Occupier's liability- The 1957 Act.
s1(1) an occupier owes a duty of care to visitors in respect of dangers posed by the state of the premises or by things done or omitted to be done on them. 'An occupier is a person who exercises an element of control over the premises' (Wheat v Lacon 1966). There can be more than one occupier. This includes both physcial and legal control of the premises, Harris v Birkenhead Corporation (1976) council had legal possession but not physical possession. 'Premises' are 'any fixed or moveable structure, including any vessel,vehicle or aircraft' s1 (3) a OLA 1957. Includes ship in dry dock (London Graving Dock v Horton (1951), aircraft (Fosbroke-Hobbes v Airwork ltd (1937) and scaffolding and ladders (Wheeler v Copas (1981)Who is a visitor? Express permission- straight forward as long as they do not go beyond their permission. 'when you invite someone into your house to use the staircase you do not invite them to slide down the banisters' (The Calgarth 1927). Implied permission- e.g. delivery man entering the hall way, however implied permission is also subject to limitations so the delivery man has permission to enter the hallway but not to wander around upstairs in the occupants bedrooms. Harvey v Plymouth City Council (2010) any implied permission to enter must be exercised properly: the duty to ensure land is safe for visitors to enter is limited to the ordinary use of the land. If Occupier knows his land is used by trespassers but does nothing about it then this may amount to implied permission (Lowery v Walker 1911). Those with a right to enter- such as police, or those who enter premises pursuant to a contract are also deemed to be entitled to entry thus are regarded as visitors.
Duty of Care!
Occupier's liability Act 1957 s2(2) 'The common duty of care is... to take reasonable care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes of for which he is invited or permitted by the occupier to be there'.s2(1)OLA 1957 provides that an occupier may extend,restrict, modify or exclude his duty to visitors by agreement or otherwise. The Occupier is under 'no obligation to ensure the safety of visitors, but merely to take reasonable care to provide reasonable safety' (Bowen v National Trust 2011)
There are certain modifiers on the standard duty of care: Children: 2(3) a warns that children are less careful than adults, implying that greater care may be needed to protect them from harm. However case law has sought to balance responsibility between occupiers and parents. Phipps v Rochester Corporation (1955) parents should have primary responsibility for the safety and control of their children. However a duty will exist if land holds concealed dangers or allurements that tempt children into danger: Glasgow Corporation v Taylor (1922) -poison berries were concealed danger. The level of care expected will depend upon the nature of the risk and the age awareness of the child. For example in Titchener v BRB (1983) no duty was owed to a 15yr old boy who was struck by a train while walking on a railway.
Duty of Care continued..
Skilled visitors- the law expects skilled visitors whose expertise gives them greater awareness of risks of harm than the ordinary visitor to take precautions to protect themselves. s2 (3) b only applies where the injury sustained was related to their work and so, they should be exepected to protect themselves from such risks.
Warning signs: OLA 1957, s2 (4) a, where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe.
Following factors should be considered: How specific was the warning? the warning should be sufficiently precise so that the visitor knows what he is facing.
How obvious was the danger? Hidden dangers necessitate greater efforts to call attention to them than readily apparent risks (Staples v West Dorset District Council (1995) risk of wet algae on wall was obvious). Is the sign combined with other safety measures? The use of fencing or barriers emphasises the need for safety.
What sort of visitor is targeted? something more than a sign may be needed to protect children.
Liability for independent contractors!
s2(4)(b) OLA 1957 specifies 3 circumstances in which an occupier is liable for harm caused to a visitor by the work of an independent contractor:If it was unreasonable to entrust the work to an independant contractor i.e. if it was work that the occupier could, in all the circumstances, have carried out himself; If the occupier failed to take reasonable steps to ensure that the contractor was competent.If the occupier failed to take reasonable steps to ensure that the work was carried out to an appropriate standard. (Maguire v Sefton Metropolitan borough Council (2006) Consider the following:
What did the occupier do to check the competence of the contractor? Did he take up references? Did he check that the contractor was qualified or registered with a trade association? Did he ask to see examples of his work?
What did the occupier do to check the quality of the work? Did he make periodic inspections when the work was in progress? Did he ask for progress reports? Did he inspect the finished work? The occupier is only expected to do what is reasonable to check the quality of the work and this will vary according to the complexity and technical intricacy of the work. Low technical intricacy- the occupier will be expected to notice defects that pose a risk to visitors (Woodward v Mayor of Hastings 1945).High technical intricacy- the occupier will not be expected to appreciate the risks, that are only obvious to experts (Haseldine v Daw & Son ltd 1941).
Volenti non fit injuria: where the visitor consented to the risk of injury as he kenw of and understood and accepted the risk of injury: s2(5), OLA 1957.
Reliance on exclusion or limitation of liability by the use of notices.
Contributory negligence: Law reform (contributory negligence) Act 1945, damages awarded to the claimant will be reduced to the extent that the court accepts that he is responsible for his own injuries or loss.
Occupier's liability Act 1984!
A 'trespasser' is 'someone who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to' (Addie v Dumbreck 1929).
s1(3) OLA 1984 outlines three conditions that must be satisfied for a duty to arise:
The occupier must be aware of the danger or have reasonable grounds to believe that it exists (subjective);
He knows or has reasonable grounds to believe that a trespasser is in the vicinity of the danger (subjective).
Warning Signs and Risks willingly accepted!!
Warning signs: it is possible for an occupier to discharge their duty under the 1984 act by giving a warning or discouraging someone from entering the premises (for example, a locked gate). However unlike the 1957 act where the warning must be such that as to enable the visitor in all the circumstances to be reasonably safe, (s1 4 a) under the 1984 all the occupier needs to do is to take reasonable steps to bring the danger to the claimant's attention.
Risks willingly accepted by the non-visitor- No duty will be owed by the occupier in respect of risks willingly accepted by the non-visitor (s1(6)).