occupiers liablity

Question 1

occupiers liability act 1957

Answer 1

the duty owed to lawful visitors or those with permission to enter the land is defined in the occupiers liabilIty act 1957

Question 2

Wheat v E lacon and co. 1966

Answer 2

the defendant guest in a brewery house. the mangers of the brewery house lived on the premises and occupied a private portion there. A paying guest, Mr wheat fell down the stairs of the private part and was killed, because there was no handrail on part of their stairs and an unknown person had removed the lightbulb on the stairway. The estate of the deceased guest sued the brewery under occupiers liability act 1957.
principle the house of lords held that both the manager and his employers could be occupiers for the purpose of the act. In event neither had actually breached their duty since it was a stranger who had removed the light bulb and therefore was no liability.
legal principle occupier is the person in control of the premises

Question 3

harris v Birkenhead corporation 1976

Answer 3

a four year old child was injured in an empty house. the local council had served a compulsory purchase order on the house, but it had not been boarded up yet or made it secure as it had not yet taken possession was decided it was in occupation as it was effectively in control of the premises.
legal principle the occupier is the person in control of the premises

Question 4

bailey v Armes 1999

Answer 4

the defendant lived in a flat above the supermarket. They allowed their son to climb out of the window and play on the roof but forbade him to take anyone else there. The supermarket knew nothing of the use of the roof. The boy took a friend on to the roof and he was injured when he fell of the roof. the court decided that neither the supermarket nor the defendant were liable - control over the means of access he window was not sufficient to make the defendants liable.
legal principle: there is no claim if control cannot be established

Question 5

what are the four categories of occupier?

Answer 5

1 If a landlord lets premises than the tenant will be the occupier
2 if a landlord who lets part of a building retains certain areas such as entry hall then the landlord will be occupier in respect of these areas
3 if an owner licenses / allows a person to use premises but reserves the right of entry than the owner remains the occupier
4 if contractors are employed to carry out work on the premises the owner will generally remain the occupier although there maybe circumstances where the contractor could be the occupier

Question 6

what else does occupiers liability act 1957 include other than land and buildings?

Answer 6

fixed or movable structure that includes vessels, vehicles and aircraft

Question 7

whats expressed permission

Answer 7

if they have been asked to enter the premises,permissio can be withdrawn but the person must be given a reasonable amount of time to leave the remises before he or she can be a tresspasser.

Question 8

whats implied permision?

Answer 8

may not have expressed permission to be in place but may still be classed as a visitor if the courts decide that he or she had implied permission to be there.
permission can be implied in a number of situations the police, fire brigade those who need to gain access to read gas, electricity and water meters and sales people are all taken to have implied permission and are classed as visitors.in addition, the courts may also imply permission in certain circumstances depending on the facts of the case.

Question 9

what does the 1957 act state?

Answer 9

this duty will only imply while visitors are using the premises for the purposes for which the are invited or permitted to be there for. this means that if the visitor does something there not invited or permitted to do the occupier owes no duty toward him or her under the 1957act. for example when you invite someone to your house to use the stairs you do not invite them to slide down the banister.

Question 10

Laverton v Kiapasha takeway supreme 2002

Answer 10

The defendant 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 visited the shop it was very busy and had been raining. She slipped and broke her ankle. the court of appeal decided that the shop owners had taken reasonable care to ensure its customers were safe. they were not liable as they did not have to make the shop completely safe.
legal principle there is no claim if reasonable care has been taken

Question 11

Dean and chapter of rochester catheral v Debell 2016

Answer 11

the claimant was injured when he tripped and fell over a small lump of concrete protruding about two inches from the base of a traffic bollard in the precincts of Rochester cathedral the bollard had previously been slightly damaged by a car.
the court of appeal decided that:
1 tripping, slipping and falling are everyday occurances. no occupier of premises like a cathedral could possibly ensure all the surrounding roads were safe. The obligation is on the occupier to make the land reasonably safe, not guarantee safety.
2 the risk is reasonably foreseeable only when there is a real source of danger which is reasonable person would recognise as obliging the occupier to take remedial action.
legal principle: the occupier has to make premises reasonably safe not guarantee safe.

