Flashcards
Occupiers Liability -- Part 1
Cards in this deck (50)
- 1Contractual entrant (common law)People who have the right to enter the premises based on a contract between them, and the occupier/a 3rd party
Extent of duty depended on express or implied terms in the contract - 2Invitees (common law)Permitted to enter land in furtherance of occupiers purposes
E.g.: Going into a shop
Duty to protect from an unusual danger - 3Licensees (common law)People permitted to enter land but entirely for their own purposes
Duty to warn of any concealed dangers or traps of which the occupier knew - 4Trespassers (common law)Duty to refrain from creating a danger intentionally or through a reckless disregard of the trespassers presence
- 5Gallagher v HumphreyChain on D's crane being used to lower goods gave way
P was there as a licensee
Ordinary principles of negligence applied - 6Slater v Cray Cross Co LtdP lawfully on D's land, was walking through a narrow tunnel through which there was a railway line -- got hit by train being negligently driven by D's employee
D liable on ordinary Donoghue v Stevenson case law - 7Occupiers Liability Act 1957, s.1(1)occupier owes to a visitor in respective of ‘dangers due to the state of the premises or through things done or omitted to be done on them.'
addresses state of the premises that appear to be safe but are not, such as rotten floor boards that look okay
static condition of the premises - 8Tomlinson v Congleton BCLake formed by disused sand in extraction put. Council put up notices warning people not to swim in the water, but locals frequently swam anyway. C ran into water, dived & hit his head on the sandy bottom of the lake
Council not liable
'things done or omitted to be done on the premises' means activities or lack of precautions which cause risk -- such as allowing speed boats around an area with swimmers
There was no concealed danger, so no risk arose from the state of the premises (1984 Act, s.1(1)a)
Risk arose from C's actions - 9Lear v HicksteadHickstead owned horse jumping grounds. Lear instructed on where to park car by security team when he arrived & had horse box on the back of his car. Comes back to find it had been tampered with, tries to fix it and becomes injured when it falls on him
Parking structure created occupancy liability under the 1957 act
However, D's not liable b/c car was properly parked (wasn't causing an obstruction) & horse pull was tampered with by youths trying to find a shortcut through
Parking system was reasonably managed to avoid obstructions
So whilst D's owed C a duty of care, they hadn't actually breached that duty - 10Occupiers Liability Act 1957, s.1(2)but they shall not alter the rules of the common law as to the persons on whom a duty is so imposed or to whom it is owed; and accordingly for the purpose of the rules so enacted the persons who are to be treated as an occupier and as his visitors are the same (subject to subsection (4) of this section) as the persons who would at common law be treated as an occupier and as his invitees or licensees.”
Rules of common law continue to apply - 11Occupiers Liability Act 1957, s.1(3)the obligations of a person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft;
Premises was given a broad interpretation -- extended to ships, piers, etc. - 12Wheat v E Lacon & Co LtdLacon was firm of brewers who owned a house managed by Mr x. Bar downstairs & living accommodation upstairs which could be rented out
D's not liable
Test of control: An occupier is anyone who has a sufficient degree of control to the extent they realize that a failure on their part might lead to injury to a person coming lawfully there
Occupation also need not be exclusive, 2 or more persons can have sufficient degrees of control - 13Wheat v E Lacon & Co Further CommentsWhen a premises are let by a landlord to a tenant on a proper tenancy, the landlord ceases to be an occupier
But when a landlord lets out flats to tenants within a building, they are responsible for common parts to be used by all tenants -- such as lift, roof, hallways etc. - 14Ferguson v WelshC hired for the demolition of a building & invites Welsh brothers as sub-contractors. He becomes paralyzed when standing on a wall and it falls down
D's not liable b/c injury was not as a result of the state of the premises, but of his actions on the premises. Only Welsh brothers were liable
A major contractor with a significant degree of control over the site may be classed as an occupier
Quick visit by electrician fixing something in your house does not make them an occupier - 15Robson v HalletPolice sergeant was in a private house asking questions with permission of owners son. Owner asked him to leave, he immediately turned around & owners son jumped on him.
