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Tort (6) - Occupiers' Liability:

Will Dillon Tort Law English 74 cards

Cards in this deck (74)

  1. 1Occupiers' LiabilityAn occupier of a premises may be liable to a claimant who suffers personal injury or property damage whilst on the premises due to the premises’ defective or dangerous condition.
  2. 2The claimant must prove: - Existence of duty of care - There was a breach of that duty - Causation - The loss suffered was not too remote. THE ABOVE MUST BE DONE BEFORE EXAMINING OCCUPIERS LIABILITY IN DETAIL!In Occupiers' liability the question of whether or not a defendant owes a duty of care, and the standard of care required of him or her is answered by reference to two statutes:
    1) - The occupiers’ Liability Act 1957 (regulates the duties owed by an occupier to “visitors” to his or her premises)
    2) - The Occupiers’ Liability Act 1984 (regulates duties owed by an occupier to “others” who enter his or her premises. Usually these “others’ will be trespassers.
  3. 3The occupiers’ Liability Act 1957 Summary: - States an occupier owes a single duty to all LAWFUL visitors, irrespective of their purpose in entering the premises. - Section 2(2) of the act states: “An occupier of premises owes the same duty, the ‘common duty of care’, to all his visitors”.The scope of the occupiers’ Liability Act 1957:
    - The act covers both personal injuries caused to a visitor and damaged to his or her property.
    - The act also applies to damage to property that is lawfully on the premises, even where that property does not belong to the visitor. (If a tile falls from the roof and damages a visitor’s borrowed car parked on the premises, the owner of the car may sue).
  4. 4The scope of the occupiers’ Liability Act 1957: - The act does NOT apply to property which is outside the boundaries of the premises. - Mocatta J in AMF International Ltd v Magnet Bowling Ltd remarked that, where property was damaged, there was no reason in principle why consequential economic loss should not be recoverable.The scope of the occupiers’ Liability Act 1957:
    Liability under the act may be limited by an express term of a contract, or by a notice given to visitors:
    - The act allows an occupier to limit their liability to visitors.
    - They can display a notice on the premises, or where visitors enter under a contract (e.g. hotel), by including a term which sets the standard of care he or she owes.
  5. 5The scope of the occupiers’ Liability Act 1957: The act is thought to apply only to the “occupancy duty”: - It is unlikely that every careless act or omission which causes loss to a visitor on an occupiers’ premises will give rise to a claim under the act.The scope of the occupiers’ Liability Act 1957:
    - If a visitor is walking up the occupiers’ drive and is hit by a carelessly driven car, they will not sue under the act, but rather under ordinary common law negligence. This is because the duty that he or she is owed has nothing to do with the fact that the accident happened on the occupiers’ premises. Situations like these were called the ‘activity duty’ under the old common law
  6. 6The scope of the occupiers’ Liability Act 1957: - Occupancy duty was established by the old common law, in situations where the claimant suffered loss because he or she fell foul in some defect in, or dangerous object on, the premises (tripping over loose floorboard, or being electrocuted by badly wired plug) occupancy duty applies. Occupancy duty arose where the claimant’s loss could be said to result from the ‘state of the premises’.The scope of the occupiers’ Liability Act 1957:
    - It is unclear whether the distinction between ‘activity duty’ and ‘occupancy duty’ has survived the 1957 act. The wording of the act does not make it clear whether it regulates only occupancy duty, or whether it also regulates activity duty. There are two relevant sections of the act for this, each of which appears to give a conflicting answer to the question.
  7. 7The scope of the occupiers’ Liability Act 1957: - Section 1(2) provides that the act shall “regulate the nature of the duty imposed by law in consequence of a person’s occupation or control of premises.’” This implies that the act only regulates occupancy duty. - Section 1(1) on the other hand provides that the act shall apply “in respect of dangers due to the state of the premises or to things done or omitted to be done on them.” This implies that the act also regulates the activity duty.The scope of the occupiers’ Liability Act 1957:
    - Most academic commentary suggests the 1957 act only applies to occupancy duty.
    - However, it appears that where an activity on the premises gives rise to a continuing source of danger (motor racing for example), the act may apply to the activity duty.
  8. 8An “OCCUPIER” of “PREMISES” owes a “COMMON DUTY OF CARE” to all his “VISITORS”"Occupier":
    - the courts have taken a broad approach, holding that a person will be an occupier if he or she has a ‘sufficient degree of control over the premises’.
    - A person need not have a legal estate in the land to be considered an occupier, nor need they have a right to exclusive possession (not necessary to be the sole owner).
  9. 9"Occupier" - Wheat v E Lacon & Co: - The defendants, a brewery, owned a public house. They allowed the publican (pub manager) and his wife, Mr and Mrs Richardson, to live above the pub in upstairs accommodation, not as tenants but as mere licensees (merely given permission to be on the premises). The brewery gave Mrs Richardson permission to take in paying guests in part of the upstairs accommodation, access to which was gained by an outside staircase. The staircase was dangerous because its handrail did not go all the way to the bottom, and it was also unlit. One evening, the claimant’s husband, who was a paying guest, fell down the staircase and killed."Occupier" - Wheat v E Lacon & Co:
    - The claimant sued the brewery under the 1957 Act, and the question arose whether the brewery were occupiers of the private part of the building. House of lords held that the brewer had retained sufficient control over the upstairs part of the premises to be regarded as occupiers. The brewery had retained the right to access the upstairs accommodation despite giving a licence to Mr and Mrs Richardson. Their lordships found that the brewery AND the publican Mr Richardson AND his wife Mrs Richardson were all occupiers under the act. The standard of care required of each however was defined by the extent to which each had control over the premises. On the facts neither the Richardson’s nor the brewery had fallen below the standard of care. The short handrail did not itself make the stairs unreasonably hazardous, and they were not responsible for a stranger removing the light bulb.
