Occupier's Liability

Occupier's Liability

1. Non-Visitor

   • 1984 Act
     • British Railways Board v Herrington (1972) - boy through gap in fence; owner knows boy is there; owner doesn't protect boy; HELD limited duty of care "duty of ordinary humanity' 
     • General Ambit
       • s 1(1)(a) ...persons other than his visitors..suffering injury on the premises by reason of any danger due to the state...or to things done or omitted to be done on them
       • Persons covered
         • Act excludes people using public highways
       • 'Danger' in Act
         • Only danger to the premises
         • Revill v Newbury (1996) - Relevant action was the shooting, danger did not arise due to the state of the premises. Negligence NOT liability under the Act
       • Type of Damage
         • Only death or personal injury NOT property damage (ss 1(8) & 1(9)) 
     • Application
       • I. Does Duty Arise?
         • s 1(3) Occupier owes a duty to another if (a) aware of the danger or has reasonable grounds to believe it exists; (b) reasonable grounds that other may come into vicinity of danger; (c) reasonably be expected to offer other protection 
         • Swain v Puri (1996) - 9yo fell from roof and injured; occupier no reason to believe children would attempt to scale the roof; NOT liable
         • Keown v Coventry Healthcare NHS Trust (2006) - 11yo fell climbing fire escape on D's hospital grounds; 11yo should have known better, obvi risk, D not liable. WHAT IS THE DIFF b/w this and Swain?
       • II. What Does Duty Require?
         • s 1(4) ...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
         • Seriousness of danger
         • Type of Trespasser
           • Ratcliff v McConnell (1999) - 19yo broke into college pool and dove in & hit head; no duty to warn adults for obvi dangers esp. he wasn't there. ALSO volenti
           • Driver v Dover Roman Painted House (2014) - C waiting for taxi; went to wee; climbed over wall; fell down slope; no recollection of accident; unreliable witness; no duty
         • Warning
           • s 1(5) a duty...can be discharged by taking such steps as are reasonable
     • Defences
       • Contributory negligence; volenti; 
     • Discussion
       • Exclusion of Liability?
         • Disagreement b/w gov and law commission: argument that trespasser cannot be excluded b/c made no contract w/ occupier *Can't govern terms of admission if trespasser wasn't supposed to be there in the first place

