Occupiers Liability - Week 9

Question 1

Who does the law impose duties on

Answer 1

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

Question 2

What are the two statutes governed occupiers liability

Answer 2

• The Occupiers Liability Act 1957
• The Occupiers Liability Act 1984

Question 3

Who does the statute impose duties on?

Answer 3

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)

Question 4

The Liability to People on the Premises

Answer 4

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

Question 5

Occupiers’ Liability Act 1957

Answer 5

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

Question 6

Who is the occupier? - Wheat v Lacon (1966)

Answer 6

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

Question 7

Can there be more than one occupier?

Answer 7

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)

Question 8

What are the premises?

Answer 8

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

Question 9

The extent of the occupiers duty

Answer 9

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

Question 10

Info

Answer 10

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

Question 11

The standard of care

Answer 11

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

Question 12

Cunningham v Reading Football Club (1991)

Answer 12

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

Question 13

Murphy v Bradford Metropolitan Council (1991)

Answer 13

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

Question 14

Clare v Perry (2005)

Answer 14

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

Question 15

Risk Assessment and Compliance - Bowen v National Trust (2011)

Answer 15

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

Question 16

Children and those with Special Skills

Answer 16

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

Question 17

Children

Answer 17

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

Question 18

Glasgow Corporation v Taylor (1922)

Answer 18

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

Question 19

B v JJB Sports (2006)

Answer 19

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

Question 20

Info from cases above

Answer 20

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

Question 21

Phipps v Rochester Corporation (1955)

Answer 21

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

Question 22

Bourne Leisure Ltd v Marsden (2009)

Answer 22

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

Question 23

Visitors with special skills

Answer 23

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

Question 24

Roles v Nathan (1963)

Answer 24

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

Question 25

Discharging the Duty

Answer 25

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

Question 26

Trustees of Portsmouth Youth Activities v Poppleton (2008)

Answer 26

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

Question 27

What are the defences available to an occupier?

Answer 27

1) Volenti Non Fit Injuria
2) Contributory Negligence
3) Exemption of Liability

Question 28

Volenti Non Fit Injuria - Visitor Accepts the Risk

Answer 28

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

Question 29

Contributory Negligence

Answer 29

The degree of care a reasonable visitor can be expected to take is taken into account

Question 30

Exemption of Liability

Answer 30

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

Question 31

The Occupiers Liability 1984

Answer 31

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

Question 32

What’s the duty of care under this act?

Answer 32

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

Question 33

Who may a trespasser be?

Answer 33

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

Question 34

British Railways Board v Herrington (1972)

Answer 34

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

Question 35

Duty of Care Owed

Answer 35

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

Question 36

What cases demonstrate that the danger must arise from the premises

Answer 36

Keown v Coventry Healthcare NHS Trust (2006)

Ratcliff v McConnell and Harper Adams Agricultural College (1999)

Tomlinson v Congleton Borough Council (2003)

Question 37

Keown v Coventry Healthcare NHS Trust (2006)

Answer 37

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

Question 38

Extent of the Duty

Answer 38

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

Question 39

Ratcliff v McConnell and Harper Adams Agricultural College (1999)

Answer 39

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

Question 40

Tomlinson v Congleton Borough Council (2003)

Answer 40

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

Question 41

What section is relevant here?

Answer 41

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

Question 42

Defences under the 1984 Act

Answer 42

Voluntary assumption of risk and contributory negligence are relevant here

Question 43

Definition of premises and occupiers is the same in both acts

Answer 43

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