  10. 10"Occupier" - White v E Lacon Co Ltd: Two important points emerge from this case: 1) There can be more than one occupier of a premises"Occupier" - White v E Lacon Co Ltd:
    Two important points emerge from this case:
    2) Where the owner of premises licenses others to occupy those premises, but retains the right to enter the premises, they remain an occupier for the purposes of the act. This is to be contrasted with a tenancy where the owner grants exclusive possession of the premises. Here, the landlord will not normally be considered an occupier.
  11. 11"Occupier": - In all cases the key question is not whether a person is in ACTUAL occupation of the premises, but whether he or she exercises CONTROL over the premises."Occupier" - Harris v Birkenhead Corp:
    - The defendant was a local authority which had made a compulsory purchase order on a house. It then served on the owner of the house, and on a tenant who occupied it, a notice of entry under the Housing acts, which entitled it to take possession of the house within 14 days. The local authority did not in fact take possession of the house after that time and the tenant remained there for many weeks. Eventually the tenant departed, leaving the house uninhabited, but the local authority took no steps to assert its possession of the house.
  12. 12"Occupier" - Harris v Birkenhead Corp: - A four-and-a-half-year-old child entered the house through an unsecured door and was injured when he fell from a second-floor window. The local authority argued that before it could be regarded as an occupier of the house, there must have been an actual or symbolic taking of possession of the house on its behalf, and that its mere right to take possession was insufficient. This argument was rejected by the court of appeal, who held that the local authority became the occupier as soon as the premises were vacated."Occupier":
    Where an independent contractor enters premises to undertake work, whether or not this contractor becomes an occupier of the premises depends on the nature and scale of the work being undertaken. Thus, a contractor undertaking a large building development would become the occupier of the site, whilst a decorator painting a house would not.
  13. 13Definition of “premises”: - There is no explicit definition of premises. - Section 1(3)(a) states that the Act regulates the obligations of persons occupying or having control over “any fixed or moveable structure, including any vessel, vehicle or aircraft”. - Case law has established that “premises” covers not only land and buildings, but also such structures as lifts, ladders, diving boards, scaffolding and even large digging machines.Definition of “visitor”:
    - Section 1(2) of the act provides that a visitor is simply someone who would have been either an “invitee” (person who entered the premises to pursue some “common interest” with the occupier, for example customers entering a shop) or a “licensee” (Person who was merely given permission to enter premises and does NOT share a common interest with the occupier) at common law before the act was passed.
  14. 14Definition of “visitor”: - The position of contractual entrants is governed by s.5 of the act. To a limited extent an occupier is free to set his or her own standard of care in relation to contractual entrants, but where he or she does not do so, such entrants are treated the same way as visitors and are owed the “common duty of care”.Definition of “visitor”:
    - The act gives NO protection to trespassers.
    - Under the act the troublesome distinction at the common law between invitees and licensees is replaced by a single test: has the occupier given the entrant permission to be on the premises? Sometimes this is straightforward where the occupier has expressly given permission, other times the law will say that an implied permission has been given.
  15. 15There are certain rules which govern the status of particular types of entrants/visitors: Persons entering by authority of law: - By S.2(6) of the act, persons entering premises in the exercise of a right conferred by law, for example firemen attending a fire, or police executing a warrant, are treated as if they had been given permission to enter by the occupier. These are cases of ‘deemed permission’ not implied permission, because these persons are treated as visitors even where the occupier has expressly stated he or she does not want them on the premises.Persons executing rights of way:
    - Persons entering land in the exercise of a public or private right of way, or in the exercise of a statutory right to access land for recreational purposes are NOT visitors under the act.
    - Persons exercising private rights of way are owed a duty under the occupiers’ liability act 1984 (discussed later). Those exercising a public right of way are only owed a limited duty which was established at common law. Thus, the occupier is not under a duty to maintain the natural features of public rights of way which run over his or her land.
  16. 16Implied Permission: - A person who enters premises in order to communicate with the occupier will be treated as having the occupiers implied permission to be on the premises, so long as he or she knows, or reasonably ought to know, that this isn't expressly forbidden (e.g. sign post forbidding it). Therefore, a postman or other individual has an implied permission to walk up the occupiers’ drive and knock.Implied Permission:
    - The common law was rather harsh on trespassers. Many judges felt that the rules could produce injustice, therefore, they sought to avoid this harshness in hard cases by classifying trespassers as implied licensees. This often entailed a strained interpretation of the facts.
  17. 17Implied Permission: - In Lowery v Walker the plaintiff was using a short-cut across a farmer’s land when he was attacked by a horse. The farmer knew that the short-cut had been regularly used by the public for the past 35 years, and he had protested about this, although he had never brought legal proceedings. It was held that the farmer had given implied permission for people to use the short-cut. The claimant was therefore classified as an implied licensee and was successful in his claim.Implied Permission:
    - In Glasgow Corp v Taylor, a council’s failure to fence off a poisonous plant near a children’s playground made it liable in respect of a 7-year-old child who died after eating berries from the plant. The berries looked like cherries. Even though the boy had no right to take the berries, and an adult doing so may have been treated as a trespasser, the boy was treated as an implied licensee.
  18. 18Implied Permission: - Following the occupiers’ liability act 1984 there is less need for the idea of implied permission to do justice in hard cases, as the new act provides more protection to trespassers.Limitations on permission:
    The permission given by an occupier, whether express or implied, may be limited in three ways.
    (1) Occupier may permit a person to be in some parts of the premises but not others.
    (2) Occupier may permit a person to only be on the premises for a certain time.
    (3) Occupier may permit a person to only be on the premises for certain purposes.
