Tort - Occupiers' Liability

Question 1

Where C has been injured due to the state of the premises what would you use?
Cf. where C has been injured due to something other than the state of the premises.

Answer 1

Use statute where has been injured due to state of premises.
Occupiers’ Liability Act 1957 for visitors
Occupiers’ Liability Act 1984 for non-visitors

Where C injured due to something other than the state of the premises use a negligence claim.

Question 2

What must a C be for a claim to be brought under the 1957 act?

Answer 2

A visitor = anyone invited or permitted to enter the premises
Permission can be express or implied
C can exceed the permission and become a non-visitor (Tomlinson v Congelton BC where C ignored notice and swam in lake)

Express permission may be restricted by area, purpose or time (The Calgarth)

The potential D must be the occupier of the premises. “Occupier” isn’t defined in the 1957 act, but it has been defined in CL as any person with “sufficient degree of control” over the premises (Wheat v Lacon)

Premises is any fixed or movable structure, this includes vessels, vehicles, aircraft or ladders.

Question 3

What may implied permission arise out of for a claim under the 1957 act?

Answer 3

Implied permission - e.g. Public and private rights of way, a postman walking up the garden path
A notice may be used to limit or exclude implied permission

A third party will have implied permission if they have CONTRACTED with the occupier (contractual licence)

Permission may also be implied where a person has lawful authority to enter premises, for example a policeman with a search warrant.

Question 4

What is the occupier’s duty to visitors?

Answer 4

To ensure the state of the premises. It is NOT a duty to the person. It is a statutory duty to visitors in repeat of the dangers of the STATE of the premises.

Occupier’s liability does not cover activities taking place on the land. Dangerous activities are covered by negligence.

The duty is non-delegable and applies to all those classed as visitors, unless the occupier has restricted/extended the duty expressly.

Question 5

What do you have to determine to see if the duty has been breached under the 1957 act?

Answer 5

Have to det the standard of care of the duty and then see if this has been breached.

The duty to take reasonable care to ensure the visitor’s reasonable safety using the premises for the purposes for which he is invited or permitted by the occupier to be there.

He must take reasonable steps to ensure the visitor’s safety

Duty is judged objectively, but it is not absolute. The level of the duty will vary depending on what sort of person enters the premises.

Question 6

In case did a judge say that if you invite someone into your house to use the stairs you don’t expect them to slide down the bannisters? What was the point of law?

Answer 6

The Calgarth
Express permission may be restricted by area, purpose, or time. The visitor may turn into a non-visitor if they go beyond the permission expressly/impliedly granted to them.

Question 7

Which case was about a room in a pub and handrail which was too short? Point of law?

Answer 7

Wheat v Lacon
An occupier is someone with a suffice to degree of control over the premises. It is possible to have more than 1 occupier.

Pub was owned by a brewery, however the brewery had less control than the manager.
There was a novus actus (third party took the light bulb) so no liability.

Question 8

To whom will the standard of care owed be higher under the 1957 act? 3 cases?

Answer 8

Individuals with uncommon characteristics, e.g. The blind

Children. Doctrine of allurement.
An occupier must recognise (reasonably foreseeable) the potential for children to stray onto or be allures onto his property and must take adequate STEPS to mitigate this risk (except where can expect parental supervision, or the children are older).

Jolly v Sutton
Boat on council-owned land. So council were liable even though didn’t want the children on their land!

Glasgow Corp v Taylor
Poisonous berries on a bush

Phipps v Rochester Corporation
Blackberrying, fell into ditch and injured
There was no breach here, since D was allowed to expect reasonable supervision from the children’s parents
Criticism: the parents couldn’t SEE the danger (ditch) so how were they expected to guard against it?

Question 9

When will a lower standard of care be owed to visitors under the 1957 act? 2 cases?

Answer 9

When the visitor is a person in the exercise of their calling, I.e. They have special expertise.

Occupiers can expect him to guard against special risks incident to his work, in so far as the occupier leaves him free to do so (Roles v Nathan)

Roles v Nathan
Chimney sweeps - can expect them to guard against the special risks incident to their work.
Note that sometimes a risk will be so high that even a warning will be insufficient to exclude liability.

Haseldine v Daw
Visitor hired to maintain lift. Crash. Work was sufficiently complex so as to exclude the occupier’s liability. The visitor was expected to take adequate precautions and assume the risk. The occupier didn’t have to supervise him.
It would have been a breach had the occupier not chosen someone who was sufficiently competent.

Question 10

In order for warnings to be effective what must they be? Statute?
Case?

Answer 10

A genuine attempt to fulfil a duty. They must be effective to enable visitors to be reasonably safe. 2(4)(a)

White v Blackmore
A warning has to be useful. Has to be a genuine attempt to fulfil a duty.

But sometimes a danger will be so great that even a warning won’t be sufficient to exclude liability (Roles v Nathan)

Question 11

Which case would you use to illustrate the principle of a liability wrt independent contractors?

