#16159 - Occupier's Liability - Tort Law

Duties owed by occupiers 3

Occupiers’ Liability to Lawful Visitors - The Duty imposed by OLA 1957 3

Problem Question Structure 3

I - Who is the occupier? 4

*Wheat v Lacon [1966] AC 552 4

AMF International v Magnet Bowling [1968] 1 WLR 1028 5

II - Who counts as a lawful visitor? 5

A – Ostensible Authority 5

Ferguson v Welsh [1987] 3 All ER 777 5

B – Implied License 6

Edwards v Railway Executive [1952] AC 737 7

Contrast Lowery v Walker (1911) 7

Harvey v Plymouth City Council [2010] EWCA Civ 860 7

C – Ceasing to be a visitor 7

Tomlinson v Congleton BC [2004] 1 AC 46, HL 8

III - What risks is an occupier responsible for? 8

A – Activity vs Occupancy 8

Ogwo v Taylor [1988] AC 431 8

Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052, at [113]-[155] (NB CA) 9

Tomlinson v Congleton BC [2004] 1 AC 46, HL 9

Keown v Coventry Healthcare NHS Trust [2006] 1 WLR 953 10

B – Obvious Risk/continuation of the activity/premises distinction? 10

Tomlinson v Congleton BC [2004] 1 AC 46, HL 10

Portsmouth Youth Activities Committee v Poppleton [2008] EWCA Civ 646 11

C – Risks created by independent contractors (duty to ensure that IC is insured) 11

Maguire v. Sefton Metropolitan BC [2006] 1 WLR 2550 11

Compare: Gwilliam v West Herts NHS [2003] QB 443 12

and Naylor v Payling [2004] EWCA Civ 560 12

D – Warning 13

Roles v Nathan [1963] 1 WLR 1117 13

IV – Exclusion of liability 13

Ashdown v Samuel Williams [1957] 1 QB 409 (NB decided before UCTA 1977 – BUT – important on ‘conditions’) 13

White v Blackmore [1972] 2 QB 651 (NB decided before UCTA 1977) 14

Occupiers’ Liability to Trespassers - The Duty imposed by the Occupiers’ Liability Act 1984 15

Problem question structure 15

Donoghue v Folkestone [2003] QB 1008 16

Keown v Coventry Healthcare NHS Trust [2006] 1 WLR 953 16

Tomlinson v Congleton BC [2004] 1 AC 46, HL 17

Duties owed by occupiers by virtue of common law negligence 17

Liability of non-occupiers 18

*Murphy v Brentwood DC [1991] 1 AC 398 (Local authority) 18

Hoyano, ‘Dangerous Defects Revisited by Bold Spirits’ (1995) 58 MLR 887 19

General Problem Tips:

• First identify all possible claimants and defendants

• Don’t think too early on that a question is necessarily about x (ex. occupiers liability)

• “Because the College, as owner, clearly has sufficient control for the purpose of Wheat v Lacon, they are an occupier” never just say “it is clear” – always back it up

• The more specific a warning is, the more likely that the court would accept that it would in all circumstances be reasonable to make the person safe (but beyond this it is just a question of fact)

• 1957 Act says can be excluded “insofar as” one is free to do so – suggests that the Ashdown test is carried into the act don’t just say that they are free to do so.

• Does the noticeboard appear to be entirely directed at students, or at visitors? This might be relevant to the question of whether it has been sufficiently brought to the attention of the visitor.

• Notices are binding on children because children are not trespassers because they have a license, and if they have a license then the license can have conditions attached to it (and because in the same way that a child may not understand limits attached to their license, in the same way they can’t think they have an unconditional license either)

• Because the notice is inside the walls, then until they see the notice they have an unconditional license

• s64(4) CRA 2015‼‼‼‼ On how prominent the sign has to be but the problem is that this provision only applies to that particular section so is irrelevant.

• Trader “acting relating to the purposes of business” (s2) “acting” means letting the specific visitor in, or does it mean occupying the premises? Does it mean putting up the notice? If the latter, then if it is expected to be seen by a consumer, is that enough? If we don’t define a “trader” more generally, then what is the role of s66 exception?

  • The definition in s2 is “relating to the purposes of business..” whereas in s66 it’s “within the purposes of business…” so it appears broader.