  19. 19Where a person is given permission to enter the premises, but that permission is subsequently revoked, the law will afford the person a reasonable amount of time to leave the premises. During this reasonable time, they will be treated as a visitor (as per Robson v Hallett where the court found that a policeman was not trespassing after he was subsequently asked to leave the premises and was assaulted as he began to leave).Gould v McAuliffe:
    Difficulties arise where visitors stray from the permitted area.
    - a customer in a pub, looking for an outside lavatory, wandered through an unlocked gate into a private part of the premises where she was attacked by a dog.
  20. 20Gould v McAuliffe: - The argument that she had become a trespasser was rejected. It was held that where an occupier wishes to exclude a visitor from an area into which visitors are likely to wander, he or she must take reasonable steps to inform the visitor that this area is out of bounds. On the facts, because there was no notice this had not been done. Such a notice will not be necessary to exclude a visitor from entering a part of the premises which no one would reasonably expect a visitor to go in.In determining whether or not a person is a visitor, it is relevant to consider the purpose for which that person is permitted to be on the premises. As Scrutton LJ put it: “When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters.”
  21. 21Thus, where a person is invited for one purpose, and starts to pursue an activity unrelated to that purpose, that person may cease to be a visitor. A licence to be on premises will almost always have implied conditions. When a person breaches one of these conditions, he or she ceases to be a licensee. It therefore follows that he or she ceases to be a visitor.Permission to use the premises for the purposes in question MUST be given by the occupier, permission given by someone else is NOT sufficient.
  22. 22The “Common Duty of Care”: Section 2(2) defines as: “a duty to take such 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 for which he or she is invited or permitted by the occupier to be there.”The “Common Duty of Care”:
    It is the VISITOR that must be reasonably safe, not the premises. Therefore, if the occupier invites a blind man onto the premises, the occupier must take greater care for that visitor’s safety than would be in the case of an able-sighted man.
  23. 23The “Common Duty of Care”: Liability under the act can occur where the occupier has simply failed to protect the visitor from a danger on the premises. The occupier does not need to have created that danger to be liable. The act therefore imposes liability for mere omissions (unusual for English law). This is because in cases of occupiers’ liability there is the necessary degree of proximity between the parties so as to create a duty of care (unlike at common law where there is no duty to stop a stranger jumping off a cliff).Discharging the common duty of care:
    - In deciding whether the occupier is in breach of the common duty of care, the courts will have regard to the same factors as would be considered in a common law negligence case. They include the likelihood of a risk materialising, the magnitude of the loss if the risk does materialise, and the cost and practicality of taking precautions.
  24. 24Discharging the common duty of care: - In addition, the act expressly refers to a number of more specific factors which are to be considered when deciding the question of breach of duty. In particular, the act contains a provision relating to warnings, and another governing the extent to which an occupier will be liable for dangers created by independent contractors. THESE WILL BE DISCUSSED LATER.Discharging the common duty of care:
    - First, we must examine the extent to which an occupier can rely on a visitor to look after his or her own safety on the premises. Section 2(3) of the act provides that, in deciding whether the common duty of care is discharged, it is relevant to consider “the degree of care, and of want of care, which would ordinarily be looked for in such a visitor”. The subsection refers to two specific types of visitor which will be examined: Children and professionals.
  25. 25Children: - Section 2(3)(a) of the act provides: “an occupier must be prepared for children to be less careful than adults.” In discharging his or her duty of care, an occupier must bear in mind that children tend to be attracted to certain objects, unaware that they are dangerous. This is what happened in Glasgow Corp v Taylor (child eating poisonous berries case).Children - Jolley v Sutton LBC:
    - the council was held to be in breach of its duty of care by allowing an old wooden boat, which was an enticing play area for children, to be left abandoned on its land. A 13-year-old boy (Jolley) and his friend had attempted to repair the boat to take it to Cornwall to sail, Jolley was injured when the boat fell on him. House of lords found council liable as the type of accident and injury was reasonably foreseeable in the context of teenage boys attracted to an obviously abandoned boat.
  26. 26However, in Keown v Coventry healthcare NHS trust the trust were not found liable when an eleven-year-old boy climbed a fire escape when he should reasonably have known this was dangerous. The trust was not liable for the dangerous situation the child created himself.An occupier will not be liable for every action of a child on his or her premises. This is especially true in the case of very young children, for whom even the most seemingly harmless objects may be dangerous. If some provision were not made in law to limit the scope of occupiers’ liability to young children, the occupier may choose to not allow young children onto the premises. This would not be socially acceptable. The occupier is therefore entitled to assume that the behaviour of very young children will be supervised by a responsible adult.
  27. 27Phipps v Rochester Corp: claimant was a five-year-old boy. The boy was accompanied by his sister, aged seven, he went out collecting blackberries on a large open space and fell into a deep trench, breaking his leg. The trench, which would have been an obvious danger to an adult, had been dug by the defendants who were developing the site.Phipps v Rochester Corp:
    Devlin J remarked: “It would not be socially desirable if parents were able to shift the burden of looking after their children to persons who happen to have accessible land.” Prudent adults would not have allowed two small children to roam over the site unaccompanied. The occupiers escaped liability. Their only duty to very young children was to ensure that they were reasonably safe on the site when accompanied by a responsible adult.
  28. 28Whether or not an occupier is entitled to expect very young children on his or her premises will be accompanied by a responsible adult depends on the facts of the case. Two matters are relevant. (1) The age of the child (2) The nature of the premisesA prudent parent should realise that whilst only very young children will be at risk in a play-ground, a building site, such as that in Phipps, would present dangers to older children if unaccompanied. An occupier is however required to take into consideration the social habits of the neighbourhood in which his or her premises is situated. Thus, where a piece of land becomes locally recognised as a playground for unaccompanied children, an occupier must ensure that these children are reasonably safe.
  29. 29Professional Visitors: Section 2(3)(b) provides: “An occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.”Professional Visitors:
    An occupier may therefore expect that a skilled visitor, employed to undertake work on the premises, will take appropriate precautions against risks ordinarily associated with his or her work. The subsection does not cover risks not normally associated with the job.