D liable for assaulting a police officer in the execution of his duty. Police officer had reasonable time to leave premises so any force against him was unlawful
Occupier must give entrant reasonable time to leave - 16Cooke v Midland Great Western RailwayRailway company had a turntable on their land & knew children frequently played on it -- there was a gap in the hedge leading to the turntable & company did nothing to block it. Child's leg was crushed in turntable
Railway company liable b/c there was sufficient evidence to conclude an implied license - 17Edwards v Railway ExecutiveD not liable b/c repeated trespass does not grant an implied license
C's child broke through fence to recreation ground. D aware that children frequently snuck in & had taken steps to mend the gap. Child goes against fathers orders and sneaks through gap - 18Cf Lowery v WalkerMr. Walker owned land near railway station which people would often cross through. He tried to warn them off, but didn't get an injunction. He eventually released a savage horse into the field w/no warning & horse attacked C
Mr. Walker liable b/c C had an implied license
Courts today would likely not take such a generous view - 19The CarlgrathWhen you invite a person into your house to use the staircase, you do not invite him to slide down the banisters
- 20Harvey v Plymouth City Council3 teenagers in taxi back from a night out, realize they can't pay for the taxi and run out. C runs onto council land, falls into parking lot. Sues council for not putting up a fence
Council not liable, there was implied permission for general activity, but not for C running away - 21Occupiers Liability Act 1957, s.2(6)For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose whether they in fact have his permission or not
- 22Greenhalgh v British Railway BoardPerson exercising a public right is not a visitor for the purposes of the 1957 Act
- 23Holden v WhitePerson exercising a private right is not a visitor for the purposes of the 1957 Act
- 24AB v Pro-nation LtdD held liable where customer fell down staircase w/inadequate handrails
Due to it being a place where people consumed alcohol, there was an obvious increased risk of visitors who had been drinking falling down, so having no handrail was quite unreasonable - 25Risk v Rose-Bruford CollegeStudent suffered catastrophic injuries at end of year party after diving into inflatable pool & hitting his head
College not liable because this was an obvious risk - 26English Heritage v TaylorC attempted to walk down a steep slope, instead of sliding down it, lost his footing and was propelled to the bottom & over into the mat, suffering head injuries
Liability b/c sheer drop was concealed -- danger was concealed -- they should've put up a notice warning of the danger below - 27Hall v Holker Estate CoC injured playing football at park when a tubular frame fell on him causing nasty injuries to his jaws + teeth
Frame wasn't pegged down at the time of the accident
Court ruled there should've been daily inspections to ensure they were b/c d if frame wasn't pegged down, frame falling was a great risk - 28Tedstone v Bourne Leisure LtdTrips on pool of water near jacuzzi in hotel + spa, but no evidence of water collecting at that spot before
having inspection regime in place wouldn't have caught that spill
D's not liable for the fall - 29Need where appropriate for risk assessment in advanceLiability will only arise if it can be shown as a matter of causation that a properly conducted risk assessment would have changed the outcome
In Risk v Rose Bruford College -- a risk assessment would've proposed a supervision rota and it couldn't be said w/certainty that this would've prevented the accident - 30Pollock v CahillKnew she'd be visited by Mr. Pollock who was blind, but she left his window open & the sill was quite low
Pollock fell out of the window mistakenly when trying to go to the bathroom at night
D liable -- she should've taken steps to prevent this harm - 31S.2(3)(a)"an occupier must be prepared for children to be less careful than adults;”
- 32Moloney v Lambeth BC4-year old fell through staircase in block of flats operated by the council
Adult wouldn't have been able to fit through that space
Council liable b/c they knew there would be small children in the flats
Occupiers must be aware that there may be dangers that would be obvious to an adult, but not to a child -- they may be particularly alluring to a child - 33Glasgow Corp. v Taylor7-year old boy died after eating poisonous berry from a bush in a park run by Glasgow corp.
