#14682 - Occupier's Liability - GDL Tort Law

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Occupier’s Liability Act 1957 & Occupier’s Liability Act 1984

‘Negligence in statutory form’ - the duties owed to visitors and non-visitors by occupiers of land

Distinguishes between:

• Visitors: high level of protection

• Non-visitors: low level of protection

This is fault-based liability – not all injuries are actionable

Contrast negligence:

• Sue under 1956 or 1984 Act if they have been injured by the state of premises

• Sue under negligence if it is caused by something else

  • Revill v Newberry (above) – failed under Occupier’s Liability because the homeowner with the shotgun was not a part of the premises

Definition of Occupier

OLA 1957 doesn’t define the term occupier

Occupation is determined by control of the land

Wheat v Lacon

Pub let out to guests in the private section. C’s husband was a guest and he was found dead at the base of the stairs in the pub accommodation. There was no lighting as a lightbulb had blown & the handrail was too short. C sued the brewery owning the pub & the manager

Held: were the brewery occupiers of the private area? They didn’t have control over this bit.

• Lord Denning: you can have more than 1 occupier to a premises. The brewery had sufficient control of the land including the private space (though less control than the landlord)

However this claim failed on breach – there was no conduct falling below reasonable standard

Definition of Premises

S.3(a) ‘premises’ includes a “fixed or moveable structure, including any vessel, vehicle or aircraft”

Liability: Visitors

Duty to ‘visitors’ imposed by S.1 OLA 1957:

1. The rules enacted by the two next following sections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.

Definition of Visitor

Whether or not someone is a visitor will be determined from the reasonable position of the claimant.

• Scope of permission:

The Calgarth

A ship got into trouble using a navigable channel other than in the ordinary way of navigation

Held: once a visitor goes beyond the scope of their permissions to use the premises, they will become a non-visitor for the purposes of the Act

• Scrutton LJ: if you invite a visitor into your house to use the staircase you do not invite them to slide down the banister

Harvey v Plymouth CC

C running away from taxi driver whom he owed money and made a getaway through a council-owned park. He fell over a ledge injuring himself and claimed the Council should have put up a fence

Held: his use of the land was outside the scope of the permission given by the Council and therefore he could not claim

• The doctrine of allurement:

This doctrine is applicable to claimants who:

• >15 years old

• Where there is something attractive on the land

It treats such claimants as visitors by virtue of the allurement

Glasgow Corp v Taylor

Boy died eating poisonous berries from Glasgow Corp-owned botanic gardens

Held: Council had not taken reasonable steps in regards to the allurement

Jolley v Sutton (see ‘General Negligence’ doc)

Held: though the Council did not give permission for the claimant to come onto the land, he was a visitor through allurement. In fact D didn’t argue this point & accepted he was a visitor.

• Mistaken permission:

Ferguson v Welsh

Council hired a contractor who, against the wishes of the Council, subcontracted the work out. An employee of the subcontractor was injured and tried to sue the Council

Held: C was considered a visitor of the contractor (as the status is determined from the POV of the reasonable claimant), and so they looked to S.2(4) OLA 1954 with regards to contractors – however here the Council had discharged their duty with regards to contractors (appointed with reasonable care & skill). C was therefore a trespasser to the Council

• Express/implied permission

Standard of Care to Visitors

The standard of care is defined by S.2(1) & (3) OLA 1957:

1. An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

2. The common duty of care is 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 is invited or permitted by the occupier to be there.

3. The 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

What is ‘reasonable care’ will be determined by how far a reasonably foreseeable risk has been mitigated:

Tedstone v Bourne Leisure Ltd

C slipped over on water next to the edge of a Jacuzzi which had been on for no longer than 5 minutes

Held: it was not unusual to find water spillage nears jacuzzies & therefore no reasonable system could have been devised by the occupiers to remedy it

Hutton v Somerset CC

C slipped over on rain brought into the school –school had failed to put up wet weather signs which was its usual practice

Held: the school’s system was reasonably safe, and therefore discharged their duty to take care of visitors. Wet floors were not a common problem & the law cannot expect them always to have dry floors

Butcher v Southend-on-Sea BC

C using path on Council-owned land – path unlevel and C injured herself

Held: (CA) breach of duty as someone falling off the path was a reasonably foreseeable risk of harm – they had failed to address this risk by leaving it unlevelled

Distinction between land & use of land:

Poppleton

C had seen people jumping from the walls at a climbing wall and C decided to jump from one wall to the other injuring himself. C argued that the occupiers were liable for failing to warn him that the safety mat wouldn’t necessarily protect him from a fall from that height

Held: reversing the trial judge’s finding of liability with contributory negligence, CA found that it is not reasonable to require occupiers to warn visitors of very obvious risks.

This case also highlights the distinction drawn between risks emanating from:

• The land itself &

• People’s use of land which they have freely chosen to take part in

Varying standards of care:

• Standard of care : children

OLA 1957 S.2(3)(a):

1. an occupier must be prepared for children to be less careful than adult

West Sussex CC v Pierce

C, 9 yo, punched a water fountain whilst horse-playing with his brother injuring himself. Argument that there was a sharp bit on the fountain

Held: underneath the water fountain couldn’t be described as sharp let alone seriously sharp – a school does not have limitless liability to its children

• Sharp LJ: it wasn’t possible to cut a finger pressing against it

Phipps v Rochester Corp: distinction between ‘big and little’ children

C, 5 yo, fell into a ditch whilst out blackberrying

Held: whilst occupiers of the building site could reasonably foresee that older children might be allured, they could reasonably assume that younger children would have been supervised by their parents. If a parent has failed to address a risk, an occupier should not be held to blame either

• Devlin J: primary burden of responsibility lies with parents as a matter of policy

Marsden

Boy fell into a pond and died at a holiday camp

Held: (CA) here the responsibility was shared between parents & occupiers but there was no question that either were not acting with reasonable care. It would be unreasonable to expect to holiday park to fence off every pond & dangers of drowning are very obvious to parents. However emphasised this was not the mother’s fault either

• Standard of care: expert visitors

S.2(3)(b) OLA 1957:

2. 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.

Roles v Nathan

Chimney sweep overcome by carbon monoxide from fire despite warnings and died

Held: no breach of duty here as it was reasonable to expect a chimney sweep to address the risks inherent in their calling (per Lord Denning)

HOWEVER the expertise must cover the risk associated with it

• Standard of care: independent contractors

OLA 1957 S.2(4)(b)

(b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.

Ferguson v Welsh (above)

Haseldine v Daw

Occupier hired firm of reasonably reputation to maintain lift & their negligence caused injury to C

Held: (CA) the duty to take reasonable care was discharged by employing a company who ostensibly, to a reasonable person, seemed proficient

Maguire v Sefton

C injured on gym equipment which was maintenance by a contractor

Held: duty discharged where, as here, the following three are satisfied:

• Reasonable to employ a contractor

• Reasonable perception of contractor competence

• Harm caused by contractor’s work