  30. 30In Eden v West & Co the defendants were liable where a carpenter removed a window and the brickwork above it collapsed on him. The risk of this happening in a modern property were extraordinary and the defendants ought therefore to have warned him that the brickwork was not properly supported.Roles v Nathan:
    - Two chimney sweeps had been engaged to clean the flue of a boiler and to seal up some vent holes in the flue so that it would operate more efficiently. The defendant’s heating engineer had repeatedly warned the sweeps about the dangers of being overcome by carbon monoxide fumes if they worked on the flue whilst the boiler was lit. He gave evidence however, that the sweeps declined to follow his advice, taking the view that they were the expects and they could look after themselves. The sweeps completed most of their work, telling the man that they would finish the job the following day. In fact, the sweeps returned later that day, by which time the boiler had been lit, and were overcome by fumes.
  31. 31Roles v Nathan: Majority of court of appeal held the occupiers were not liable. As per Denning LJ: “When a householder calls in a specialist to fix a defect on their premises, he can reasonably expect the specialist to guard against the dangers arising from the defect. The householder is not bound to watch over him to see that he comes to know harm.”Sometimes professional visitors will suffer injury as a result of a danger on the premises, even though they have taken all reasonable care and skill in taking care of their own safety. In such cases, the courts have held that the mere fact that the visitor has special skill, will not, by itself, entitle the occupier to escape liability. The fact that the visitor has special skill does not mean that he or she has voluntarily assumed the risks associated with the task, it simply means that he or she is expected to take greater care than would be taken by a lay person in relation to those risks.
  32. 32Ogwo v Taylor: - a fireman injured whilst firefighting in a confined space was able to recover from an occupier who had negligently started the fire on the premises. The house of lords held that whilst an occupier was entitled to expect that the fireman would use his professional skill in tackling a fire, if, despite exercising all due skill, the fireman suffers injury, the occupier would be liable.Giving a warning of the danger:
    - Section 2(4)(a) of the act provides that in deciding whether or not an occupier has discharged the common duty of care, the fact that he or she has warned visitors of the danger is a relevant consideration. The subsection goes on to state however, that: “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.”
  33. 33Thus, a distinction must be drawn between a mere warning of the danger, which offers no assistance as to how to avoid the danger, and a warning which enables the visitor to be reasonably safe. Under the act, only the latter will completely discharge the common duty of care. Again, the leading authority is Roles v Nathan (Chimney sweep case).Lord Denning explained: “suppose there was only one way of getting into and out of premises, and it was by a footbridge over stream which was rotten and dangerous. According to the old law, the occupier could escape liability by putting up a notice: ’this bridge is dangerous’, even though there was no other way by which the visitor could get in or out. In such a case, section 2(4) (the new law) makes it clear that the occupier would nowadays be liable. But if there were two footbridges, one of which was rotten, and the other safe a hundred yards away, the occupier could still escape liability, even today, by putting up a notice: “do not use this footbridge. It is dangerous. There is a safe one further upstream”. Such a warning is sufficient because it does enable the visitor to be reasonably safe”.
  34. 34The chimney sweeps in Roles v Nathan had been given clear warnings of the danger by the defendant’s heating engineer. These warnings enabled the sweeps to be reasonably safe, by making it clear that the danger could be avoided by not working when the boiler was litNot only must the warning tell the visitor what to do in order to avoid the danger, it must also be given in terms that are comprehensible to the visitor. It is recognised that children do not always give warnings the attention they deserve, so an occupier may be required to take other steps (such as building a fence) to discharge the common duty of care.
  35. 35The courts have made it clear that there is no duty to warn irresponsible visitors against dangers which are perfectly obvious. Lord Hoffmann in Tomlinson v Congleton BC stated: “A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice… or some lack of capacity, such as the inability of children to recognise danger.”In English Heritage v Taylor, the key issue for the court was whether allowing visitors to a castle to use an informal path down a steep slope where there was a risk of falling into a moat was an obvious danger or not. The court held that it was not an obvious danger and that there were no warning signs. English heritage was found liable.
  36. 36In Darby v National Trust, the claimant drowned in a pond of deep murky water, the court found that there were no hidden dangers in the pond. The risk of drowning would have been obvious to any adult who went into the pond. The defendants were therefore not under a duty to place warnings around the pond.In Blackpool and Fylde College v Burke, when a pile of badly stacked classroom chairs fell on a student, the college was under no duty to give warnings and instructions on how to stack the chairs, because the way the chairs should be stacked was obvious, as was the risk of them collapsing if stacked incorrectly.
  37. 37Section 2(4)(a) refers to a warning given BY the occupier. Strictly speaking a warning by a third party is therefore insufficient to discharge the occupier’s duty of care, even if it enables the visitor to be reasonably safe. This being said, such a warning will form part of ‘all the circumstances of the case’ and as such according to section 2(2) of the act, will be a relevant consideration.It should be noted that the words “without more” in Section 2(4)(a) of the act raise the possibility that a warning which does not by itself enable the visitor to be reasonably safe might be regarded as sufficient to discharge the common duty of care when taken together with some other factor in the case (the presence of a guard rail, for example).
