#102 - Defective Premises - Tort Law

Defective Premises 1. Occupiers Liability i) To visitors Occupiers Liability Act 1957: replaces common law on liability of an owner/occupier/controller of premises to visitors. The act regulates the obligations of occupiers or controllers of fixed or moveable structures (e.g. boats) and regulate damage to property towards visitors. It also applies to the obligations of the occupier/controller to the property of people who are not visitors. S.2(1) an occupier owes the common duty of care to all visitors except insofar as he is free to and does extend, restrict etc his duty. S.2(2) The "common" duty is to reasonably see, in all the circumstances, that "a visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there". S2(3) one should look at the degree of care and lack of care that would "ordinarily be looked for in such a visitor" so that an occupier must be prepared for children to be less careful than adults; and an occupier can expect that a visitor will appreciate and guard against special risks "ordinarily incidental" to the purpose of his calling, so far as the occupier leaves him free to do so. S.2(4) In determining whether the duty has been fulfilled, consider: 2(4)(a) If a warning to a danger has been given, this alone doesn't absolve the occupier (O) unless adequate "to enable the visitor to be reasonably safe"; 2(4)(b) Where an IC's work had caused the a defect that injured the visitor, this alone will not make the occupier liable if he had acted reasonably in entrusting the work to an IC and had taken steps as he reasonably ought to satisfy himself that IC was competent and that the work had been properly done. S.2(5) No duty where visitor (V) has "willingly accepted" the risk as his. S.2(6) Where a person lawfully enters property, they are treated as being permitted to do so by the occupier, even if this isn't really true. S.3(1) Where O has a contract by which he has to allow strangers to the contract (defined as those not entitled to benefit from it e.g. a party who was formerly a party to it but has ceased to be so) to enter the property, O's common duty of care to the stranger as a visitor cannot be restricted by the contract but DOES include any extensions to the duty of care from the contract S.5(1) It is an implied term of any contract that involves V entering, using, delivering goods etc to O's premises, that O owes a common duty of care. This applies to fixed and moveable structures. Defective Premises Act 1972 s 4: S.4(1) Where a landlord has an obligation to maintain and repair a tenant's premises, the landlord owes a duty to take such care as is reasonable to see that people who might be reasonably expected to be affected by "relevant" defects are reasonably safe. S.4(2) This applies if the landlord did or ought to have known of the relevant defect. S.4(3) A relevant defect is one that existed at the material time caused by a landlord's act or omission in breach of the term to maintain and repair the premises. Wheat v Lacon [1966] AC 552: D was a company with a pub and the owners, L, lived above the pub. L let a room to P. The handrail finished before the end of the stairs and P fell down and died. P's estate brought a claim against the company (NB the company, not L). HL held that the company was an occupier and owed a common duty of care to P, but had not breached the duty. Lord Denning: "occupier" in the 1957 Act means a person who has a sufficient degree of control so as to owe a common duty of care towards those who lawfully enter the premises. This instance is simply a particular example of the duty of care that a man owes to his neighbour. "Where a person has a sufficient degree of control over the premises that he ought to realise that any failure on his part to use care may result in injury to a person coming there", then he is the occupier, his guest is a visitor and O owes V a duty to use reasonable care. Here, the company had merely licensed L to use the premises but had not let it to L so that it retained a sufficient measure of control. However there was nothing to suggest that the short handrail was dangerous e.g. no previous accidents. It is possible to have more than one occupiers, as here. McGeown v Northern Ireland Housing Executive [1995] 1 AC 233: P's husband, X, was a tenant in D's housing estate. There was a public footpath across the estate, which P had to use to get to the house. Because it was in disrepair, P was injured when using it, and sued D under the 1957 Act. HL denied the claim, saying that a person could not be a "visitor" to a public right of way and because it was a public right of way, it was irrelevant that it was the only route by which P could access the house. Lord Keith: It would be an unfairly heavy burden on land owners to demand not only that they allow people to cross their land but also that they maintain public pathways. Also it makes no sense to say that they have been "permitted" to pass through D's land if they can do so by "right", since they do not need permission to use the public right of way. "The concept of licensee or visitor involves that the person in question has at least the permission of the relevant occupier to be in a particular place. Once a public right of way has been established, there is no question of permission being granted by the owner of the solum to those who choose to use it. They do so as of right and not by virtue of any licence or invitation" Phipps v Rochester [1955] 1 QB 450 (NB before 1957 Act): D tacitly permitted people to enter his land (he knew of it and did not mind) and P, a small child, entered the land and fell in a trench that D had dug for building work, injuring himself. P sued D. Devlin J dismissed P's claim.