Section B- Occupiers Liability Flashcards
What is occupiers liability
Rule that the occupier may be liable if injury occurs on their land and the occupier had taken proper care.
Created by a statute
What is the occupiers liability act 1957
The occupier of premises owns a DOC to lawful visitors and if the visitor is injured they are entitled to receive compensation.
Occupiers liability act 1984
Trespassers have similar rights when injured on occupiers property
Case of wheat v E. Lancon & c0. Ltd
Manager of pub was allowed to rent out rooms in his private quarter. A guest fell on an unlit stair case and died.
Held- HOL decided that both the manager and employers could be occupiers under the act so can be more than one occupier of the premises
Case of Harris v Birkenhead corporation
Kids fell in an abandoned preoperty and established the person who is in control of the premises will be considered the occupier. May be influenced on whose insurance policy covers the premises.
Case of bailey v arms
Courts can find no one in control which leaves the injured visitor with no claim
Roof of a shop
What is premises
No full statutory definition but OLA 1957 references ‘any fixed or moveable structure, including any vessel, vehicle and aircraft’. Wheeler v copas stated that a premises included a ladder
How to decide liability under the OLA 1957
- is D an occupier of premises
- is C a visitor
-has D breached his duty- failing to keep C safe for their visit
If yes, liable under 57 act
What are the areas under the 1957 act
Adult visitors
Children
Traders
Independent contractors
What is s.2(1)
A lawful visitor is owed a DOC
What is s.2(2)
The occupier must keep the visitor reasonably safe for their visit purpose for which he is invited to be there
What do lawful adult visitors include
Invitees
Licensees
Contractual permission
Statutory permission
Lawful visitors- adults and cases
Dean and chapter of Rochester cathedral v debell stated
1. Te occupier has to ensure the land is reasonably safe for visitors but do not have to guarantee safety.
2. The risk will be reasonably forsee able if there is a real source of danger
Laverton v kiapasha takeaway supreme- shop owners taken reasoable care to ensure customers were safe
Laverton v kiapasha takeaway supreme (adults)
D owned a takeaway and had slip resistant tiles and workers mopped floor when had been raining. C came in when busy and raining and slipped.
Held: COA decided owners had taken reasoable care to ensure their customers were safe- not liable as didn’t have to keep completely safe.
Occupiers liability to children and cases
Will owe an additional special duty to child visitors and must be prepared for children to be less careful than adults so the premises must be reasonably safe for a child of that age.
The standard of care is measured subjectively according to the age of the child.
Occupier should guard against any allurment- Glasgow corporation v Taylor- liable if they are aware an injury could occur even if they couldn’t predict the exact way it could happen
Jolley v London borough of Sutton
Liddle v yorkshire CC
Very young children should be under parental supervision- O not liable
Phipps v Rochester corporation
Bourne leisure v marsden
Case of Glasgow corporation v Taylor (children)
A 7 year old child ate poisonous berries from a shrub in a public park and died
Held: council should have fenced off the danger and buries were an allurment
Case of jolley v London borough of Sutton (children)
For 2 years children played in an abandoned boat which council failed to move. Two boys lifted the boat up and suffered serious injury.
Held: HOL stated council was liable even though it wasn’t forsee able exactly what the children would do on the boat.
Case of liddle v yorkshire CC (children)
A child was injured when jumped off a soil bank
Held- despite obvious allurment the D was not liable since the O had warned the child on M numerous occasions
Case of Phipps v Rochester corporation (children)
5 year old was playing with 7 year old sister and fell down trench
Held- council not liable as O is entitled to expect the parents wouldn’t let them. Go to an unsafe area
Bourne leisure v marsden (children)
A 2 year old drowned in a pond whilst under care of parents
Held- holiday park not liable- pond dangers were ovious and parents should have seen then
Occupier liability to those carrying out trade or calling and cases
O owe tradesmen a common DOC
They won’t be liable where tradesman fail to guard against risks which they should know about or would be expected to know about.- roles v Nathan
Roles v Nathan (traders)
Two chimney sweep died after inhaling carbon monoxide- the sweeps had been warned of danger
Held- O not liable as they were right to presume the sweeps would have been aware of the danger.
Independent contractors and cases
If a visitor is injured by a worksmans negligent work, the occupier may have a defence and able to pass the claim to the workman, making them liable not the O.