  38. 38A sign stating that ‘visitors enter at their own risk’ is NOT a warning at all, but rather an attempt to invoke the defence of voluntary assumption of risk. Similarly, a sign declaring that “no responsibility is accepted for any loss or damage on the premises” is not a warning, but an attempt to exclude liability. THESE WILL BE DISCUSSED LATER.Entrusting Work to Independent Contractors:
    - Independent contractors, who are possessed of special skill, can, to a certain extent, be expected to look after their own safety while they are on the premises. An alternative situation is where a visitor (other than the independent contractor) suffers loss because of the independent contractor’s negligence in carrying out work for the occupier
  39. 39The visitor’s loss may result from the manner in which the contractor’s conduct themselves whilst on the premises (e.g. leaving a toolbox on the stairs), or it may result from the contractor’s poor workmanship which leaves a defect on the premises (poorly constructed staircase).Section 2(4)(b) provides that where a visitor suffers damage due to “the faulty execution of any work in construction, maintenance or repair” by an independent contractor, the occupier is not normally liable if, in all the circumstances of the case:
    - It was reasonable to entrust the work to an independent contractor
    - The occupier took reasonable steps to satisfy himself that the contractor was competent
    - The occupier took reasonable steps to satisfy himself that the work had been done properly
  40. 40The courts appear to have taken the view that it will be reasonable to entrust the work to an independent contractor whenever the work is of a type which is normally undertaken by contractors.A contractor will usually be taken to be competent unless the occupier is aware of facts which suggest incompetence (faulty work carried out in the past, for example). In some circumstances it may be appropriate for an occupier to check a contractor’s competence by seeing that he or she is a member of a relevant trade association, holds relevant qualifications, is suitably experienced and insured (insurance only needed in activities that are risky).
  41. 41Bottomley v Todmorden Cricket Club: - defendants were held liable for the activities of independent contractors providing a fireworks display. The hazardous nature of the activity placed the defendants under a duty to take positive steps to check the competence of the contractors, and, in particular, to check whether they were insured.Gwilliam v West Hertfordshire NHS Trust:
    - defendant hospital had engaged a contractor to operate a ‘splat-wall’ at a fundraising event. The hospital had selected the contractor’s name from the phone book and had paid him an extra £100 to operate the amusement, so as to benefit from his public liability insurance. The claimant was injured by the contractor’s negligence, and it turned out that his public liability insurance had expired four days before the event. In an action against the hospital, a majority of the court of appeal held that, whilst the hospital had been under a duty to inquire into the contractor’s insurance position, it would have been unreasonable for them to actually check his insurance certificate. The hospital had therefore discharged its duty of care to the claimant.
  42. 42Some difficulty for the courts has arisen in deciding when it would be appropriate for the occupier to check the contractor’s work personally, to see that it has been properly done. Two matters are relevant: the nature of the work undertaken and the character of the occupier. The more complex and technical the work, the less reasonable it is for the occupier to inspect it themselves. Where, however, the occupier is a specialist company or a local authority, a more detailed inspection may be called for than would be required of a lay person. Two cases (both decided before the 1957 act) illustrate the principles which the courts will apply.(1) Woodward v Mayor of Hastings: A pupil was injured when he slipped on a snow-covered step at school. The local authority was not able to escape liability by claiming that it had delegated the task of cleaning the step to the school cleaner, who, it was argued, was an independent contractor. The cleaning of the step was NOT a specialist task, and the danger was obvious. The occupiers therefore had a duty to inspect the cleaner’s work. This seems particularly harsh, but it may be a reflection of the court’s sympathy towards child visitors.
  43. 43(2) Haseldine v Daw: Plaintiff was fatally injured when a lift in a block of flats fell to the bottom of its shaft, due to the negligence of independent contractors employed to repair the lift. It was held that the occupier had discharged his duty to visitors by engaging an apparently competent firm of engineers to repair the lift. Due to the technical nature of the repairs, the occupier could not reasonably have been inspected to check the work was done properly.Despite the case of Haseldine it must be remembered that the 1957 Act requires occupiers to take reasonable steps to check the work was done properly. Thus, if the fault with the contractor’s work should reasonably be obvious to the occupier, it would be difficult for the occupier to escape liability. Where the occupier is a commercial entity, who has employed independent contractors to complete a very complex project (e.g. building a boat), the occupier may have a duty to check each part of the work as it is completed, or even to employ a specialist to oversee that the work is properly done.
  44. 44Section 2(4)(b) uses the past tense, stating that an occupier must “satisfy himself that the work HAD been properly done”. Therefore, an occupier is not required to supervise a contractor’s working practices day to day.An occupier may be held to be in breach of his or her duty to supervise the contractor’s activities, not by virtue of section 2(4)(b), but because of a general breach of the “common duty of care”, which requires an occupier to do what is reasonable “in all the circumstances of the case”. Thus, an ordinary householder will not be expected to supervise the technical aspects of a contractor’s activities but may be under a duty to safeguard visitor’s against obvious dangers created by those activities.
  45. 45It is clear from the house of lords decision in Ferguson v Welsh that an occupier has no general duty to supervise the system of work used by a contractor so as to protect the contractor’s employees from harm (Council contracted a competent independent contractor to work on a house, he sub-contracted the work out unbeknownst to the council. The sub-contractor was injured. Held council not liable).Their lordships have stated that in very exceptional circumstances, an occupier who becomes aware that the contractor’s employees are obviously in danger due to their working practices, might be under a duty to ensure that these working practices were stopped. Some of the lords doubted whether it was really reasonable for an ordinary householder to challenge the working practices of a contractor, even if they knew the working practices were dangerous.
  46. 46Exclusion of Liability: An occupier may exclude or limit their liability either by displaying a notice on the premises, or by an express term of a contract governing a visitor’s entry, as per section 2(1) of the Act. Both of these methods are subject to the restrictions on exclusion of liability contained in the Unfair Contract Terms Act 1977 and the Consumer Rights Act 2015.Displaying a notice on the premise:
    OUTDATED CASE: Ashdown v Samuel Williams & Sons Ltd:
    a licensee was injured while using a short-cut over the defendant’s land on her way to work. The defendants were not liable because they had posted notices on the land stating that no person on the land would have any claim against them for any injury whatsoever (this is a classic exclusion clause). Court of appeal held that, provided the occupier’s took reasonable steps to bring the exclusion notice to the attention of persons on the premises, they were free to dictate their own terms of entry.
