Occupier's Liability

Occupier's Liability

Act 1957

Who is the occupier?

The 1957 Act covers lawful visitors.

Occupier is determined in Wheat v E Lacon & Co

A manager of pub given right to let out rooms & paying guest fell on unlit stairs. HL held both manager and employees could be occupiers.

So there can be more than one occupier - gives C greater choice of who to bring action against

Collier v Anglican Water Authority

A promenade formed part of sea defences for which water authority responsible for. Local authority owned land & repsonsible for cleaning it. When C injured due to disrepair, water authority liable rather than local authority.

Occupation not reliant on ownership, having control over premises is sufficient

Definition of

Premises

s1(3)(a) - any fixed or moveable structure includign any vessel, vehicle and aircraft

Common law definitions:

London Graving Dock v Horton - ships in a dry dock

Hartwell v Grayson - vehicles

Fosbroke-Hobbs v Airwork Ltd - aircraft

Haseldine v Daw & Son - lifts

Wheeler v Copas - a ladder

Liability to

Lawful Visitors

Under s1(2) lawful visitors include:

Invitees - people who have permission to enter AND whose entry is in material interest of the occupier e.g. friends on social call, postman

Licensees - people whose entry is of material interst of occupier e.g. customers

Implied License - as with licensees but need to prove conduct of occupier granted license, can also be created under contractual agreement e.g. painter (terms of contract determine extent of duty)

Legal Right to Enter - don't require permission e.g. meter reader, police officers

Duty not

owed to...

No duty owed under 1957 Act to trespassers OR:

Those using a private right of way

Those entering under an access agreement

Those using a public right of way (excluded by both Acts)

Scope of

Liability

s2(1) - occupier owes same duty to all visitors except insofar as he is free to do so and does extend, restrict, modify or exclude his duty to any visitors by agreement or otherwise

s2(2) - duty is to take such care as in all circumstances to what is reasonable to see that the visitor will be reasonably safe for the purpose of their visit

Standard of care is of the reasonable man - occupier merely obliged to guard against reasonably forseeable

Duty under 1957 Act only applies as long as visitor is carrying out activities authorised within terms of visit, if not they become trespasser

Duty is to keep visitor safe not maintain safe premises

Scope of

Liability

Fryer v Pearson

Family visitor injued by needle when kneeling on floor. Court held the occupiers had not breached duty as there was nothing to suggest they knew the needle was on the floor or had created the danger.

Ward v Tesco Stores

A customer slipped on spilled yoghurt. Court held that greater duty is owed by a shopkeeper to customers.

Liability to

Children

Under s2(3) the occupier must be prepared for children to be less careful than adults and so the premises must be reasonably safe for a child of that age

AO2 - the standard of care is measured subjectively for children

Moloney v Lambeth

4 year old fell through gap in railings guarding a stairwell and was injured. An adult couldn't have fallen through the gap. The occupier was liable as the premises must be safe for children.

Children do not appreciate risks as adults do.

Glasgow Corporation v Taylor

A 7 year old ate poisonous berries and died. The shrub was not fenced off in anyway - the occupier should have expected that a young child might be attracted to the berries and so was liable.

Liability to 

Children

The existance of an allurement on its own is not sufficient grounds for liability

Liddle v Yorkshire CC

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

If danger is not forseeable, there will be no liability

Jolley v London Borough of Sutton

Children regularly played in an abandoned boat. When 2 young boys jacked the boat up to repair it, the boat fell on one injuring him. CA held that whilst the boat was an obvious allurement, the action taken by the boys was unforseeable and so there was no liability.  HL reversed this stating that the broad description of the risk as being that children would 'meddle with the boat at some risk of physical injury' 

Liability to

 Children

Courts will sometimes take the view that very young children should be supervised by their parents/an adult, in which case the occupier will not be liable.

Phillips v Rochester

A 5 year old child was injured when it fell down a trench dug by D where the child frequently played. D was not liable as the court concluded that the parents should have had the child under proper control.

People Carrying

 out a Trade

Under s2(3)(b) the occupier is entitled to expect tradesmen to guard against risks they should know about, and won't be liable if they fail to do so.

Roles v Nathan

CA refused to impose liability on occupiers when chimney sweeps died after inhaling carbon monoxide fumes. The sweeps should have accepted advice of occupiers to complete work with boilers off.

However, this depends on whether the normal safeguards could have averted the loss or injury

Salmon v Seafarers Restaurants

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

Liability for

Independant

Contractors

Under s2(4) the occupier is not liable for any damage caused by danger due to faulty execution of any work or construction, maintenance or repair by an independant contractor.

Reputable contractors will be covered by own insurance so c will still get compensation.