The berries looked like large blackberries/cherries
Where its accepted that a child would come onto a premises, it is expected that they would come with an adult & the younger the child is, the more reasonable that assumption is on the part of the occupier - 34Phipps v Rochester Corp.C's father left her and a friend at picnic at the bottom of a slope
after the picnic, children walked to the top, slid down slope, lost control and C badly injured
council not liable b/c slope was an a familiar & obvious danger to an adult, so they were entitled to assume that children's parents would warn as to the dangers of the slope
NB: Council subsequently putting up a fence after this case was not evidence that it was a breach of duty, first accident may make the risk really clear causing occupier to take precautions that are even more demanding than reasonableness requires - 35s.2(3)(b) -- expertsThe circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor
When you have a special person like a construction worker, you expect them to take care of themselves - 36Christmas v General Cleaning ContractorsC was window cleaner for D's club & his method of cleaning was to climb out of the window & stand on the window sill
D's not liable, risk of window moving was a recognizable danger for an expert in cleaning windows - 37S.2(4)(a) -- warningsWhen determining if an occupier has discharged their common duty of care to the visitor
If damage is caused to the visitor, the occupier is only absolved of liability if the warning can be said to be enough in all circumstances to enable the visitor to be reasonably safe - 38Roles v NathanWarnings example
Suppose for instance that the only way of getting into & out of a premises was a footbridge over a stream which was rotten and dangerous. s.2(4) makes it clear that occupier cannot escape liability by simply putting up a sign saying 'the bridge is dangerous' even though there is no other way for the visitor to get in or out
However, if there was a safe footbridge 100m up the path & occupier put up a sign saying 'this bridge is dangerous, use the one 100m up ahead' they could escape liability
Such a warning would be sufficient b/c it enables the visitor to be reasonably safe - 39S.2(4)(b) independent contractorsWhen determining if an occupier has discharged the common duty of care to a visitor:
If damage occurs due to the work of an independent contractor, occupier isn't liable provided they had taken necessary steps to ensure the contractor was competent & the work was properly done - 40Haseldine v DawLift crashed
Occupier not liable b/c they had hired competent firm of engineers & lift was regularly serviced - 41Bottomley v Todmorden Cricket ClubClub engaged 2 stunt men to perform at event when a tube w/gun powder exploded during the show
Club liable for not taking reasonable care in selecting these performers -- if they had checked well they would've realized that these performers were largely incompetent & had no safety measures in place
The more dangerous the task to be performed by the contractor, the greater the care the occupier will have to take in selecting the contractor - 42Gwilliam v West Hertfordshire Hospital NHS Trust63-year old injured on splat wall during a fair due to the events companies negligence. Events companies insurance had expired, so there was nothing to cover the incident
Hospital that hired them wasn't liable b/c they had asked if the events people had insurance and gotten reply of 'yes' in good faith -- b/c insurance guys didn't know their insurance was expiring so soon
No duty to inspect insurance documents to ensure that the coverage was accurate - 43Woodward v Mayor of HastingsChild slips on snow on a step that hadn't been properly cleared by a cleaner
Occupier still liable for inadequate supervision -- they should've gone back to check that the job was done properly - 44S.5 -- contractual entrants -- implied terms in contractsWhen a person enters/uses a premises through rights conferred in a contract, the occupiers duty will depend on a term to be implied in the contract -- the implied term has to be the common duty of care
- 45Maguire v SephtonPerson injured on exercise machine
D's not liable b/c their only implied duty was to take reasonable steps to see that the machine was safe
Council had taken reasonable steps the week before by hiring professional team to inspect & fix the machines - 46s.3(1) -- Contracts w/3rd partyWhere an occupier is bound by the contract to permit persons that are strangers to the contract, they can't restrict/exclud the duty of care they owe
Still have to perform their obligations under the contract
If contract requires higher level of obligation then occupier is required to go to the higher level of obligation - 47s.2(1) -- Occupier excluding/modifying dutyIf occupier is lawfully able toe exclude duty under the act, they will not be liable even if they are careless
This can be done through express terms in a contract or by putting up a sign where the occupier can be said to have taken reasonable steps to bring the entrants attention before the contract is entered - 48Ashdown v Samuel Williams & SonHappened before 1984 Act -- criticized, but never overruled -- basically overtaken by 1984 Act
Given that they can prohibit someone from coming onto the land, they could permit someone to enter, subject to the condition that they could not sue for any negligence
C injured by railway lines being carelessly shanted on D's land, but D had posted notice that everyone on that land was there at their own risk & accepted no liability & had taken reasonable steps to bring these notices to any entrants attention - 49Volenti non fit injuria -- defence -- s.2(5) OLA 1957'to a willing person, injury is not done'
- 50Geary v J D WetherspoonVolenti non fit injuria applied
Mrs. Geary drinking w/collegaues at place owned by J D, used to be gentleman's club so had a grand staircase w/low railings
She wasn't drunk but decided to slide down railings & seriously injured herself
Held D not liable, because she admitted she knew the danger associated w/what she was about to do, and decided to do it anyway
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- Flashcards on Occupiers Liability -- Part 1, created by Kui Kariuki on 19/04/2018.
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