#15669 - Occupier's Liability - Tort Law

OCCUPIER’S LIABILITY

Injury due to state of the premises vs injury due to activities on the premises

Can C claim in negligence as well as under the Occupiers’ Liability Acts 1957 and 1984?

• Injury due to the state of D’s premises: no —the Acts replace the CL duty of care in negligence.

• Injury due to D’s activities on D’s premises: Some disagreement here:

  • s.1(1) (both Acts): states the Act replaces the CL duty with respect to “dangers due to the state of the premises or to things done or omitted to be done on them.” This lead Lord Keith in Ferguson v Welsh to suggest that activities came within the scope of the Acts.

  • s.1(2) (both Acts): wording suggests the OLA does not apply to activities. This lead Lord Goff in Ferguson and The CA in Fairchild [2001] to suggest occupiers could only be liable in negligence for activities conducted on their land.

    • Fairchild : Brooke LJ: considered the judgments of Lord Keith and Lord Goff in Ferguson and felt there was nothing in Lord Keith’s judgement to prevent him concluding that the Acts are “confined an occupier's duties to the dangerous condition of his premises, whereas [in Fairchild] C’s injuries were the result of activities being conducted on the premises.”

Prevailing view: D will only be liable under the Acts for dangers arising from the state of the premises; but D will only be liable in negligence, not the Acts, for activities conducted on his land.

Duties in this area

1. Visitors —OLA 1957:

• An occupier will own his visitors, and others lawfully on his land (though not by virtue of using a right of way over his land) a duty to take reasonable steps to see that they are reasonably safe for the purposes for which they are on the land.

2. Non-Visitors —Occupiers’ Liability Act 1984:

• An occupier will owe trespassers on his land (and those using a right of way over the land) a duty to take reasonable steps to protect them against dangerous features of his land, when:

  • He knows or ought to know about the dangerous feature;

  • He knows our ought to know a trespasser might come into the vicinity of that dangerous feature.

  • He can reasonably be expected to offer some protection against that danger.

3. General law of negligence:

• An occupier will own a CL duty to take reasonable care to prevent others from suffering foreseeable harm caused by activities conducted on his property. Normal negligence rules apply.

4. Landlords —Defective Premises Act 1972:

• s.3: vendors and landlords owe a statutory duty of care to ensure “all persons who might reasonably be expected to be affected” by defects in “work of construction, repair, maintenance” on premises. This persists after the property is sold.

• s.4: Landlords have a duty to “all persons who might reasonably be expected to be affected” by “defects in the state of the premises.” This imposes liability where landlords breach their obligations to maintain / repair property.

OCCUPIERS’ LIABILITY ACT 1957

Who is an occupier?

s.1(2): “a duty imposed by law in consequence of person’s occupation or control of the premises.” The Act does not “alter the rules of the common law as to the persons on whom a duty is imposed.”

• Harris v Birkenhead [1976]: C (4) entered a derelict house and was injured. The property had been the subject of a compulsory purchase order by the council, but they were not in possession. CA: a person does not have to be in physical possession of property to be an occupier.

• Wheat v Lacon [1966]: D owned a pub, managed by X. X lived above the pub. C, a paying guest, was killed as a result of the dangerous condition of the stairs. Lord Denning: both D and C were occupiers —an occupier “is a person who had a significant degree of control over the premises to put himself under a duty of care to those who came lawfully into the premises.” Two key points:

  • Occupancy is about control not exclusive possession.

  • Multiple people can be occupiers — C will want to choose D with most money (here D was a brewery and X a (relatively) poor landlord.

Who is a visitor?

A visitor is someone who has express / implied permission to be on the land.

• s.2(6): those who enter the premises “for any purpose in the exercise of a right conferred by law” are visitors, regardless of actual permission conferred by D (e.g. those entering pursuant to a contract).

Implied permission:

• Phipps v Rochester [1955]: C (5) walked across a large area of grassland, part of a building site being developed by D. C fell into a deep trench, which would have been obvious to an adult. Devlin J: children were in the habit of using the land to play and D had taken no steps to prevent them from doing so; as a result, C was impliedly licensed to enter the grassland.