3 requirements:

Must be reasonable for occupier to have entrusted contractor (Haseldine)

Contractor hired must be competent to carry out task (Ferguson v Welsh)

If possible, occupier must check work - the more technical/expert the work, the less reasonable it is to impose the obligation (Woodward v Hastings)

Liability for

Independant

Contractors

Haseldine v Daw & Sons

Occupier not liable for negligent repair of lift - highly specialist skill

Ferguson v Welsh

Demolition contractors hired by local authority employed C. When he was injured due to unsafe working systems, the local authority was liable.

Woodward v Hastings

Occupiers liable when child was injured on school steps which were negligently left icy after cleaning off snow. Danger should have been obvious to occupiers.

Liability for

Independant

Contractors

Occupier has a duty to ensure the contractor is insured so he may stand the loss if found liable.

Gwilliam v West Hertfordshire NHS Trust

Trsust hired splat wall from contractors for fund-raising and C was injured because it was negligently assembled. Trust has insurance that ran out 4 days before. Court held there was a duty to check insurance.

Obligation may not apply where there are other means of assessing the independant contractors competence.

Naylor v Payling

C negligently thrown out of nightclub by bouncer and injured. C argued club failed to check whether independant contractor who hired bounce had insurance but CA held that the club had complied with a local scheme supported by local authority and police for whether bouncers suitable for work.

Avoiding

Liability

S2(4)a - Warnings - will remove liability where in all circumstances it was enough to enable the visitor to be reasonably safe. What is sufficient is decided in each case.

Rae v Mars

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

Beaton v Devon CC

C injured when riding bike through tunnel which was well lit and in good condition with 2 gullies that were well known running through it. The court held the occupier had done everything practical to keep the visitor safe.

Avoiding

Liability

S2(1) - Exclusion Clauses - occupier has the right to exclude liability 'by agreement or otherwise'

Ashdown v Samuel William & Sons

C was injured by negligent shunting of railway trucks while on the occupier's land and was unable to recover for injuries sustained in the shunting yard because notices excluding liability were sufficiently brough to her attention and she wasn o more than a contractual licensee when she entered.

Use of exclusion clauses subject to restrictions including:

• unavailable where persons entering under legal right
• probably fail against children who may not be able to fully understand
• Won't apply in the case of strangers

Avoiding

Liability

General Defences

Two possibilities: contributory negligence & volenti non fit injuria (consent)

Risk must be fully understood by visitor - Simms v Leigh RFC

No liability to rugby player when injury was sustained withing normal game rules

Mere knowledge of risk insufficient - White v Blackmore

General knowledge that 'Jalopy Racing' was dangerous didn't mean c had accepted inadequate safety arrangements.

If c had no choice, their consent cannot be used as defence - Burnett v British Waterways

C entering D's dry dock on a barge had no choice but to be there, so consent was unavailable.

Liability

 for Trespassers

Occupier's Liability Act 1984 introduced to provide limited duty of care towards trespassers

Bird v Holbreck

Whilst this case didn't create any duty to protect a trespasser, it finally outlawed the use of mantraps

An occupier is still entitled to act reasonably to protect their property

Clayton v Deane

This case accepted an occupier's entitlement to use reasonabel deterrents to keep trespassers out - in this case broken glass on top of a wall, as long as it was reasonably visible.

Liability for

Trespassers

Common law could be particularly harsh on child trespassers

Addie v Dumbreck

Children frequently played near dangerous machinery and when one was injured there was no liability since he was a trespasser

The law has since changed to take into account the difficulties in getting children to appreciate danger.

BRB v Herrington

6 year old badly burnt on electrified railway. HL overruled Addie to establish a limited duty owed when occupier knew of danger and likelihood of trespass.

 Liability for

Trespassers

The occupier will only owe a duty under s1(3) if they

a) are aware of the danger or have reasonable grounds to believe it exists

b) knows or believes the other is in the vicinity of the danger

c) the risk is one against which he may be expected to offer some protection

Tomlinson v Congleton Borough Council

Warning signs prohibited swimming/diving in a lake. C dived in and suffered paralysis. In the first instance the council was liable BUT in CA the council were not liable as the injury was not due to state of premises.

Liability for

Trespassers

Rhind v Astubury Water Park

C ignored notice saying 'Private Property, Strictly No Swimming' and was injured by objects below surface when he jumped in. Occupier had no reason to know of the objects so there was no liability.

Westwood v Post Office

A notice saying 'Only Authorised Attendant Permitted' placed on door of motor room was held to be sufficient warning for an intelligent adult.

Ratcliffe v McConnell

A warning notice was placed at shallow end of pool warning against diving and the pool was always locked after hours. C knew the entry was prohibited and was a trespasser. Claim unsuccessful as occupiers had done everything reasonable to prevent trespassers and injurty due to own reckless actions.