1.must be reasoable for o to given work to IC- haselsine v daw& son ltd
2. Contractor must be competent to carry out task- bottomley v todmorden cricket club
3, O must check that the work has been properly done- Woodford v mayor of Hastings
If these conditions are satisfied then the C will claim from the IC rather than the occupier
Haseldine v daw & son ltd (IC)
The C was killed when lift fell to bottom of the shaft
Held- O not liable as the work was highly specialist- reasoable to give work to IC
Bottomley v todmorden cricket club (IC)
Hired a stunt team to carry the firework display but were not insured to use their own hand made fireworks
Held- cricket club was not able to pass liability as hadn’t carried out competent checks and IC was not competent to carry out the task
Woodward v mayor of Hastings (IC)
School couldn’t pass liability as didn’t check if the ice had been cleared
What are the defences in occupiers liability
Contributory negligence
Volenti non fit injuria (consent)
Warning notices
Exclusion causes
What is the difference between traders and independent contractors
Traders is when the trader is injured and have to find whether occupier is liable or the traders fault and they are support to know the risk.
IC is when somebody is injured and occupier can pass liability to IC if they were in charge to keep something safe in their specialist area.
Contributory negligence and case
When the C is partly responsible then the law reform (CN) act applies and damages can be reduced according to the amount of C fault
Yvonne Forrest v Iceland foods ltd
Yvonne Forrest v Iceland foods ltd (CN)
C tripped on raised edge outside supermarket- damages were 15000
Held- court deducted 25% as it was Cs fault for not looking where they were going
Volenti non fit injuria (consent) conditions
Will be no liability where the C has consented to the danger. Must show: a. Claimant had full knowledge of the precise risk involved. B.the claimant exercised free choice. C. C voluntarily accepted the risk.
Warning notices (defences) and cases
Complete defence and the warning can be oral or written. OLA states that a warning is ineffective unless ‘in all the circumstances it was enough to enable the visitor to be reasonably safe’ if there is extreme danger there is expected to put up additional warnings.
Rae v mars (UK) ltd
Staples v west Dorset district council
Rae v marrs (UK) ltd (warning notices)
A warning sign in a sheet about a pit in the shed was not sufficient
Whereas if the danger is ovious and the visitor is able to appreciate it, no additional warnings is necessary
Staples v west Dorset district council (warning notices)
The C slipped on wet algae and claimed on the basis that there were no warning signs
Held: the algae was obvious so no further warnings were required
Exclusion causes (defences)
Under OLA 1957 an occupier is able to ‘restrict, modify or exclude his duty by agreement or otherwise’ able to limit or exclude his liability for any injury caused to the visitor e.g. in car parks might restrict or remove liability.
A trader cannot exclude or restrict liability for death or personal injury resulting from negligence’
what is an issue with there not being a statutory definition for occupier
conflicts with the separation of powers as common law is being referred to, parliament should clarify this definition. this means judges are using their own judgement which could lead to judicial creativity. however this allows judges to be flexible with their decisions and create the best outcomes.
why is it a positive that there can be more than one occupier
increases likelihood of the claimant having a successful claim. in turn increases the cs access to justice. however the decision in bailey v armes appears to be a fair decision in this case but an issue will usually arise if the courts can not establish the occupier because the lawful visitor without a remedy.
why could the area of law around premises be deemed uncertain
due to the vague definition, the term premises is open to interpretation and therefore lead to inconsistencies. this in turn will lead the law being uncertain as different judges can interpret the thing in question differently and therefore conflicts with the rule of law.
what was the purpose in passing the 57 act
purpose in passing this act was to create a common duty of care to all lawful visitors because prior to the act different duties were owed to different types of lawful visitor. the act had the effect of being fairer and more consistent to different lawful visitors and possibly fairer to the occupier also. this adheres to parliamentary sovreighnety.
the 57 act is vague to regards to what ‘reasonably safe’ means. why is this an issue?
one problem is that it is subjective from judge to judge therefore can be difficult to know the outcomes of a case. this means lawyers are unable to advise clients about how safe reasonably safe actually is so hard to predict outcomes. this leads to claimant not pursuing the case due to the feat of the judge favouring the occupier, particularly if its a wealthy company.
should the standard of care be changed to ‘completely safe’ ?
yes- people can get injured and not receive compensation because there claimed to be some safety. however not possible to maintain and may deter people from owning businesses in the fear of being sued, this would remove the responsibility of c and blame D over things which may be hard to keep factors completely safe at all times.
this is evidenced in Laverton v kiapasha takeaway supreme where at busy times they cant control all risks but did the best they could.