Question 12

cole v David - gilbert , the royal british legion and other 2007

Answer 12

the claimant was injured when she trapped her foot in a hole in a village green where a maypole had been erected in the past. she argued that the owner of the village green had a duty to ensure visitors were safe; that the british legion had failed to properly fill the hole after the village fete; and that the local council had failed to adequately maintain the green. She won at first instance but failed in court of appeal. the court held that since her injury took place nearly two years after the maypole had been in place the duty on the british legion could not last that long. Although there was no specific evidence to support the view, the hole must have been opened again by a stranger and the incident was a pure accident.
legal principle: the duty does not cover accidents

Question 13

what should the occupier guard against ?

Answer 13

allurement or attraction which places the child at risks as it entices them. it also states in the 1957 act that ‘must be prepared for children to be less careful than adults so the premises must be reasonably safe for a child’

Question 14

Glasgow corporation v Taylor 1922

Answer 14

in this case a seven year old ate poisonous berries in botanical gardens and died as a result. The shrub which the berries grew on was not fenced off in any way.
Principle: The court held that the occupier should have expected that the berries might naturally attract a young child’s interest. Therefore the occupier was liable.
legal principle: the occupier should be aware that the allurement may place children at risk.

Question 15

Phipps v Rochester corporation 1922

Answer 15

in this case a five year old child was injured having fallen down a trench dug by the defendant council where the child frequently played.
Principle: the court held that defendant was not liable because the court concluded that the parents should have had a child of that age under proper control.
legal principle: the occupier will not be liable if parents should have been supervising the children

Question 16

Jolley v London Borough of sutton 2000

Answer 16

the council has failed to move an abandoned boat situated on its land for two years. children regularly played on the boat and it was clearly a potential danger. when two boys aged 14 jacked up the boat to repair it, the boat fell on one seriously injuring him. the claim for compensation succeeded in the high court but failed on the court of appeal as it was decided that while the boat was an allurement the course of action taken by the boy and the specific type of injury was not foreseeable.
in an appeal to the house of lords the view was reversed. in their view it was foreseeable that children would play on the abandoned boat. it was not necessary for the council to foresee exactly what they would do on it. They considered that children often find ways of putting themselves in danger, which needed to be taken into account by the occupier when considering how to keep them safe.
legal principle: the standard of care for children is higher as their behaviour is less predictable

Question 17

what does act 1957 section 2 (3) b state

Answer 17

an occupier may xpect that a person in the exercise of his calling, will appreciate and guard against any special risks ordinarily incidental to it so far as the occupier leaves him free todo so
Those carrying out a trade are therefore expected to take measures to avoid the risks associated with it. For example, an occupier could expect an electrician to take precautions to avoid being electrocuted

Question 18

Roles v Nathan 1963

Answer 18

The case involved two chimney sweeps who died after inhaling carbon monoxide fume while cleaning flues of a coke fired boiler in an industrial chimney. The sweeps had been warned of danger
Principle the court held that the sweeps should have accepted the advice of the occupier to complete their work with the boilers off rather than leaving them lit
Legal principle the occupier will not be liable for harm to tradespeople if the tradespeople have not guarded against known risks

Question 19

What must the independent contractor satisfy for the occupier not to be liable for the independent contractors actions?

Answer 19

It must have been reasonable for the occupier to have entrusted the work to the independent contractor. Haseldine v daw &son Ltd 1941
The contractor hired must be competent to carry out the task bottomley v Todmorden cricket club 2003
If possible the occupier must inspect the work Woodward v major of Hastings 1945

Question 20

Hazeldine daw and son

Answer 20

The claimant was killed when a lift plunged to the bottom of a shaft. The occupier was not liable for negligent repair or maintenance of the lift as this work is a highly specialist activity and it was reasonable to give the work to a specialist firm.
Legal principle the occupier may have a defence for harm caused by negligent workmen if they can satisfy the three criteria.