  47. 47Ashdown v Samuel Williams & Sons Ltd: This case is OUTDATED. Under modern law such a case is often resolved in favour of the visitor. If the case was decided today the occupier would be unable to rely on the notice to exclude liability for personal injury, because the notice would be void under the unfair contracts act 1977 Section 2(1) which states ‘A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence’.An express term of a contract:
    Where a visitor enters premises in accordance with a contract governing their entry, occupiers may include in that contract an express term which specifies the standard of care owed to the visitor. This standard may be lower or higher than the “common duty of care”.
  48. 48An express term of a contract: - Where the contract in question contains no express term, or UCTA/consumer rights act void the express term, Section 5(1) of the act operates to imply into the contract the “common duty of care”. Implied terms have no effect on the standard of care required by the occupier, only express terms count.Maguire v Sefton MBC:
    - the claimant contracted to use a leisure centre run by the defendants and was injured when one of the exercise machines malfunctioned. Court of appeal held that since the contract made no reference to the standard of care required, the “common duty of care” would be inserted into the contract. Defendant not liable under the act.
  49. 49The contracts effect on third parties: It is important to note the effect of section 3 of the 1957 act. The section deals with a situation where: (1) An occupier enters into a contract with A, under which the occupier permits A to use his or her premises (2) The contract contains an express term setting a standard of care in relation to A (3) The occupier agrees, by the terms of the contract, to let B enter the premises (even though the occupier has no contract with B). This situation may occur where a landlord lets a property to A and allows B to visit him.In such cases, section 3 provides that if the relevant term of the contract sets a standard of care LOWER than the “common duty of care”, then that term DOES NOT apply to B. B is owed the “common duty of care”.
  50. 50This section also provides that if the term in question sets a higher standard of care than the “common duty of care”, B IS entitled to the benefit of the term, UNLESS the contract expressly provides to the contrary. REMEMBER: this only applies to areas where the landlord still retains occupational control.The Unfair Contract Terms Act 1977:
    Applies to exclusion clauses in contracts and also applies where the defendant attempts to restrict his or her liability in tort by displaying a notice when liability arises from the occupation of premises used for business purposes by the occupier.
  51. 51UCTA Section 1(1)(c) expressly states that the act applies to notices excluding or limiting the common duty of care under the 1957 act.UCTA section 2 provides that where the liability in question is “business liability”, notices or contract terms which attempt to exclude liability for personal injury or death are void. Notices or contract terms which attempt to exclude liability for other matters (damage to property for example) are valid only if they are “reasonable”.
  52. 52When does UCTA apply? (1) It must be shown that the occupier is attempting to exclude “business liability”. Section 1(3) of the act defines “business liability” as liability for the breach of an obligation arising from “things done… in the course of a business… or… from the occupation of premises used for business purposes of the occupier”. Clearly then, an ordinary householder, unless they are using their house for business purposes, will not be affected by UCTA.When does UCTA apply?
    (2) UCTA section 2(4) makes it clear that UCTA does not apply to “consumer notices” (notices which seek to exclude or restrict a trader’s liability to a consumer, this is regulated by the consumer rights act 2015) If the entrant is a consumer then UCTA does not apply even if they are entering the defendant’s business (i.e. a shop)
  53. 53When does UCTA apply? (3) The rather vague definition of “business liability” in UCTA gave rise to uncertainty in cases where the occupier used their land for business purposes (e.g. a farm) but allowed people to access the land for non-related purposes (e.g. to visit a monument). This uncertainty was resolved by the Occupiers Liability Act 1984 Section 2, which made it clear that in such cases UCTA does not generally apply.When does UCTA apply?
    (3) The section states that liability to persons accessing premises for “recreational purposes” is not “business liability” unless those persons are also accessing the premises for the business purposes of the occupier. It should be noted that in such cases the occupier can ONLY exclude liability resulting from the dangerous state of the premises (occupancy duty), they cannot exclude liability for breach of the activity duty, thus if a visitor were hit by a negligently driven tractor, UCTA would apply to prohibit exclusion of liability.
  54. 54There is a question over whether “recreational purposes” can cover a situation where the occupier allows his or her premises to be used for charity fund-raising events. The definition of “business” in section 14 of UCTA includes activities which would not normally be considered as business activities, such as the activities of government departments and local authorities. This suggests that the courts would have little difficulty in extending the definition of business to cover charitable actives. If any of the charity money goes to the occupier, it is definitely a businessWhen the premises are used solely for a charitable purpose it is unclear whether UCTA applies. The decision in the case White v Blackmore came BEFORE UCTA was introduced, however it may be helpful. In this case the plaintiff was killed because of defective barrier ropes at a charity motor-racing event. Majority of court of appeal held that the occupiers had excluded liability by posting a notice outside the premises. The fact that the premises was used for charitable purposes formed NO part of the ratio of the case, however. Only Lord Denning (dissenting) referenced that it was a charity, arguing that the courts should not be reluctant to impose liability on charities where that liability is covered by insurance.
  55. 55The Consumer Rights Act 2015: This act deals with exclusion clauses in consumer contracts and notices. The act applies to notices seeking to exclude or restrict liability to the extent that it: (a) Relates to rights or obligations as between a trader and consumer OR (b) Purports to exclude or restrict a trader’s liability to a consumer.A consumer is a person acting for purposes that are wholly or mainly outside that person’s trade, business, craft or profession.
  56. 56In contrast, a “trader” is a person or company acting for purposes relating to its trade, business, craft or profession.So, if I visit a funfair with my family and see a notice excluding liability put up by the business running the funfair, the validity of that notice is governed by the consumer rights act 2015, NOT UCTA!