2. Visitor

   • 1957 Act
     • s1(1) - dangers due to the state of the premises or to things done or omitted to be done on them
     • Occupier
       • Wheat v E Lacon & Co Ltd (1966) - Anyone w/ sufficient control (Denning)
       • Shtern v Cummings (2014) - Court drew distinction b/w the owner of the land and the company running hotel on the land; company held liable while owner was not responsible for daily activity. 
       • s1(2) anyone...who would at comm law be treated as an occupier  **The statute does not define who is an occupier
     • Premises
       • s 1(3)(a) - "any fixed or moving structure, including any vessel, vehicle or aircraft 
       • Wheeler v Copas (1981) - Farmer lent C a ladder; while held that ladder could be premises it was no longer occupied by farmer when he handed it over to C.
     • Visitor
       • s 1(2): 'Same as the persons who would at common law have been treated as...invitees or licensees' 
       • Express
       • Implied
         • Implied when: 1) public frequently uses; 2) occupier knows this; 3) occupier does nothing to stop this
         • Tomlison v Congleton (2004) - by swimming he exceeded terms upon which he was admitted; C cannot force duties onto D. 
       • Limited
         • R v Jones and Smith (1976) - Boy always allowed in fathers home; when he went to steal he exceeded permission and became a trespasser
       • Contractors
         • s 5(1):'Where person enter to use...in exercise of a right conferred by contract...it shall be the common duty of care'
         • Contractors treated differently; however, if there is no term guaranteeing safety of premses, Act will imply one
       • Not by Occupier
         • Depends on whether C though he was visitor. 
         • Ferguson v Welsh (1987) - Independent contractor not allowed to bring on subcontractor by D; subcontractor injured; C was lawful visitor b/c thought that D allowed it; C acting in good faith
       • Non visitor
         • User of public right of way; private right of way; exercising right to roam under Countryside and Rights of Way Act 2000; Trespassers
     • Common Duty of Care
       • s 2(2) ...such care as...is reasonable to see that the visitor will;l be reasonably safe in using the premises for which he is invited or permitted by the occupier
       • Children
         • s 2(3)(a) Occupier must be prepared for children to be less careful than adults
         • Glasgow Corporation v Taylor (1922) - tempting berries; D liable; children NOT treated as trespassers; 'doctrine of allurement' - Today children are trespassers
         • Phipps v Rochester Corporation (1955) - warning sign not enough; BUT parents primarily responsible; building site, D not liable. Perhaps diff in a park? 
         • Bourne Leisure Ltd v Marsden (2009) - The test: is it safe for a child accompanied by an adult? Child ran away in public park and climbed fence; D not liable
       • Special Risks
         • s 2(3)(b) Occupier may expect... person will appreciate any special risks ordinary incident to job 
         • Roles v Nathan (1963) - Two chimney sweepers; warned by expert; disregarded warning and died from the fumes; D not liable
       • Warnings
         • s 2(4)(a) - Does NOT automatically absolve occupier's liability. It is a question of fact and requires assessment of all the circumstances      
         • Darby v National Trust (2001) - C's husband drowned on D's property; risk with swimming obvious; no duty to warn for obvious risk
       • Independent Contractors
         • s 2(4)(b) - faulty execution of any work, occupier not answerable to more than he had acted reasonable in entrusting the work to independent contractor - PROTECT occupier against faulty work of contractors
         • Alexander v Freshwater Properties Limited (2012) - Finger caught in door --> Occupier WAS liable b/c (1) familiarity with property and should have known; (2) took part in decision to remove handle; JOINTLY liable
         • Gwilliam v West Hertfordshire Hospital NHS Trust (2003) - D hired trampoline; 63 year old injured; C sued D for hiring X when X had no insurance; Held: D's duty does not extend to checking whether X has insurance. Upheld in Naylor v Payling (2004). 
       • Objective Fact
         • West Sussex County Council v Pierce (2013) - C tried to punch brother; missed and punched water fountain; water fountain held objectively safe. 
         • Dufosse v Melbry Events Ltd (2011) Elf slipped on icicle; D liable; icicle could have been spotted and picked up *purely the duty of Santa and the Elfs*
         • Negligence v Act
           • Grimes v Hawkins (2011) - Common duty of care includes negligent omissions; NOT in this case; state of premises safe; diving unsafe; obvious risk (Tomlinson v Congleton applied)
     • Defences
       • Contributory Negligence
         • Law Reform (Contributory Negligence) Act 1945 - 1957 Act does no integrate the 1945 Act but cases do!
         • Stone v Taffe (1974) - C knew staircase was there and knew it would be dangerous in the dark; failed to switch on the torch.
       • Volenti Non Fit Injuria
         • s 2(5) Common duty of care does not impose on occupier...risks willingly accepted...by the visitor"
         • Simms v Leigh RFC (1969) - Rugby player suffered injury; knowingly and willingly accepted; D not liable
         • White v Blackmore (1972) - C at motor race, participated then watched; wheel got loose and C thrown in the air and killed; as spectator had not accepted risk; D not liable b/c exclusion of liability.
       • Exclusion of Liability
         • s 2(1) - Owes duty except in so far as he is free to and does extend, restrict, modify or exclude his duty to nay visitor or visitors by agreement or otherwise
         • Ashdown v Samuel Williams and Son Ltd (1957) - Industrial premises; notices saying entry at own risk; D not liable
         • White v Blackmore (1972) - Conditional license; gives license to visitor to enter his land ont eh condition that he is not liable for any damage; motor cycle spectator - D not liable.
         • UCTA
           • Attempts to exclude liability under OLA are caught by UCTA but only if the liability in business liability
           • Business liability
             • (1) liability for things done in the course of business (2) occupation of premises used for business. 
             • (1) Factory visited by children on school trip; NOT business liability; can exclude liability. (2) Child care company; children come for recreational BUT business purpose of the company, cannot exclude liability
           • Effects
             • s 2(1) clauses purporting to exclude negligence liability for death or personal injury are invalid s 2(2) exclusion of other loss only permitted if reasonable 
             • Monarch Airlines v Luton Airport Ltd (1998) - M's aircraft damages; L relied on exclusion clause; accepted b/c (1) accepted in market, (2) clause clear, (3) both parties could make insurance arrangements
     • Damages
       • Death; personal injury; property damages COVERED
       • s1(3)(b) - includes property damage even of persons who not themselves visitors
     • General
       • Activity
         • The source of damage must originate with the premises itself rather than with what someone does on it
         • Bottomly v Todmorden Cricket 2003) - D hired a showman for fireworks show; C got injured; D had a duty of care in selecting the showman; liability under negligence NOT the Act b/c activity NOT state of the premises
         • Yates v National Trust (2014) - C worked for tree surgeon; fell 50m; sued occupier of park; Held NOT b/c of premises but b/c of activity
       • Obvious Risks
         • Tomlinson v Congleton (2004) - Swimming in lake prohibited; D knew that visitors ignored notices not to swim; C broke neck; D not liable; not state of premises; C created own 'obvious' risk. 
         • Shorten v Grafton District Gulf Club (2000) - C golfer attacked by kangaroo; D knew about risk; D liable under the Act
         • s 2(1): Of occupier of premises owes the same duty of care to all this visitors