Question 21

Bottomley v Todmorden cricket club

Answer 21

the Cricket club hired a stunt team to carry out a ‘firework display’. The team chose to use ordinary gunpowder, petrol and propane gas, rather than traditional fireworks. they also then used the claimant who was an unpaid amateur with no experience of pyrotechnics for the stunt . the claimant was burnt and broke an arm when the stunt went wrong . he stunt team had no insurance. The court of appeal decided that the club were liable as they had failed to exercise reasonable care to choose safe and competent contractors.
legal principle: the occupier may still be liable for the negligence of workmen if they do not check that the workmen are competent.

Question 22

Woodward v The mayor of Hastings 1945

Answer 22

A child was injured on school steps that were left icy after snow had been cleared off them. The occupiers wee liable as they had failed to take reasonable steps to check the work had been done properly and the danger should have been obvious to them.
legal principle : The occupier must check that the work has been carried out properly.

Question 23

Defences - Warning

Answer 23

section 2 4 a of the occupiers liability act 1957 states that: ‘where damage is caused to a visitor by a danger of which he had been warned by the occupier there warning is not to be treated without more as absolving the occupier from liability unless in all circumstances it was enough to enable the visitor to be reasonably safe. ‘ what amounts to sufficient warning will depend on that facts in each case.
if a warning is not sufficient the occupier remains liable under the 1957 act. However , an occupier does not have to warn against an obvious danger.

Question 24

Defence - exclusion clauses

Answer 24

s2 1 OLA 1957- an occupier is able to restrict modify or exclude his duty by agreement or otherwise’
this means that an occupier can reduce their liability by placing clauses in their warning notices.
However, for business occupiers s21 of the unfair contract terms act 1977 and s65 consumer rights act 2015 states hat these clauses on business premises are ineffective.

Question 25

other defences contributory negligence-

Answer 25

this is a partial defence and may reduce the risk of damages paid , of it can be shown that the claimant has contributed to their own harm or injury

Question 26

volenti consent

Answer 26

this is a complete defence and can lead to the claimant being found not liable for the harm or injury

Question 27

what can the claimant claim for ?

Answer 27

any personal injury or property damage

Question 28

occupiers liability act 1984

Answer 28

introduce a duty of common humanity on to occupier towards trespassers

Question 29

Addie v dumbreck 1929

Answer 29

The defendant owned view park colliery which was situated in a field adjacent to a road. There was a fence around the the perimeter of the field although there were large gaps in the fence. The field was frequently used as a short cut to a railway station and children would use it as a play ground. The defendant would often warn people of the land but the attempts were not effective and no real attempt was made to ensure that people did come onto the land. A child came onto the land and was killed when he climbed onto the haulage apparatus.
Held : no duty of care was owed to the trespassers to ensure that they was safe when coming onto the land. The only duty was not to inflict harm willfully.

Question 30

British railway board v Herrington 1972

Answer 30

The claimant was a child aged six was badly injured when he trespassed onto an electrified railway line owned by the defendants. The railway line ran next to a field open to the public and where the defendant knew it was common for children to play . The fence between the field and the line had been trodden down for some time but the defendant had done nothing about it.
Principle, the house of lord held that the defendant was liable because common sense and humanity suggested that if a company were to build something as dangerous as an electric railway line in the vicinity of an area in which children played they should take measures to protect the children particularly where the danger was not so obvious to a small child. However this duty of common humanity was uncertain in its scope so parliament clarified this position in the enactment of the occupiers liability act 1984

Question 31

Tresspasser

Answer 31

A tresspasser is someone who enters land or premises without permission. His or her presence must either be unknown to the occupier or if known must be objected to.

Question 32

An occupier of premises owes duty to another if

Answer 32

A he is aware of the danger or has reasonable grounds to believe that it exists
B he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicini Of the danger and
C the risk is one against which in all circumstances of the case he may reasonably be expected to offer the other some protection
All three done to exceed their duty of care claimant must show all three exist if not the occupier owes no duty

Question 33

Ratcliff v MCCONNELL

Answer 33

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 ledge. He was seriously injured.
The court of appeal decided the occupier was not required to warn adult trespassers the risk of injury against obvious dangers. In this case there was not hidden danger as it was well known that swimming pools vary in depth, and diving in without checking the depth is dangerous.
Legal principle the occupier will not be held liable if the adult trespasser is injured by an obvious danger.