• However, C’s claim was unsuccessful because D was entitled “to assume that parents will not normally allow their little children to go out unaccompanied, he can decide what he should do and consider what warnings are necessary on that basis.” D only had to provide warnings that would be sufficient to alert adults accompanying their children to the danger.

• Harvey v Plymouth CC: the terms of an implied licence can regulate when C will be a visitor and when he will be a non-visitor; can be a visitor for some activities/purposes but not for others.

Authorisation by an employee / subcontractor of D

• Ferguson v Welsh [1987]: D contracted B to demolish buildings. B could employ subcontractors with D’s consent. B employed a subcontractor (C) without D’s consent and C was injured. HL: C was a visitor in relation to B, his immediate employer, but trespassers to the owner of the property (D).

Ceasing to be a visitor

• Tomlinson v Congleton BC [2004]: D occupied a country park containing a lake, in which swimming was prohibited. C dived into the lake, hit his head on the bottom and was injured. HL: once C had exceeded his permission (jumped into a lake) he ceased to be a visitor and became a non-visitor.

• Harvey v Plymouth CC [2010]: D owned land regularly used by members of the public for recreation. C was drunk and ran over D’s land to escape from a taxi without paying and was injured. CA: C was not a visitor — C had an implied licence, created by D’s conduct in allowing the land to be used for recreation. However, the licence was for general recreational activity and extended to normal activities carrying normal risks. The licence did not extend to reckless activities such as running around in the dark whilst drunk; C was not a visitor at the time of the accident.

• It follows that if D expressly/impliedly consents to C entering premises at a particular time, or D limits permission to access a certain part of his premises, then C be a trespasser if he stays longer / access a different part of the property.

Rights of way

• McGeown [1995] C using a public right of way is not a visitor; D doesn’t owe a duty of care to keep the right of way in a safe condition. Such a duty would be an “impossible burden” on landowners.

What are premises? any fixed or moveable structure (s.1(3)). Thus ships/aircraft/cars count.

What duty of care is owed?

s.2(2): “common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

• Note: the duty is not to ensure the premises is safe —not all premises are safe, nor would it be desirable for this to be the case —it is about enabling visitors to be safe.

• The duty extends to omissions to make the premises safe (i.e. allowing it to descend into disrepair).

s.1(3)(b): occupiers owe a duty in respect to visitors’ property this includes “property of persons who are not themselves his visitors” (i.e. covers C who borrowed X’s jacket, which is ruined by D).

Breach of duty: what standard of care is owed?

Regard to all the circumstances

• s.2(4) in determining whether D discharged his duty, “regard is to be had to all the circumstances”.

• ‘Circumstances’ include (not listed in Act, just factors which weigh in standard of care in negligence): (i) likelihood risk will materialise and cause harm; (ii) the seriousness of the injury which could result if the risk materialises; (iii) cost of preventing the risk; (iv) Tomlinson noted the social value of the danger giving rise to the risk.

Implied contractual duty no higher than that required by s.2(2)

• s.5: if C enters D’s premises in exercise of a contractual right, the s.2(2) duty of care may be an implied term of the contract. However, court cannot imply a term requiring a stricter contractual duty.

• Maguire v Sefton [2006]: C was injured using gym equipment. X (contractor employed by D to install/inspect equipment) had failed properly to inspect gym equipment. C entered the gym under a contractual licence with D. Rix LJ: rejected trial judge’s finding the contract contained an implied duty stricter than s.2(2). s.5 means “the content of a contractually implied term, in the absence of contrary agreement, is exactly the same as the duty for which s2 provided”.

Children visitors:

• s.2(3)(a): standard of care depends on “degree of care, and want of care, which would ordinarily be looked for in such a visitor.” Occupiers “must be prepared for children to be less careful than adults.”

• As such, an occupier must do more to protect children from danger on his land than to protect adults.

  • Glasgow Corp v Taylor [1922]: child ate poisonous berries from shrubs that had not been fenced off in a public park. HL: extra steps needed to be taken — the berries were...