• 3 elements to show for s66(4):

  • Access for recreational purposes

  • Person suffers loss or damage because of the dangerous state of the premises

  • Recreational purposes were not within the

• s65(2) (excluding volenti) solves the problem that the CRA 2015 appears to prohibit only exclusions and limitations of liability and not disclaimers of duty – you can’t get out of the duty

• Articulating the test is much more important than applying the test to the instant case (ex. the test for visitor/trespasser = whether the occupier

• When questions of fact: “unless special facts are proved, there is likely to be a duty”

• For Delia: Negligence duty of care under Haynes v Harwood (because in a rescue setting we don’t treat as breaking the chain of causation if there is negligence with respect of Jane) – or there might be a duty only to the rescuer (ex. D is putting on a show where it looks like people are being injured though they are not, but that induces people to come and try to rescue these people)

• Can Jane be sued? If you (negligently) put yourself at risk and it is foreseeable that someone might come and rescue you, then you might be liable.

1. Cite s2 OLA 1957

2. Is there a duty in the first place with respect of the particular injury suffered?

   1. What are premises? (S1(3))

   2. Who is an occupier? (Wheat v Lacon)

   3. Who is a visitor?

      1. Someone invited or permitted to enter (s1(2))

         1. Did D invite or permit C to enter?

         2. Did someone who had the ostensible authority to issue such an invitation on D’s behalf invite C to enter? (Ferguson v Welsh)

         3. Is D estopped from denying that C entered as his visitor because he (or someone with ostensible authority to act on his behalf) reasonably led C to believe that he had invited or permitted C to enter?

         4. If either (a), (b), or (c) is true, did C cease to be a visitor by using the premises for a purpose other than that for which he is invited or permitted?

      2. Persons on the premises in the exercise of a right conferred by law (s2(6)

         1. Excludes those entering in exercise of rights conferred by the Countryside and Rights of Way Act 2000 or National Parks and Access to the Countryside Act 1949 – these come under the 1984 Act (s1(4))

   4. Did the danger arise due to the state of the premises?

      1. S1(1): “state of the premises or things done or omitted to be done on them” (Fairchild (CoA), Tomlinson v Congleton) this is the same for both the 1957 and 1984 Acts

      2. Activity or occupancy danger distinction

         1. Was the injury suffered by reason of dangers due to the state of the premises?

         2. Were there children, and does this influence the characterization?

3. Was the duty discharged or excluded?

   1. Discharge by making the premises reasonably safe (warning or taking steps to remove the danger)

      1. Warning: must be enough to enable C to be reasonably safe (s2(4)(a))

         1. [NB that the 1984 Act (s1(5)) says something slightly different – it is enough to “give warning of the danger concerned or to discourage persons from incurring the risk” – Roderick thinks that the difference stems from the fact that a trespasser can always back away and leave whereas a visitor may have no choice but to stay]

      2. Children: must be prepared for children to be less careful than adults (s2(3)(a)) (but can also expect children to be accompanied by parents)

         1. Phipps v Rochester (C fell into trench, held that D did not breach his duty by doing nothing because he could have expected C to be accompanied by parents)

         2. However, Roderick thinks that what can be expected nowadays might be different to what was expected in 1955 [though I think if anything the expectation that children be accompanied is higher nowadays than it was in 1955 because of the proliferation of cars, criminals…]

         3. Thus Bourne v Marsden (2009): D, owners of a caravan site, did not breach their duty of care by doing nothing to warn the parents of a 2yo boy of the presence of a pond on the site, in which he drowned, because it would have been obvious to the parents that it would be dangerous to let a 2yo wander around the site unaccompanied.

      3. Known risks: no duty to take special steps to protect a visitor against a risk that the visitor knows about and can easily avoid (s2(3)(b) and s2(4)(a))

      4. Obvious risks (Tomlinson v Congleton)

      5. Accepted risks: common duty of care does not require an occupier to protect visitors against risks willingly accepted by the visitor (s2(5))

         1. ex. Simms v Leigh Rugby Football Club: D, rugby club, did not owe C, player, a duty to take care to ensure that C was not injured by being thrown against the concrete barrier around the pitch, which barrier was installed in accordance with the byelaws of the game as laid down by the Rugby Football League

         2. However, scienter (knowing) is not volens – knowing will not be acceptance if C had no choice but to enter the premises (ex. Burnett v British Waterways Board – employee was injured while on premises where he knew there would be that kind of risk, but he had no choice but to stay there)

      6. Delegation (s2(4)(b))

   2. Disclaimer (expressly allowed by s2(1) OLA 1957 – can be by agreement “or otherwise”)

      1. Attachment:

         1. “By agreement” = contract

         2. “Or otherwise” = implicit reference to Ashdown v Samuel Williams (merely notifying a visitor that you’re not accepting any responsibility for their safety is effective) – appears from the case that three cumulative conditions must be made out:

            1. C saw the notice

            2. C understood the...