Question 33

Unlike 1957 act

Answer 33

1984 does not cover damage to property an occupier will be liable for personal injury only. This act appears to have given a right to claim compensation to trespassers when they have been injured while trespassing . However there are a number of restrictions

Question 34

Donoghue v Folkestone properties 2003

Answer 34

The claimant was injured when he was trespassing on a slipway in a harbour and dived into the sea hitting a grid pile used for mooring boats . The grid pile would have been visible at low tide. The injury happened in the middle of winter, at around midnight. The court held that the occupier did not owe the claimant a duty of care under the 1984 act as they would not expect that a trespasser might be present or jump into that time of day or year.
Legal principle the time of day or year will be relevant in deciding if the occupier has a duty of care .

Question 35

Tomlinson v Congleton borough council 2003

Answer 35

The claimant visited a country park owned by the defendant council. He chose to dive into a lake despite the presence of a single forbidding swimming.
Principle at the point he dived in he became a trespasser as he had moved from activities he was permitted to undertake to an activity he was not permitted to undertake. When he was injured in the lake his claim was brought under the Ola 1984, as a trespasser even though he started as a lawful visitor. Furthermore defendant had made it known they were going to turn the land into a marsh area to prevent this sort of behaviour the judge said that was unnecessary and too costly precaution.
Legal principle the occupier does not have to spend lots of money to make premises safe from obvious danger.

Question 36

Higgs v foster 2004

Answer 36

A police officer investigating a crime entered the occupiers premises to carry out surveillance. He fell into an uncovered inspection pit suffereing severe injuries, causing him to retire from the police service. The police officer was judges to be a trespasser on the premises. Although the occupier knew the pit was a potential hazard they could have not anticipated his presence or in the vicinity so they were not liable.
Legal principle the occupier will not be liable if they have no reason to suspect the presence of a trespasser

Question 37

Rhind v Astbury water park 2004

Answer 37

The occupier did not know of a submerged fiberglass container resting on the bottom of a lake on its premises. The claimant ignored a notice stating private property. Strictly no swimming and jumped into the lake and was injured by the objects below the surface of the water.
S13c requires the occupier to owe a duty of care if the ‘risk is one against which in all circumstances of the case he may be expected to the other some protection ‘
Legal principle the occupier will not be held liable if they are unaware of the danger

Question 38

Keown v Coventry healthcare NHS trust 2006

Answer 38

An 11year old boy climbed a firescape on the exterior of a hospital to show off to his friends and fell. The court of appeal held that, since the child appreciated the danger, it was not the state of the premises the fire escape was not faulty but what the boy was doing on it. There was no danger due to the state of the premises and the hospital was not liable.
As the occupier did not know of the dangerous objects no duty was owed.
Legal principle, the court may take a similar stance in child cases to adult cases

Question 39

Baldaccino v West wittering 2008

Answer 39

On a summers day a 14 year old boy climbed a navigational beacon sited of a beach as the tide was ebbing. He dived off the beacon suffering neck injuries and tetraplegia. He was a lawful visitor to the beach but a trespasser to the beacon. It was decided there was no duty on the part of the occupier to warn against obvious dangers and the injury did not result from the state of the premises. His claim failed.
Legal principle the court may take a similar stance in child cases to adult cases

Question 40

Defences warnings

Answer 40

A warning sign may suffice, but only if it is clear enough so that the risk is obvious enough to the tresspasser

Question 41

Westwood v post office

Answer 41

The claimant , an employee of the post office was injured when they entered as a tresspasser, an unlocked room which had the notice only the authorised attendant is permitted to enter. The door should have been locked. The defendants were not liable as a notice should have been enough notice for an adult. A warning g sign can be enough to warn of obvious dangers.

Question 42

Defence volenti consent

Answer 42

No duty is owed to any person in respect of risks willingly accepted as his by that person.

Question 43

Defence contributory negligence

Question 44

Remedies

Answer 44

Money successful claimants can claim for damages for death and personal injury 1984 after cannot claim for loss to property