of care owed to visitors can be discharged in several ways
An occupier is trying to establish that he’s taken reasonable care to ensure his visitors are reasonably safe
The best way of achieving this is to remove the danger, for example, if an entrance to shop gets slippery on wet days then placing mats on the floor or installing a carpet will remove the danger of slipping and falls
If it’s not practicable to remove the hazard, removal of a low beam in an old building, then an occupier must still take reasonable care to ensure visitors are safe. For example, by placing warning signs and barriers in the building
Example of the low beam tells us that under 2(4) occupiers may be found to have taken reasonable care by giving adequate warning of the hazard
The type of warning needs to be appropriate for the visitor → e.g. written warnings aren’t adequate for small children or those who are visually impaired
Occupiers are aiming to ensure their visitors are reasonably safe → no duty to ensure they’re totally safe
Trustees of Portsmouth Youth Activities v Poppleton (2008)
Poppleton ws injured when he fell at a climbing centre
He attempted to jump but fell on his head and was badly injured
The climbing centre was fitted with safety matting
It was held there was no breach of duty under the 1957 act
The risk of falling was obvious and no reasonable person would expect the matting to protect against an awkward fall
In conclusion, we can see from the above that if a premises is one that’s open to the public then the occupier must take account of the needs of a wide cross section of people, for example, children, elderly and those with disabilities
What are the defences available to an occupier?
1) Volenti Non Fit Injuria
2) Contributory Negligence
3) Exemption of Liability
Volenti Non Fit Injuria - Visitor Accepts the Risk
S 2(5) states the duty of care doesn’t impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor
Contributory Negligence
The degree of care a reasonable visitor can be expected to take is taken into account
Exemption of Liability
An occupier may exclude or restrict his liability to visitors if he gives proper notice of the danger, for example, wet paint. Any warning needs to be appropriate to the premises
The Occupiers Liability 1984
This act covers those who don’t have permission from the occupier to be on the premises
The 1984 act regulates the duty of an occupier of premises to people who don’t have permission from the occupier to be on the premises
The act embraces not only trespassers but also others such as visitors to national parks or people exercising a right to roam
Those affected by the act are referred to as TRESPASSERS
What’s the duty of care under this act?
The duty of care under this act is limited as it wouldn’t be in the public interest to encourage trespassers to claim damages
Occupiers of premises don’t owe the same duty of care to persons who he has not expressly or impliedly invited in this premises
Most people who aren’t lawful visitors are trespassers although not all non visitors are trespassers
Innocent parties straying onto premises containing dangerous tool/equipment are protected by the act
Who may a trespasser be?
A trespasser may be a burglar or a child who’s climbed over railings to play on a railway line or a person who has inadvertently strayed onto a dangerous building site
British Railways Board v Herrington (1972)
A 6 year old child was injured when he strayed onto the railway line from a public park
He accessed the line through a broken fence and drivers had previously reported trespassers on the line
The board was liable for the child’s injuries since it knew of the possibility of trespassers and the risk could’ve been avoided by mending the fence and it wouldn’t have been very expensive either
Duty of Care Owed
Section 1(3) Occupiers Liability Act 1984 provides that a duty will be owed by an occupier to a trespasser who has suffered injury on his premises if;
- The occupier was aware of the danger on the premises or had reasonable grounds to believe that it existed
- The occupier knew or had reasonable grounds to believe that the trespasser was in the vicinity of danger
- The risk was one against which the occupier could reasonably be expected to offer the trespasser some protection
What cases demonstrate that the danger must arise from the premises
Keown v Coventry Healthcare NHS Trust (2006)
Ratcliff v McConnell and Harper Adams Agricultural College (1999)
Tomlinson v Congleton Borough Council (2003)
Keown v Coventry Healthcare NHS Trust (2006)
A 13 year old was injured when playing in the grounds owned by the trust
He fell from the underside of a fire escape
It was held the trust wasn’t liable
The danger arose from what the claimant chose to do, not the state of premises
Extent of the Duty
Occupier must take such care as is reasonable in all the circumstances of the case to ensure that the trespasser doesn’t suffer injury on the premises due to any dangers
What amounts to reasonable care depends on the facts of the case
Ratcliff v McConnell and Harper Adams Agricultural College (1999)
A student was injured when one evening he climbed over a seven foot wall and dived into the college pool
He broke his neck and became paralysed
Warning notices were displayed around the pool but the pool wasn’t lit at night
There was also a sign on the gate advising of the opening hours of the pool
It was held the college wasn’t liable
The pool itself wasn’t dangerous, diving into the shallow end was. This was an obvious danger
A combination of the high fence and the warning signs meant the college had
provided an adequate level of protection
Tomlinson v Congleton Borough Council (2003)
The claimant was injured when he dived into a lake where swimming was prohibited
Notices were displayed stating this
It was held the council weren’t liable
The risk didn’t arise from the state if premises, the risk arose from the claimant’s actions
The dangers of diving were also obvious
What section is relevant here?
S 1(6) is relevant here
No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another)
It wouldn’t be right to impose a duty to protect people from self inflicted injuries that result from taking obvious risks
For example, it’s an obvious risk to dive headfirst into the shallow end of a pool, so no duty is owed
Defences under the 1984 Act
Voluntary assumption of risk and contributory negligence are relevant here
Definition of premises and occupiers is the same in both acts
The duty of care to a visitor is a positive one and requires an occupier to ensure that visitors are reasonably safe, whereas the duty of an occupier to trespassers and other non visitors is only to take reasonable steps to prevent them being harmed
A visitor can become a trespasser. If a visitor strays into a part of the premises where they’re not expected to be and suffers an injury, the occupier is unlikely to be liable under the 1957 act as the visitor has exceed the scope of his or her permission to be on the land
