#4664 - Occupiers Liability - GDL Tort Law

• Extension or ordinary rules of negligence – although it is largely governed by statute (doesn’t replace but works alongside common law)

• Duty to lawful visitors: Occupiers’ Liability Act 1957 (OLA 1957)

• Duty to non-visitors i.e. trespassers: Occupiers’ Liability Act 1983 (OLA 1984)

  • Basis of the Occupiers’ Liability Act 1984 (OLA 1984 ) derived from HL decision in British Railway Board v Herrington – introduction of the duty of ‘common humanity’ and departure from old position that no duty was owed to trespassers

Liability to Lawful Visitors (OLA 1957)

“Occupier” (s1(2) OLA 1957)

• Act doesn’t define it but makes reference to the common law: any person who has a sufficient degree of control over the premises

• Wheat v Lacon & Co

  • Brewery who allowed manager(s) of pub to live there remained in occupation as retained sufficient degree of control - if someone has to live somewhere as a part of their occupation, they will not be an occupier

  • (Denning’s judgement) – 4 categories of ‘occupiers’:

1. Where the landlord doesn’t live on the property – the tenant is the occupier

2. Where the landlord retains some part of the premises (e.g. common areas) he will be the occupier of those parts

3. Where the landlord issues a license, they remain the occupier (as in Whear)

4. Where the landlord employs an independent contractor, they usually remain the occupier

• Bailey v Armes (CA): Flat roof was above a supermarket and adjacent to the D’s flat – neither supermarket nor flat owner deemed to have sufficient control over the roof areas – so neither liable

• Multiple occupiers: no need for exclusive occupation, so can have multiple occupiers

  • Collier v Anglican Water Authority: Both water board and local authority were occupiers – it was the water authority who were liable

  • Different occupiers may be responsible for different parts of the premises; or else for different dangers

• Independent contractors: can be occupiers - AMF International Ltd v Magnet Bowling Ltd

• Absent owners: Harris v Birkenhead Corporation – occupants even though had never exercised actual control over the property

“Premises” (s.1(3)(a) OLA 1957)

• Widely defined: s1(3)(a) OLA 1957 and s1(2) OLA 1984 – includes ‘any fixed or moveable structure, including any vessel, vehicle or aircraft’

• Wheeler v Copas: premises included a ladder

“Visitor”

• No definition of ‘lawful visitors’ in the act – so look to the common law:

• Classification of visitor:

1. Express permission / licence: but this can be limited in a number of ways –

1. By area: permission may be limited to certain areas – e.g. invitation to enter cinema to watch a film, but no permission to enter other areas

   • The Calgarth – an invitation to enter a house to use the staircase does not equate to an invitation to slide down the bannister!

   • Pearson v Coleman Bros: Girl was permitted to be on the premises to attend a circus, but had no permission to enter the area where she was mauled by a lion

2. By time

   • Stone v Taffe: punters permitted to be in pub for a lock-in – pub was liable despite the lock-in being illegal – an occupier must make time limit clear to the visitor

3. By purpose:

   • Visitor may become a trespasser if they go beyond the purpose for which they were invited – R v Smith and Jones

2. Implied permission

   • Permission may be implied as a result of the occupier’s behaviour

   • This may be limited by notice

   • Lowery v Walker: Where the public had been using a short cut over the D’s land for 35 years, there was an implied licence and thus he was liable when someone was attacked by a wild horse

3. Lawful authority (s2(6))

   • Higgs v Foster: police can enter property

4. Contractual permission

   • S5(1) OLA 1957: where someone enters under terms of a contract with the occupier – a term will be implied into the contract that a duty of care is owed to the entrant

5. Public and private right of way

   • Users of public rights of way (i.e. footbath) not covered by the Acts so must rely on the common law

The Common Duty of Care

• The Common Duty of Care is defined in s.2 (2)

• S.2 (1) defines who this duty is owed to

Breach and Standard of Care

• S2(2) OLA 1957: occupier should take ‘such care as is reasonable in all the circumstances’

