#2286 - Discharging An Occupier - Tort Law

Discharging common duty of care

Nature of Duty Owed

• Duty Owed

  • Single duty owed by occupier to all lawful visitors regardless of purpose of entering

    • S.2(2): “Common duty

      • To take such care as in circumstances is reasonable

        • To see that visitor is reasonably safe in using premises

          • For purpose for which visitor invited or permitted by occupier to be there

    • Giliker: Act is visitor-centric rather than property centric

      • So inviting a blind man onto the premises will lead to a greater duty to take care of visitor than if sighted person invited

      • Thus liability can arise where occupier merely fails to protect a visitor

        • From danger on the premises

          • Thus proximity, regarding Occupiers Liability, is not a requirement.

          • Merely that O has invited C onto the premises.

• Breaching Duty

  • Courts will have regard to the same general factors which would be considered in common law negligence action

    • E.g. Likelihood and foreseeability of risk materialising

    • Magnitude of loss if no steps taken

    • Difficulty in cost and practicality of taking precautions

  • S.2(3): Consider the “degree of care, and of want of care, which would ordinarily be looked for in such a visitor”

Special rules regarding children and professional visitors

• Children

  • S.2(3)(a): Occupier must be prepared for children to be less careful than adults.

  • Jolley v Sutton LBC [2000]:

    • Lord Steyn: Occupiers should not underestimate ingenuity of children to do injuries to themselves

      • And should therefore be prepared to take appropriate precautions.

  • Giliker: occupiers liability often wide when it comes to children

    • Occupier not always liable for children coming to harm

      • Phipps v Rochester Corp [1955]:

        • Devlin J:

          • Big children are curious and D should take reasonable steps to ensure they don’t bring themselves to harm

          • Small children lack any understanding or care

            • And it would not be right for D to have to take great steps to protect them (more so than with big children)

            • When it is clear that what they need is to be accompanied by a parent/guardian

        • Parents shouldn’t be able to abrogate blame onto D when they themselves should be taking due care of small children and not just letting them roam.

      • Simkiss v Rhondda BC (1983):

        • But occupiers should give due regard to the social habits of the neighbourhood when taking precautions

          • Thus if building site becomes routinely recognised as playground by unaccompanied children

            • Occupier has duty to ensure these children are reasonably safe.

        • However, there is no duty to fence off a mountain just on the off chance that small children come there.

• Professional Visitors

  • S.2(3)(b): Occupier can expect that person, in exercise of his calling

    • Will appreciate and guard against any special risks ordinarily incident to it

      • So far as occupier allows him free to do so

  • Giliker: essentially, if expert thinks they know best, they will be expected to take the required level of care for special risks their profession means they ought to be aware of.

    • Roles v Nathan [1963]: sweeps suffocate owing to monoxide poisioning which they claim to know about

      • Lord Denning MR

        • There are certain risks, appreciated by the 1957 Act s.(3)

          • Where occupiers are entitled to assume that men of their respective professions will know about and guard against

            • The risks to the sweeps here were special risks

              • But they were risks known by their calling

        • Might be a different result if the stairs of the cellar gave way

          • Because sweeps would not be excepted to know this unless they were warned about them

  • But if specialist uses all due care and skill

    • But still comes to harm

      • Will not be held to have voluntarily have accepted the risks

        • And Occupier will be liable

Warning about the danger

• S.2(4)(a): Mere warning “without more” not to be treated as absolving liability

  • Unless in all the circumstances was enough to enable visitor to be reasonably safe

  • Lord Denning MR in Roles v Nathan [1963]:

    • S.2(4) = attempt to solve problem of Old law =

      • If occupier could just prove that the invitee knew of the danger, or had been warned of it, occupier could escape liability.

        • E.g. only way of getting out of premises was by a footbridge over a stream which was rotten and dangerous,

        • But if occupier put up warning saying: “This bridge is dangerous,” this would absolve occupier of liability

          • even though there was no other way to get out

• Need for Occupier to warn

  • Giliker: Section refers to warning given by occupier (or occupier’s agent)

    • Although if given by someone other than occupier and warning would enable visitor to be reasonably safe

      • This would be taken into consideration in s.2(2) “all the relevant circumstances of the case”

• Need to satisfy “Without more” requirement

  • Warning by itself which could not be taken to make visitor reasonably safe

    • May be taken to be sufficient to discharge the duty

      • But only when combined with some other factor

  • Roles v Nathan [1963]:

    • Lord Denning MR:

      • Suppose two footbridges, one of which was rotten, and the other safe a hundred yards away, occupier could escape liability if put up sign saying

        • “Do not use this footbridge. It is...