#2259 - Avoiding Occupier - Tort Law

Avoiding Occupier’s Liability

Entrusting Work to Independent Contractors

• Situation where visitor suffers loss owing to independent contractor’s negligence in carrying out the work

  • Loss may come from

    • Manner in which contractors conduct themselves whilst on premises

    • Defect in premises owing to poor workmanship

• So, where visitor suffers damage due to “faulty execution of any work of construction, maintenance, or repair”, Occupier not normally liable if

  • S.2(4)(b): Reasonable to entrust work to independent contractor.

    • Giliker: which is accepted as being fulfilled when normally work entrusted to independent contractor

  • S.2(4)(b): Occupier took reasonable steps to satisfy self that contractor was competent.

    • Assumption of competence can be made unless occupier knows of previous incompetence

      • Lord Keith in Ferguson v Welsh [1987]: As long as occupier has reasonably chosen seemingly competent contractor

        • Is not up to occupier to supervise them all of the time

          • And only has to supervise if it comes to his attention that unsafe system of work is being used.

    • Although does extend in some circumstances to check X is a member of their trade’s association or holds relevant qualifications.

  • S.2(4)(b): Occupier took reasonable steps to satisfy self that work had been done properly.

    • Ferguson v Welsh [1987]:

      • Lord Keith:

        • Would be going a very long way to hold that an occupier of premises liable to the employee of an independent contractor

          • arising not from the physical state of the premises

            • but from an unsafe system of work adopted by the contractor.

    • Three factors pertinent here

      • Nature of work undertaken

      • Character of Occupier

      • Evidence of risk left by contractor’s work

    • Haseldine v Daw: C injured when life in block of flats fell to bottom of shaft owing to negligence of contractors paid to repair lift

      • Scott LJ:

        • The landlord of a block of flats does not profess any technical skill with lifts

          • Since he can’t rely on his own judgement, his duty of care requires him to seek this advice

        • Having done this, holding him liable would make him an insurer for an independent contractor’s negligence.

    • BUT would be hard to argue that Occupier not liable if obvious risk left owing to negligence of independent contractors

      • Woodward v Mayor of Hastings [1954]: C, a pupil at a school which D was responsible for, was injured falling down icy steps negligently left in this condition by a cleaner.

        • Du Parqu LJ:

          • D is liable - The craft of the charwoman may have its mysteries

            • But there is no quality in the nature of the work which the cleaning of a snow covered step demands

Exclusion Clauses

• Liability under the Act may be limited by an express term of a contract/ notice given to visitors

  • S.2(1) An occupier owes the same duty, the “common law duty”, to all his visitors

    • Except insofar he is free to and does extend, restrict, modify or exclude his duty to any visitor by agreement or otherwise

  • S.2(5)

    • The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted by his visitor ([to be determined by normal common law rules])

  • Occupier can limit liability by displaying notice that people can see when entering

    • White v Blackmore (1972):

      • Lord Denning:

        • Courts are reluctant to hold warning/exemption notices as being binding

          • Unless drawn to attention of entrant

            • And assent given by entrant to terms

        • Otherwise was not part of the contract and therefore inapplicable.

  • Or through clause in contract visitor enters under

• However, either course may engage UCTA 1977 if two requirements are satisfied:

  • Requirement 1: Term/notice must attempt to exclude or restrict liability for negligence

    • Unfair Contract Terms Act 1977:

      • S.1(1): “Negligence” means the breach of

        • (c) the common duty of care per OLA 1957

        • BUT (b) not a stricter duty

      • S.2(1) Personal Injury

        • A person cannot by reference to a contract term or a notice exclude or restrict his liability for death or personal injury

          • resulting from negligence

        • s.14 defines what a notice is (e.g. sign at entrance)

      • Other damage S.2(2)

        • In the case of other loss or damage

          • A person can’t restrict liability resulting from negligence, except so far as the term or notice

            • Satisfies the requirement of reasonableness.

      • S.2(3)

        • Where contract term or notice purporting to exclude liability, it is not in itself to be taken as indicating C’s voluntary acceptance of the risk.

  • Requirement 2: Must Come from business activities

    • UCTA 1977 s.1(3):

      • In both contract and tort, s.2... apply only to business liability

        • That is (a) things said or done in the course of business

        • OR (b) from the occupation of premises used for business purposes of the occupier

    • As amended by OLA 1987:

      • S.2: the liability of an occupier of premises, for breach of obligation towards a person obtaining access to the premises for educational or recreational purposes

        • Being liability from injury suffered owing to the dangerous state of the premises (so won’t help if O runs C down with a tractor)

          • Is not a business liability of the occupier

          • Unless granting access for the purposes concerned falls into the business of the occupier

      • Rogers: e.g. if a farmer has on his land ruinous cattle, (which is his business of keeping them)

        • Then he won’t be liable if he allows access on the condition he is not liable for death or personal injury

          • If the cattle then trample the person accessing the land

          • UNLESS his business is to charge to see the cattle in their natural habitat – and not just keeping them for farming purposes.

• Any exclusion is “only so far as he is free to do so”

  • OLA 1957 s.2(1)

    • O owes the common duty of care “except so far as he is free to do so and does extend, restrict, modify or exclude his duty

      • By agreement or otherwise

    • Rogers: So where permission is deemed or people enter by exercise of right at law, notice restricting liability unlikely to assist

  • Ashdown v Samuel Williams and Sons [1956]: (pre dates OLA 1957) C licensee on land belonging to D, when knocked down by railway trucks negligently being shunted along a railway line. Notices had been posted by D all over the place that people entered at their own risk.

    • Held

      • D had taken reasonable steps to bring exemption to bring the conditions to C’s attention.

    • Rogers: Case would have gone over way now b/c D engaged in business activities – but might be evidence for principle that despite lack of express contract

      • Accords with principle that if can exclude from land altogether, can’t I permit...