  57. 57Section 65 of the consumer rights act states: (1) A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligenceSection 65 of the consumer rights act states:
    (2) Where a term of a consumer contract, or a consumer notice, purports to exclude or restrict a trader’s liability for negligence, a person is not to be taken to have voluntarily accepted any risk merely because the person agreed to or knew about the term or notice.
  58. 58Section 65 of the consumer rights act states: (3) In this section “personal injury” includes any disease and any impairment of physical or mental condition.Section 65 of the consumer rights act states:
    (4) In this section “negligence” means the breach of—
    (a)any obligation to take reasonable care or exercise reasonable skill in the performance of a contract where the obligation arises from an express or implied term of the contract,
    (b)a common law duty to take reasonable care or exercise reasonable skill,
    (c)the common duty of care imposed by the Occupiers’ Liability Act 1957
  59. 59For notices or contract terms which attempt to exclude liability for other matters (damage to property, for example), the test is not one of reasonableness as under UCTA, but one of fairness. A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer.A Minimum Non-Excludable Standard of Care?
    In cases where UCTA and the consumer rights act 2015 do not prohibit exclusion of liability, it is unclear whether the occupier is entitled to exclude liability altogether, or whether he or she will always owe his or her visitors some minimum standard of care. The point remains undecided, however, in practice, it is quite easy for an occupier to discharge the duty of care (rather than exclude it) by giving a warning of the danger.
  60. 60Liability to Non-Visitors: The 1957 Act applies only to visitors. The 1984 Occupiers’ Liability Act applies to people who are on the premises without the occupier’s permission. Usually these people are trespassers, however if someone does not intend to enter the land (i.e. they fall into it) they are not a trespasser but are still entering the land without the occupier’s permission.People can also become trespassers accidentally by wandering onto the land not realising they need permission to be there, it is the act of entering the land which must be intentional to be considered a trespasser. It is important to note that a person entering land without the owner’s express permission is not always trespass, if it has been implied they can enter (i.e. no notice/fence etc) then they are an implied licensee NOT a trespasser!
  61. 61Sometimes, a person enters premises as a visitor, but becomes a trespasser by breaching some express or implied condition of his or her licence to be there. Thus, a visitor who strays from the permitted area, outstays his welcome, or begins to pursue some purpose unauthorised by the occupier will lose his protection under the 1957 Act and will be protected ONLY by the 1984 Act.In 1972 the law underwent a change in regard to trespassers in the decision of British Railways Board v Herrington. This case was decided BEFORE the 1984 Occupiers’ Liability Act.
  62. 62British Railways Board v Herrington: 6-year-old boy climbed through a gap in a fence beside an electrified railway line and was severely injured when he came into contact with the live railway line. The defendants knew that children had been using the gap in the fence as a short-cut but had taken no steps to deter them. The house of lords held that the defendants were liable. Societies attitude towards trespassers had changed.British Railways Board v Herrington:
    Their lordships held that occupiers owed a duty of “common humanity” to trespassers. This was more than a duty to refrain from causing deliberate harm, but lower than the “common duty of care”. The precise scope of the duty was unclear however, the 1984 Occupiers’ Liability Act cleared up this uncertainty.
  63. 63Occupiers’ Liability Act 1984: The act provides that an occupier owes a duty to a trespasser to take reasonable care to see that the trespasser does not suffer personal injury on his or her premises. No duty is owed in respect of a trespassers’ property.According to section 1(3), the duty in respect of personal injury is owed if:
    - The occupier is aware of the danger, or has reasonable grounds to believe that it exists
    - The occupier knows or has reasonable grounds to believe that a trespasser is in the vicinity of the danger, or may come into the vicinity
    - The risk of the personal injury is one against which, in all the circumstances of the case, the occupier may be expected to offer the trespasser some protection.
  64. 64Section 1(4) provides that where an occupier does owe a duty of care to a trespasser in respect of a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that the claimant does not suffer injury on the premises due to this danger.An occupier may discharge his or her duty to trespassers either by giving a warning of the danger, or by taking other reasonable steps to discourage trespassers from encountering the danger (e.g. a locked gate). Here, the duty can be discharged simply by providing a warning of the danger, the notice need not inform trespassers of a safe alternative, therefore “Danger! Rotten footbridge” will suffice.
  65. 65The courts have often held that the occupier is under no liability in such cases, either because no duty is owed under the act, because the duty has been discharged or because the claimant voluntarily assumed the risk and is the author of his or her own misfortune. All three of these factors found favour with the house of lords in Tomlinson v Congleton BC to produce a finding of no liability.Tomlinson v Congleton BC:
    - defendant owned Brereton Heath Country Park. It had previously been a sand quarry and they transformed it in to a country park and opened it up for public use. The defendants had created a lake on the park which was surrounded by sandy banks. In the hot weather many visitors came to the park. Swimming was not permitted in the lake and notices were posted at the entrance saying “Dangerous water. No swimming”. However, despite this, many people did use the lake for swimming.
  66. 66Tomlinson v Congleton BC: - Rangers were employed and on occasions sought to prevent swimming but some of the visitors would be rude to the rangers’ attempts to prevent them and many continued to swim. The claimant was injured when he dived into shallow water and broke his neck. At the Court of Appeal, it was held that he was a trespasser despite the repeated trespass and inadequate steps to prevent him swimming. They also stated that the warning signs may have acted as an allurement to macho young men.Tomlinson v Congleton BC:
    - The Court of Appeal was of the opinion that since the introduction of the Occupiers Liability Act 1984, the courts should not strain to imply a licence. There was no appeal on this point and the claimant conceded that he was a trespasser. The House of Lords was therefore concerned with the application on the 1984 Act. The Court of Appeal had held that the council were liable but reduced the damages by 2/3 under the Law Reform (Contributory Negligence) Act 1945. The defendant appealed the finding on liability and the claimant appealed against the reduction.
