OCCUPIERS LIABILITY 1957

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INTRO OLA 1957

This is a tort affecting land.

It concerns the liability of the occupier of land for the c injury, loss or damage while on the occupies premises.

It has developed out of negligence.

The basis of liability ariss from the loss or injury being caused by the state of the premises.

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WHO IS AN OCCUPIER (potential d)

SECTION 1)2 of the 1957 Act states rules apply 'in consequence of a persons occupation or control of premises.

So the test is found in common law

WHEAT V E LACON

FACTS

A manager of a pub was given the right to let out rooms in his private quarters even though he had no proprietary interest in the property. Paying guest fell on some unlit stairs. HOL held that both manager and his employers could be occupiers.

Therefore there can be more than one occupier and depending on injury sustained it can differ as to which party may be held liable

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COLLIER V ANGLIAN WATER

FACTS

A promenade formed part of the sea defences for which the water authority was responsible. Local authority owned the land and was responsible for cleaning the prom.

OUTCOME

When c was injured as a result of its disrepair it was water authority which was liable, though tooth were occupiers.

All that is required for liability is that the d has sufficient control over the premises at the time the damage was caused to be responsible for it.

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HARRIS V BIRKENHEAD

FACTS

A four year old child had been injured in an empty house which had not yet been boarded up or secured in any way. Child fell from second floor window

OUTCOME

Even though the council had not yet taken obsession over the house they were liable since they had served notice of a compulsory purchase order and were effectively in legal control of the house

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DEFINITION OF PREMISES

Some reference in SECTION 1)3a which refers to a person having occupation or control of any 'fixed or moveable structure, including any vessel, vehicle or aircraft':

  • Ships in dry dock LONDON GRAVING DOCK V HORTON
  • Vehicles HARTWELL V GRAYSON
  • Aircraft FOSBROKE HOBBS V AIRWORK
  • Lifts HASELDINE V DAW
  • Even a ladder WHEELER V COPAS
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LIABILITY TO LAWFUL VISITORS 1957 ACT

INVITEES

have permission to enter, and whose entry is of material interest of the occupier, example friends making a social call

LICENCEE

whose entry is to the material interest of the occupier example customers. Visitors under an implied licence will need to prove that the conduct of the occupier amounted to a grant of a licence.

LOWERY V WALKER

Certan members of the public used a short cut across D land for many years. While D opposed this he took no legal steps to stop it. He then released a wild horse into field which savaged C. He was liable Becuase the C by the D actions had a licence

IMPLIED LICENCE

Example painter

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TRESPASSERS AND 1957 ACT

NO duty owed to trespassers.

Other categories of entrants are also not covered:

  • Those using a private right of way
  • Those entering under an access agreement under the National parks and access to countryside act 1949
  • Tose using a public right of way, these will fall under common law with the tortfeaser being liable for misfeasance but non feasance
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SCOPE OF OL UNDER 1957 ACT

Set out in SECTION 2)1, 'an occupier owes the same duty, a common duty of care to all his visitors expect insofar as he is free to do and does extend, restrict, modify or exclude his duty to any visitors by agreement or otherwise'

The nature of the duty is found in SECTION 2)2 which is, 'take such care as in all circumstances... Is reasonable to see that the visitor will be reasonably safe for the purpose for which he is invited to be there'

3 KEY POINTS:

  • the standard of the reasonable man is generally applied. Occupier has to guard against reasonably foreseeable
  • the duty only applies as long as the visitor is carrying out activities that ae authorised within the terms of the visit
  • duty is to keep the visitor safe, not necessarily to maintain safe premises
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FRYER V PEARSON

FACTS

A family visitor was injured by a needle whilst kneeling on the floor, court held occupiers had not breached duty, as thee was nothing to suggest they knew of the needle being there

The court distinguished WARD V TESO where a greater duty may be owed by a shopkeeper towards customers when the C slipped on spilled yoghurt

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LIABILITY TO CHILDREN

SECTION 2)3 the occupier 'must be prepared for children to be less careful than adults' and as a result 'the premises must be reasonably safe for a child of that age'

When dealing with children standard of care applied is measured subjectively

MOLONEY V LAMBETH

4 yr old fell through a gap in railings guarding a stair well and was injured. An adult could not have fallen through but the child could so the occupier was liable

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GLASGOW CORPORATION V TAYLOR

An occupier must do nothing to attract a child to the danger and must guard against any kind of 'allurement' which places a child at risk of harm

FACTS

A 7 yr old ate poisonous berries and died. The shrub on which the berries grew were not fenced off in any way and the occupier should have expected a child to be attracted to the berries. Liability was imposed

LIDDLE V YORKSHIRE CC

FACTS

A child was injured jumping off a soil bank while showing off to friends. The D was not liable since the child had been warned away on numerous previous occasions.