is the 57 act balancing the rights of both the occupier and visitor
the occupier is protected as long as they kept some safety and protects them against frivolous claims which prevents the courts from being overwhelmed. the C can receive compensation if there was a lack of safety and the courts determine this so avoids occupiers from cutting corners. however as liability is only for the conditions of premises it may limit possible claims.
what is the argument behind favouring the occupier
the opposite ruling would open the floodgates for additional claims. this may then set an unrealistic high level of responsibility upon occupiers.
what is an advantage relating to allurements
the rule relating to allurements was decided before the act but is still used to effectively protect children as it lowers the threshold required for breach. this means occupiers must provide greater protection
how much protection depends on the child’s age- is this fair on both parties?
its fair on the claimant as they are eligible to compensation as long as the age of the child justifies the level of protection provided not being sufficient. this is also fair on occupier as they can escape liability for example if they are so young its the parents responsibility.
how does the test being one of general foreseeability favour the C over the C?
it ensures children are more likely to claim due to the language being non-specific- ‘child of that age’- claim is more likely to be successful as it if anything is foreseeable.
is there a lack of consistency when it comes to occupiers liability and children
there is a lack of age limit when a parent should stop taking responsibility and an occupier should become responsible. the case of Phipps also shows further inconsistency in this area as the decision conflicts with the case of Glasgow where the parents were able to claim for the death. however this may have been because children could be expected to be alone is parks without their parents.
parliament need to reform this so the courts and public are clear as to the boundaries of the law. however most people would agree that parents should take some of the responsibility for their children.
why is there a lack of protection for the claimant in traders
risk relevant to the trade in question can allow the occupier to escape liability. this could be an issue if inexperienced e.g. apprentice and not fully aware of risks involved can be left without compensation. however the tradesman who was injured related to their trade should have their own insurance to cover medical expenses.
in bottomley v todmorden cricket club is it fair to blame the cricket club?
yes- its a basic question to ask if the contractor was insured and its unclear why they didnt check. this encourages a greater standard of care as the public could be injured due to incompetence.
however this is arguably too high a standard and doing lots of checks can be time consuming. the stunt team should not be doing it if they are uninsured.
How is independent contractors fair on both parties
As the occupier avoids liability due to them not being at fault but the claimant can still claim from the contractor. Therefore the C gets compensation for injuries and ensures IC takes accountability when they are at fault and can’t hide behind not being the occupier. However the requirements are difficult to evidence so O may have to take liability.
What might a problem be in defences in regard to a child
Children may not be able to read warning signs and therefore what might be effective for an adult wont be for a child. Furthermore children willingly take risks and as a result a noticeable warning signs could further allure children to the danger. Therefore occupiers need to take greater precaution such as fencing off dangers but will be an expense to occupier which may be costly.
What act is liability for trespassers under
OLA 1984
What is a trespasser
A person who has no permission or authority to be on the occupiers premises or a visitor who has gone beyond their permission on the premises
How did the 84 act come about
Originally the occupier owed no duty at all to the trespassers as long as injury wasn’t deliberate. This seemed harsh especially in cases such as addie v dumbrek so HOL overruled using the practice statement. The LC then investigated this area and issues a report in 74 then the OLA 1984 was passed from ideas from, BRB v Herrington
What are the areas under the 84 act
Adult and child trespassers
What does s 1(1)(a) OLA 84 say
The occupier owes a duty to people who are not lawful visitors for personal injury only
Is it fair that trespassers have less protection than lawful visitors
Yes as they should not be there in the first place so its not fair for occupiers to be liable for an injury that should not have happened
This deters people from trespassing as they are not entitled to the same benefits
However some people may not know they are trespassing and could suffer a personal injury and property damage so restricted compensation
The occupier will only owe a duty under s.1(3) if..
S.1(3)(a) he is aware of the danger or has reasonable grounds to believe it exists
S.1(3)(b) he knows or has reasoable grounds to believe that there are trespassers in the vicinity e.g. in swain v natural ram puri- not had reasonable grounds to believe child was there.
S.1 (3) (c) the danger is one against which the occupier can be reasonably expected to provide same protection
There is a duty to trespassers but A number of court decisions appear to have restricted the duty to trespassers, what does this support?
Public opinion- most of public agree trespassers shouldn’t be protected when they are in the wrong and occupiers shouldn’t have a level of protection for living their lives
This however conflicts with the ROL as its not certain/ascertainable if judges are making different decisions
Adult trespassers
The duty is to take such care as is reasonable in the circumstances
It is an objective test which depends on the circumstances of each case e.g. greater risk, more precautions needed to take.