  • Only expected to take reasonable care - not an absolute standard

• Duty relates to the state of the premises itself (if damage is caused by an activity on the premises then the claim will be brought in general negligence

• Consideration will be paid to any personal characteristics of the visitor

  • Haley v London Electricity Board: blind people should be considered as potential users of the highway

• Special factors/qualifications

  • Children: s2(3)(a)

    • Occupier should be prepared that children will be less careful than adults

    • Doctrine of Allurement

      • Children are attracted to certain dangerous premises – and occupiers should be aware of this

      • Glasgow Corp v Taylor: child attracted to poisonous red berries on a tree

    • However: Doctrine of Implied Permission tempers the allurement concept:

      • Phipps v Rochester Corporation: occupier entitled to assume a child will be supervised (parent or a person in loco parentis)

      • Although – if children are known to be present and it can be anticipated that the level of supervision is low – greater care may be appropriate

        • Perry v Butlins Holiday World: CA found D liable due to the regularity of the presence of children in the area, and the design of the brick wall which caused the injury

  • Experts/Specialists: s2(3)(b)

    • Act preserves the common law – occupiers should not have to take care to protect someone against risks which are incidental to their job and which they could reasonably be expected to have guarded against themselves

    • Roles v Nathan: Chimney Sweeps ignored warnings about dangerous nature of boiler – where a specialist is called in to deal with a defective installation, it is reasonable to expect them to guard against the dangers arising from the defect

    • Salmon v Seafarer: actions brought by fireman in the course of fighting fires – the firemen had taken all reasonable precautions so the D remained liable

  • Independent Contractors (s2(4)(b))

    • Occupier may escape liability if the contractor causes the danger to a visitor and the occupier has:

1. Acted reasonably in the circumstances

2. Checked that the contractor was competent; and

3. Ensured the word was done properly

   • Haseldine v Daw: C injured in lift – landlord not liable as not expected to be familiar with the mechanics of lifts

   • Warning notices (s2(4)(a))

     • Adequate warnings may discharge liability

     • Warning must be sufficient to discharge the duty of care : Roles v Nathan

     • If the danger is very obvious there may not be a need for warnings – Staples v W Dorset DC (algae covered sea wall was clearly slippery and thus dangerous)

• Causation and Remoteness: normal rules apply (Wagon Mound (No 1))

• Damage: Claims can be made for personal injury, damage to property and consequential economic loss but NOT pure economic loss

Defences

• Volenti: s2(1) & 2

  • Simms v Leigh RFC: rugby player failed when he sued the owner of the ground having ran into a wall during a game – the pitch complied with safety specifications so no liability (he had consented to risk)

• Contributory Negligence: s2(3) and Law Reform (Contributory Negligence) Act 1945

Exclusion/Limitation Clauses

• S2(1) OLA 1957 preserves common law right to exclude liability – although this is restricted:

1. OLA 1957: s3 – occupier cannot exclude common duty he owes to a third party

2. Unfair Contract Terms Act 1977

Liability to Non-Visitors (OLA 1984) e.g. Trespassers

“Trespasser”

• ‘he who goes on to the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to.’ Per Lord Dunedin in Robert Addie & Son Ltd v Dumbreck

• Duty owed was originally very narrow – but has now been extended

  • Extension of the doctrine of allurement – and doctrine of ‘common humanity’ developed in Herrington

Duty:

• Three stage test (s1(3)(a)-(c) OLA 1984: Danger; Proximity and Precautions

4. Is the occupier aware of the danger – or have reasonable grounds to believe it exists; and

15. Does he know that the trespasser is in the vicinity (or have reasonable grounds to believe that he is)

16. Is the risk one which, in all the circumstances, it is reasonable for the occupier to protect the trespasser from

• S1(4) OLA 1984 imposes duty on occupier where all conditions are satisfied – to take such care as is reasonable in all the circumstances to ensure the entrant does...