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NO LIABILITY IF DAMAGE IS UNFORESEEABLE

JOLLEY V LONDON BOROUGH OF SUTTON

FACTS

The council failed to move an abandoned boat for two years, children regularly played in the boat and it was a danger. When two boys jacked the boat up to repair it the boat fell on him injuring him.

OUTCOME

In COA action failed because while the boat was an obvious allurement the course of action taken by the boys was not foreseeable. HOL reversed this

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PHIPPS V ROCHESTER CORPORATION

FACTS

5yr old was injured when it fell down a tech dug by the D where the child frequently played.

OUTCOME

The D was not liable because the courts concluded that the parents should have had the child under proper control

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TRADE OR CALLING ON THE PREMISES

SECTION 2)3b an occupier is entitled to expect tradesmen to guard against risks they should know about and will not be liable if they fail to do this

ROLES V NATHAN

The COA reused to impose liability on occupiers when chimney sweeps died after inhaling carbon monoxide fumes while cleaning flues in an industrial chimney. The sweeps should have accepted the advice of the occupiers to complete the work with the boilers off.

SALMON V SEAFARERS RESTAURANTS

Owners of a chip shop were liable for injuries to a fireman which were unavoidable because of the character of the fire

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LIABILITY FOR INDEPENDENT CONTRACTORS

SECTION 2)4 the occupier is not liable for 'damage caused to a visitor by danger due to the faulty execution of any work or construction, maintainable or repair by an independent contractor employed by the occupier'.

3 requirements must apply:

  • It must be reasonable for the occupier to have entrusted the work of the independent contractor
  • The contractor hired must be competent to carry out the task
  • If possible the occupier must check the work
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OCCUPIERS DUTY

To ensure that the contractor is insured so that he may stand the loss if found liable, to ensure a competent contractor is chosen, therefore it can be assumed a competent contractor would not engage in work without public liability insurance

GWILLIAM V WEST HERTFORDSHIRE NHS TRUST

FACTS

The trust hired a splay wall from contractors for a fund raising event. The C was injured because the contraption was negligently assembled by the contractors. The trust had insurance but it ran out four days before the accident

OUTCOME

The court held that there was a duty to check insurance but the trust had discharged it in this case.

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AVOIDING LIABILITY 1957 ACT

WARNINGS

SECTION 2)4a a warning will not remove liability from the occupiers unless 'in all circumstances it was enough to enable the visitor to be reasonably safe.

RAE V MARS

A warning was ineffective in respect of a deep pit inside the entrance of a dark shed, occupier was liable

BEATON V DEVON COUNTY COUNCIL

C was injured while riding his cycle through a tunnel it was well lit and in good condition. 2 Gullies that ran through it were well known. The court held that the occupier had done everything practical to keep the visitor safe

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EXCLUSION CLAUSES

SECTION 2)1 the occupier has the right to exclude liability' by agreement or otherwise', therefore it can be included as a term in a contractual license

ASHDOWN V SAMUEL WILLIAM

The C was injured by the negligent shunting of railway trucks while n the occupiers land. She was unable to recover for injuries sustained in the shunting yard because notices excluding liability were sufficiently brought to her attention

The clauses however are subject to restrictions:

  • They will be unavailable in the case of persons entering under a legal right
  • They will not apply in the case of strangers (not have had chance to agree to exclusion)
  • Probably fail against children who may be unable to read it or understand it
  • Not be allowed in respect of death or PI caused by the occupiers negligence, this is prevented in section 2)1
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GENERAL DEFENCES

CONTRIBUTORY NEGLIGENCE under the Law Reform Act, this reduces damages awarded

CONSENT SECTION 2)5, the occupier has no liability to a visitor in respect of risks willingly accepted by his visitor

SIMMS V LEIGH RFC

No liability to a player when injuries sustained were in he bunds of the game

Must accept the risk as shown in WHITE V BLACKMORE

General knowledge that jalopy racing was dangerous did not mean that the C had accepted inadequate safety arrangements

If C has no choice but to accept the risk consent won't stand

BURNETT V BRTISH WATERWAYS BOARD

A C entering the D dry dock on a barge had no choice but to be there, so consent was unavailable as a defence

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