  67. 67Tomlinson v Congleton BC: House of Lords held the Council were not liable. No risk arose from the state of the premises as required under s.1(1)(a) Occupiers Liability Act 1984. The risk arose from the claimant’s own action. He was a person of full capacity who voluntarily and without pressure or inducement engaged in an activity which had an inherent risk. Even if there was a risk form the state of the premises, the risk was not one against which the council would reasonably be expected to offer the claimant some protection under s.1(3)(C).Tomlinson v Congleton BC:
    In reaching this conclusion Lord Hoffman looked at the position if he had not been a trespasser and applied the common duty of care owed under the Occupiers Liability Act of 1957. He was of the opinion that there was no duty to warn or take steps to prevent the claimant from diving as the dangers were perfectly obvious. This was based on the principle of free will and that to hold otherwise would deny the social benefit to the majority of the users of the park from using the park and lakes in a safe and responsible manner. To impose liability in this situation would mean closing of many such venues up and down the country for fear of litigation.
  68. 68The approach in Tomlinson was followed in Simonds v Isle of Wight Council. Here, the claimant, a five-year-old child, broke his arm when he fell from a swing near to a playing field being used for a school sports day. It had been argued that the school was under a duty to immobilise the swings, or at least to place a cordon around them to discourage children from using them. In denying that the school was under such a duty, Gross J, referring to Tomlinson, pointed out that the result of a finding of liability might be that pleasurable sporting events would cease to be held, because of the high cost of liability insurance.Applying The 1984 Occupiers’ Liability Act:
    The question of whether or not liability to trespassers is present in any given case will depend heavily on the facts. One interesting point of law has arisen in respect of the words “has reasonable grounds to believe” under section 1(3) of the 1984 act.
  69. 69Section 1(3) states (as noted above) the duty in respect of personal injury is owed if: - The occupier is aware of the danger, or has reasonable grounds to believe that it exists - The occupier knows or has reasonable grounds to believe that a trespasser is in the vicinity of the danger, or may come into the vicinity - The risk of the personal injury is one against which, in all the circumstances of the case, the occupier may be expected to offer the trespasser some protection.The decision in White v St Albans City and DC made it clear that where an occupier erected a fence around the premises, this did not necessarily mean that he or she had “reasonable grounds” to expect trespassers In the vicinity, but uncertainty remained about how the words should be interpreted.
  70. 70In Herrington (Case where young child went through gap in a fence and was electrocuted by train line, defendants were held liable. CASE WAS DECIDED BEFORE THE 1984 OCCUPIERS’ LIABILITY ACT!) Lord Diplock expressed the view that no duty to trespassers could arise unless an occupier had actual knowledge of facts as to the condition of his or her land, and actual knowledge of facts which suggested the likely presence of trespassers.It was unclear whether this remained the position under the 1984 act, or, whether the words “reasonable grounds to believe” meant, for example, that an occupier who had no actual knowledge of a dangerous object on the premises could be liable if they reasonably ought to have known. However, in Swain v Natui Ram Puri and Ratcliff v McConnell, the court of appeal expressly endorsed Lord Diplock’s views, suggesting that, on a proper construction of the act, an occupier must ACTUALLY know the primary facts (from which a reasonable occupier would conclude that there was a danger or a likelihood of trespassers) before he or she can be liable.
  71. 71The judgement in Ratcliff also endorsed Lord Diplock’s view that the financial resources of the particular occupier are relevant in deciding what level of protection he or she can reasonably be expected to offer to trespassers.Ratcliff v McConnell: The claimant was a student at Harper Adams College. One night he had been out drinking with friends on campus and they decided they would go for a swim in the college pool which was 100 yards from the student bar. They climbed over a locked gate into the open-air swimming pool. The pool had a notice at the entrance which stated the pool would be locked and its use prohibited between the hours of 10pm -6.30am. There was a notice at the shallow end in red on a White background stating, ‘Shallow end’ and a notice at the deep end stating, ‘Deep end, shallow dive’.
  72. 72Ratcliff v McConnell: However, the boys did not see the signs because there was no light. The three boys undressed. The claimant put his toe in the water to test the temperature and then the three of them lined up along the side of the pool and dived in. Unfortunately, the point at which the claimant dived was shallower than where the other boys dived and he sustained a broken neck and was permanently paralysed. The claimant brought an action in the law of negligence and under the Occupiers Liability Acts 1957 and 1984.Ratcliff v McConnell:
    The trial judge held that the claimant was a trespasser since he was not permitted to go into the pool and that the College owed a duty of care under the 1984 Act since the pool had often been used by students in the prohibited hours so the College should have been aware that the claimant was within a class of persons who may come into the danger. The breach was in not taking more preventative action to prevent use of the pool. The claimant’s damages were, however, reduced by 60% under the Law Reform (Contributory Negligence) Act 1945. The defendants appealed contending the evidence relied on by the claimant in terms of repeated trespass all took place before 1990 before they started locking the gates.
  73. 73Ratcliff v McConnell: Held: The appeal was allowed. The claimant was not entitled to compensation. The defendant had taken greater steps to reduce trespass by students since 1990. The only incidence of trespass to the pool in the four years prior to the claimant’s injury, related to students from a visiting college and therefore there was no reason for the college to suspect the students had come into the danger so no duty of care arose under s.1(3)(b) Occupiers Liability Act 1984.Ratcliff v McConnell:
    Also, the trial judge had incorrectly identified the danger. The pool itself was not dangerous it was the activity of diving into it which was unsafe. This was an obvious danger to which there was no duty to warn. By surrounding the pool with a 7-foot-high fence, a locked gate and a prohibition on use of the pool in the stated hours the College had offered a reasonable level of protection.
  74. 74—

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Tort Law Flashcards on Tort (6) - Occupiers' Liability:, created by Will Dillon on 02/05/2019.
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Will Dillon · May 2019
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May 25, 2019
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