Topic 2- Occupiers Liability Flashcards
contributory negligence, duty of care, OLA 1984,special cases- children,warnings
what is occupier liability
An occupier of property owes a common law of duty of care to all their visitors in respect of dangers due to the state of premises or things done omitted to be done to them. They must take reasonable care as in reasonable in all the circumstances of case
OLA - occupiers Liability Act 1957 - ), an occupier of property owes a common law duty of care to all their visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them. They must take such care as is reasonable in all the circumstances of the case
law leading authority= Esdale v Dover District Council
What are the two legislations?
- Occupiers Liability Act 1957
- Occupiers Liability Act 1984
Key distinction between lawful visitors and trespassers
Occupancy and activity duties CASE LAWS
Ferguson v Welsh, 1987
Fairchild v Glenhaven Funeral Services, 2002
Ogwo v Taylor, 1988
Who may be liable?- What is liability in TORT LAW
WHO OWES A DUTY
Wheat v Lacon, 1966 – the test of control
CASE FACTS
FACTS: The defendant brewery owned a pub, which it entrusted to a manager and gave him permission to live with his wife on the first floor and take in paying guests. A paying guest was killed falling down an unlit staircase, which had an inadequate stair rail.
HELD: The House of Lords held that there was nothing in law to prevent there being more than one occupier of a premises. Here, the defendant, along with the manager, was the occupier of this staircase but neither had breached their duty as the light bulb had recently been removed by a stranger.
Who may claim?
Common law – variable standards for different types of lawful visitor and trespassers
Law Reform Committee Report 1954
Statutory Regimes: the OLA 1957: contractual entrants, invitees and licensees now
owed the same, ‘common’ duty of care explained in section 2(2):
‘a duty to take such care as is reasonable in all the circumstances to ensure that a visitor
will be reasonably safe in using the premises for the purposes for which he/she is
invited/permitted to be there
Who may claim = CASE LAWS
Bolton v Stone, 1951
Simms v Leigh RFC Ltd, 1969
Clare v Perry, 2005
Tomlinson v Congleton Borough Council, 2003
Spearman v Royal United Bath Hospitals NHS Foundation Trust, 2017
What is the scope of Occupiers Liability Act 1957
The scope of the Act
According to s 1(1), the Act was intended to:
regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.
This has been interpreted as creating an ‘occupancy’ rather than ‘activity’ duty. The source of damage must originate with the premises itself rather than with what someone does on it.
To whom is a duty owed under the ACT?
Section 1(2) refers to ‘visitors’. Visitors are those who have express or implied permission to enter the premises, and would have been licensees and invitees under the old common law. This will also include those who enter in the exercise of a right, such as a fireman, but does not include those using a right of way.
CASE LAW
In Spearman v Royal United Bath NHS Foundation Trust (2017) a patient who, while ill and disturbed, climbed onto the roof of a hospital and jumped, was held to have remained a visitor for the purposes of the 1957 Act, on the grounds of reasonable foreseeability.
LIMITATIONS to whom is a duty owed under the ACT
Limitations
An entrant can be a visitor in one part of a premises but a trespasser in another. It was said in The Calgarth (1927), ‘When you invite a person into your house to use the stairs, you do not invite him to slide down the banisters.’
In Ferguson v Welsh (1987) unauthorized subcontractors on a building site were visitors in relation to their immediate employer but trespassers to the owner of the property.
See also Glasgow Corporation v Taylor (1922), later in the chapter.
Common law liability to trespassers
Addie v Dumbreck, 1929
Bird v Holbrook, 1828
Cooke v Midland Great Western Railway
Glasgow Corporation v Taylor, 1922
A child playing in a park was poisoned by eating some attractive berries he took from a bush.
PRINCIPLE=Although the child was a trespasser in relation to the bush, the berries were seen as an allurement and therefore the child was to be treated as a licensee (or visitor) to whom a duty of care was owed
British Railways Board v Herrington, 1972
TRESPASSERS under the OLA 1984
Section 1 (3)
a duty is owed if the occupier knows or has reasonable grounds to believe that:
* the risk exists;
* the non-visitor is or may come to into its vicinity; and
* the risk is one which, in all the circumstances, he can reasonably be expected to offer some
protection against.
Tomlinson v Congleton 2003 UKHL 47 BC, per Lord Hoffman:
The claimant was seriously injured when he ignored warning signs and dived into the shallow end of a lake on the defendant’s property.
PRINCIPLE= The defendant may have been aware of the danger and certainly was aware of the presence of the trespassers, but the risk was not one regarding which it was reasonable to expect protection. No duty arose because the injury stemmed from what the claimant had done, rather than the state of the premises.
- Did D have knowledge/foresight of the danger?
- Did D have knowledge/foresight of the presence of the trespasser?
- Was there a reasonable expectation of protection?
Section 1(4) OLA 1984: “… such care as is reasonable in all the circumstances of the case to see that he
does not suffer injury on the premises by reason of the danger concerned
Further illustrations
- Knowledge of (or reasonable grounds to believe in the existence of)
danger:
Rhind v Astbury Water Park Ltd, 2004
CASE FACTS
Late one night, while drunk, the claimant was injured when he dived into the defendant’s swimming pool, having climbed a wall and entered as a trespasser.
PRINCIPLE=There was no duty of care owed under the 1984 Act. The main reason for the decision was that, according to s 1(6), the plaintiff had voluntarily accepted the risk.
Scott v Associated British Ports, 2000
- Knowledge of (or reasonable grounds to believe in) the presence of trespassers in the vicinity of the danger:
Donoghue v Folkestone Properties Ltd, 2003
* Reasonable expectation of protection against the risk
Defences
- Consent
Titchener v British Railways Board, 1983 - Contributory negligence
Ratcliff v McConnell, 1999, 1 WLR 670
FACTS
Late one night, while drunk, the claimant was injured when he dived into the defendant’s swimming pool, having climbed a wall and entered as a trespasser
PRINCIPLE= There was no duty of care owed under the 1984 Act. The main reason for the decision was that, according to s 1(6), the plaintiff had voluntarily accepted the risk.
NON lawful visitors : TRESPASSERS
TRESPASS to land=
what is VOLENTI
Section 1(6) specifically retains the defence of volenti (or consent). This was applied in Ratcliff v McConnell (1999) where the claimant was held to have knowingly accepted the risk when, while drunk, he climbed over a high fence into a locked swimming pool after hours. There was also a warning sign and a situation of obvious danger.
CASE LAW= Ratcliff v McConnell (1999)
Late one night, while drunk, the claimant was injured when he dived into the defendant’s swimming pool, having climbed a wall and entered as a trespasser
PRINCIPLE = There was no duty of care owed under the 1984 Act. The main reason for the decision was that, according to s 1(6), the plaintiff had voluntarily accepted the risk.