Answer 11

2(4)(b) OLA

The occupier won’t be liable if he acted reasonably in hiring a contractor, ensured they were competent (e.g. Insurance position check), reasonably supervised them. Less supervision will be required where the work was more difficult or dangerous

Haseldine v Daw
Lift maintenance, complex work so couldn’t expect the occupier to supervise them.

Question 12

After assessing standing, duty and breach, what else must you look at for a claim under the 1957 act?

Answer 12

[Breach
(Nature of risk, level of risk, age and type of person visiting, reasonableness and effectiveness of any exclusion, notice or warning, or precautions taken)]

Causation
Wheat v Lacon - novus actus
The Calgarth - have they overstayed their permission?

Remoteness
Wagon Mound No1 - TYPE of damage must be reasonably foreseeable.

Defences
Contributory negligence
Consent (volenti non fit causa)
Exclusion notices

Question 13

When might liability be excluded?

Answer 13

S.2(1) - can exclude liability so long as in the course of business

Can’t exclude or restrict the duty he owes to third parties in CONTRACT (s.3 OLA 1957)
Can’t exclude liability for death or personal injury resulting from neg UCTA 2(1)

S.2(1) OLA 1957: can exclude or restrict liability so far as he is free to do so. This will be s.t a reasonableness test governed by s.11 UCTA
S.2(1) OLA 1957 only applies where IN THE COURSE OF BUSINESS

If the premises are being used for recreational or educational purposes then UCTA won’t apply. Here can exclude liability but not for death or personal injury - and have to notify visitors of this.
(Note it is possible that exclusion clauses are ineffectual against children)

Question 14

For a claim under the 1984 act what must the potential C be?

Answer 14

A non-visitor = a person other than a visitor who goes into the premises without invitation and whose presence is either unknown to the proprietor or if it is known, it is practically objected to.

S.1(1) OLA 1984

Note no adult has successfully sued under this act!

Question 15

What must the potential D be in order for a claim to be brought under the 1984 act?

Answer 15

An occupier (no statutory definition)
Wheat v Lacon
Occupier = any person with a sufficient degree of control over the premises.

Question 16

What is the duty owed to non-visitors?

Answer 16

S.1(3) OLA 1984

1. Danger (subjective - is he aware of the danger?)
2. Proximity (subjective - does he know people are in the vicinity?)
3. Precaution (objective - is the risk one he can be expected to protect against?)

Need all 3 to impose a duty.

This duty is to take reasonable care to ensure a non-visitor doesn’t suffer any injury on the premises by reason of the danger concerned. S.1(4) OLA 1984

Question 17

What sort of level is the standard of care owed to trespassers?

Answer 17

Lower
Where trespassing for criminal reasons the standard may be even lower.
Tomlinson v Congelton
Here he overstayed his permission and became a non-visitor. Swam in a lake covered in slimy plants, slipped, injured himself. Court rejected the claim, said he shouldn’t’ve been winning in the lake, so the council was under no duty to remove the slimy plants.

Question 18

Which case looks like a 1984 act case but is really a claim under negligence?

Answer 18

Revill v Newbery
Pensioner sleeping in shed, shot criminal through the shed door to protect his property. Here owed a duty to the trespasser, but damages were reduced by ⅔ since Revill was a trespasser with criminal intentions. So this was a case governed by common law and not by statute.

Question 19

When will breach be proven for claims under the 1984 act?

Answer 19

It depends on the circumstances.
Look at nature of risk, why C is on the property, age and type of claimant, reasonableness and effectiveness of any exclusion notice or precautions taken.
The court will take factors like affordability into account when assessing the precautions taken.

Platt v Liverpool CC
Erected fence to keep children out, children crawled under and died. No breach since reasonable steps had been taken.

Donoghue v Folkstone Properties
Duty owed at certain times in the year. Owed in summer since reasonably foreseeable that people would go down the slipway. But not in winter.
C went down an icy slipway after midnight in midwinter! So no breach of duty.

Question 20

What are the possible defences to 1984 act claims?

Answer 20

Contributory negligence.
E.g. Revill v Newbury - damages were reduced by ⅔ since he was on the land trying to commit an illegal act.
A trespasser/non-visitor is more likely to be found contributory negligent than a visitor.
Age is a factor - a child is less likely to be contrib neg than an adult.

Implied consent (volenti non fit causa)
This is allowed as a partial defence. If C enters into property with knowledge/awareness of the risk then they are id to have freely accepted it.

Question 21

Will exclusion notices be effective under the 1984 act?

Answer 21

The 1984 act doesn’t state whether it is possible to exclude or limit liability or whether UCTA 1977 applies.
It is likely that an occupier will be able to exclude or limit his liability to a greater extent towards trespassers than visitors.

Question 22

For claims of occupier’s liability which test must you apply for causation?
What sort of injury can C claim for?

Answer 22

The state of the premises must cause damage to C
Use the ‘but for’ test here.
C may only claim for death, personal injury, or impairment of his mental condition.
Can’t claim for damage to his property! E.g. A dog being injured.
Must be injury to his person!