Factors to consider when deciding liability (adult trespassers)
Obvious dangers- O not liable if injured by obvious danger
Time of day or year- O not liable if didn’t expect anyone the time and day of the year
Warning signs- O not liable if warning signs ignored- don’t have to spend lots of money making safe from obvious dangers
Presence of a trespasser- not liable if have no reason to expect the presence of a trespasser
Danger known- not liable if not aware of danger and no reason to suspect danger existed
Case for obvious dangers (adult trespassers)
Ratcliff v McConnell
Ratcliff v McConnell
Jumped into open air swimming pool at night, decided O should not guard against ovious dangers
Trespassers
Case for the occupier nit expecting anyone there at the time and day of the year
Donoghue v Folkestone properties
Donoghue v Folkestone properties
Injured whilst trespassing on a harbour in winter in midnight and hit a grid on ground at low tide
Occupier didn’t owe C duty of care under 84 act and wouldn’t expect trespasser to jump at that time or day of the year
Case for the occupier not being liable when warning signs are ignored
Tomlinson v congleton borough council
Tomlinson v congleton borough council
Council put warning signs around a lake and c swam and was injured
Was no breach of duty as not reasonable to spends lots of money protecting visitors being injured
The case of the occupier not being liable if they had no reason to suspect the presence of a trespasser
Higgs v foster- could not have anticipated police officers presence on the premises
The case of the occupier not being liable if he was not aware of the danger or had no reason to suspect to
Rhind v astbury water park- not know there was a fibreglass container in the water park
The case of the occupier not being liable if he was not aware of the danger or had no reason to suspect to
Rhind v astbury water park- not know there was a fibreglass container in the water park
Child trespassers
The same statutory rules apply to child trespassers as they do adult trespassers
Cases for child trespassers
Keown v Coventry healthcare NHS trust
Baldaccino v west wittering
Baldaccino v west wittering
14yr old suffered injuries after climbed beacon on beach during low tide
Claim failed as there is no duty to warn of ovious danger
Is it fair that child trespassers are owed less of a duty than lawful visitor
Yes as occupier shouldn’t have to be liable for a child’s wrongful decisions and can discourage children from trespassing acting as a detterance. However its obvious children may do this as they are less careful and trespassing can act as an allurment so occupiers should guard against dangers as its ovious children might trespass
Warning signs on trespassers
A warning may be an effective defence if the danger is stated in clear terms as in Westwood v post office whether the warning applies to child trespassers will depend on age and understanding of the child
A03 for defences of the 84 act
For contributory negligence the judge decides what is needed appropriate therefore may lead to judicial creativity and their own opinions being used and so different decisions which goes against the ROL as it isn’t certain or ascertainable but can lead to fair decisions as the occupier can have reduced damages for the claimants mistakes.
The fact that warning signs depends on age and understanding- there is no defenition on when they are able to fully understand warnings signs which means outcomes of cases are unpredictable therefore lawyers are unable to advise clients which means parents with children are less likely to pursue claims and wont be compensated for injuries.
Comparing the 57 and 84 act
The 57 act allows for claims for personal injury and for damage to proper whereas the 84 act allows for claims of personal injury only this shows that trespassers compensation can be more limited which is deemed fair by many.
There are different tests in the acts which could cause confusion. The 1957 act judges the Ds act objectively so they’ve have to do everything that is reasoable to ensure the visitor is safe. Whereas 84 act only imposes a duty subjectively. A subjective test is inconsistent with most torts and has unusual outcomes.
84 act requires the occupier to have actual knowledge of the danger whilst the 57 act doesn’t seem to. This means that 57 act is easier to prove so lawful visitors are protected more than trespassers.
No duty is owed by the occupier when the trespasser is injured due to obvious danger. This concept of obvious dangers has recently been introduced into claims under the 57 act showing consistency in the law.
Reforms
No fault liability- introduced so the occupier would have to pay compensation for all injuries on their premises. Unlikely introduced because all occupiers would need insurance.
A state run compensation scheme paid for by an extra tax on all property insurance policies.
Personal responsibility imposed by judges- despite rights given to 84 judges have imposed extra hurdles on claims by trespassers so vert few claims succeed and this also seems to apply to lawful visitors e.g. dean and chapter of Rochester cathedral v debell 2016.
Remedies (PQ only)
Pecuniary losses
Non pecuniary losses
Pecuniary losses and damages
Quantified into momentary terms e.g. injury taking time off work
Special damages
Non-pecuniary losses and damages
Can’t be quantified into monetary terms e.g loss
General damages
