#3549 - Occupiers Liability - Tort Law

Occupiers Liability

• Liability under statute

1. Was PI or property damage suffered while C or his property was on the premises occupied by D (1956 Act covers both, 1984 only PI)

• no =no occupiers liability, but may be liable for nuisance or under Rylands v Fletcher

2. Did damage arise from danger associated w/the state of premises?

• no = no occupiers liability

• Liability to Visitors: Occupier’s Liability Act 1957

  1. Was D an “occupier”?

• No statutory definition, apply common law Wheat v Lacon – “does D have sufficient degree of control over premises such that he ought to realize that any failure on his part to use care may cause injury to a person lawfully coming there”

• Wheat v Lacon –D brewers owned a public house run by manager living on d 1^st floor w/ wife. Guest fell down the stairsb/c handrail was too short &no proper lightning. Held manager owed common law duty under 1957 Act but didn’t breach it. D brewer & manager could be occupiers simultaneously, relevant duties dependent on circumstances of occupation.

  • If A owns the premises

1. No-one is there A occupiers

2. B leases B (not A) occupies

3. B has a licence A probably has sufficient control

   • A company can occupy through its servants –Wheat v Lacon

   • Not necessary for occupier to have exclusive occupation – more than one occupier possible for same part of a building – Wheat v Lacon

   • Occupational control is a question of degree – a contractor building the house may have control of the site whilst the guy fitting a mirror might not

   1. Was C a “visitor”?

• “Visitor” = a person whom the occupier has given express or implied permission to enter

• invitees – a person invited onto the premises

• licensees – someone who merely had permission to enter the premises, express or implied

• allwho entered premises in exercise of a right conferred by law (s1(6))

1. firemen fighting fire

2. policeman executing a search warrant

3. public/private right of way is not a visitor

• McGeown v Northern Ireland Housing Executive (but private right of way can give rise to duty under OLA1984) –a person tripped on a path owned by local housing authority not maintained properly. The path was a public right of way so OLA didn’t apply.

• Where a person entered under contract terms, a term can be implied that duty of care is owed to him (s5)

• Implied licenses: prior to 1984 Act, children were main beneficiaries but could also apply to adults (e.g. where occupier did nothing for years to deter people from walking through his land)

• A person can cease to be classed as visitor if he exceeds the terms of his permission “when you invite a person into your house to use the staircase, you don’t invite him to slide down the banister”

• Harvey v Plymouth City Council [2010] – C drunk; out w/friends, immediately prior to accident was running away from taxi in order to avoid paying; ran over grassed area onto piece of land owned by LA; fell through gap in bushes, landing on concrete, suffered PI, incl. BD; sought compensation incl. loss of wages, arguing breach under OLA 1957. Court held C was a lawful visitor & LA had complied w/legal duty to ensure premises were safe b/c impliedly allowed people to come onto land in order to carry out normal activities but not to act in a reckless manner

• Occupier may withdraw his permission but tenant will have reasonable time to leave b/f he becomes a trespasser but C must be made aware he exceeded his licence

• Occupier may permit a person to be in some parts of the premises but not others Cisn’t covered if injured going to a part no-one reasonably expected him to go (e.g. wrong side of railings at train station)

• Independent contractors - implied term that occupier owes entrant the common duty of care

3. What duty of care did D owe?

• “Common duty of care” - D must “take such care as is reasonable in all the circumstances of the case to see the visitor will be reasonably safe in using the premises for the purpose of which he’s invited/permitted to be there – s2(2)

• UseBolton v Stonetest – cost of precautions compared to risk

• It is the visitor, not the premises, which must be safe (thus greater duty owed to the blind etc.)

• Special cases – s2(3)

1. Children are less careful than adults – s2(3)(a)

Butoccupier is entitled to assume behaviour of v. young children will be supervised by a resp. parent, in which case must provide a warning sufficient to alert the guardian

• Phipps v Rochester Corp – 5 y/o child wandered on unfenced building site near home, held to be implied licensee. If was so young that degree of supervision by adult ought to be expected, then only a warning sufficient to alert the guardian is needed. Unless there’s a reason to expect unaccompanied child to enter the premises, there’s no duty to warn of dangers that would be obvious to a guardian

• Bourne Leisure v Marsden(2009) - Cs took small children to holiday park, 2 y/o drowned in the pond. There was a path &fence but kid climbed over it. Held: no breach as it would be impractical to fence every source of hazard + clearer warning wouldn’t make a difference.

• Policy - Devlin – “not socially desirable if partents were able to shift the burden of looking after their children from their own shoulders to those with accessible land”

• Look at age of children and nature of premises in seeing if this assumption applies

2. Must take precautions against children being attracted to allurements

• Jolley v Sutton LBC – A boat in dangerous condition constituted an allurement to a14yr old

• Higher standard if there’s an allurement

• Big children are treated like adults, but in Jolley v Sutton it was proposed they are also more likely to encounter danger and less likely to appreciate it than adults.

3. May expect that a specialist, i.e. person in exercise of his calling, will appreciate and guard against any special risks normally incident to it, so far as the occupier leaves him free to do so – s2(3)(b)

• Roles v Nathan– 2 chimney sweepers given appropriate info about defective boiler, occupier not liable for their deaths b/c, had they heeded warnings & acted w/due care, would have been safe.

• If worker is injured, despite taking due precautions, occupier will still be

4. If A contracts w/occupier to use premises (and permit TPs to use them), occupier can’t by contract reduce his obligations to visitors who are strangers to it to the level below that imposed by common duty of care

• Protects TP having rights excluded and not knowing about it

4. Did D discharge his common duty of care?

1. Occupier may not be liable if he entrusted work to a competent independent contractor – s2(4)(b)

• Not liable ‘w/out more’ for dangers created by contractors in execution of any work of construction, maintenance or repair

• Requirements for discharge:

1. Reasonable to entrust work to an independent contractor

2. Occupier took reasonable care to see that contractor was competent; and

3. If the character of the work permits, he took reasonable care to check the work was reasonably done

• Where work is especially complex (e.g. construction of a large building) the occupier may have to cause the independent contractor’s work to be supervised by a properly instructed professional

• NB: any liability arising from the manner in which the contractor works (as opposed to the condition he leaves the place in) will be normal negligence (not OLA); E.g. sawdust in someone’s eye

• Ferguson v Welsh(1987) - LA contracted S to demolish premises, prohibited subcontracting w/out permission but S did subcontract to 2 brothers who didn’t work safe. C was offered a job by W & seriously injured. Held LA invited F on the premises as it put S into occupation and ‘put him’ in position to invite W (questionable b/c clear prohibition!) + broad interpretation of occupier duties under s2(4)(b): where occupier knows or has reason to expect contractor’s employing unsafe work practice, there may be duty to take steps to see that system was made safe

• Maguire v Sefton MBC- LA ran a gym, had machine inspected by expert who said was fine but wasn’t,C injured himself; sued for contractually based occupiers liability of higher strictness than common duty. Held s5 did away w/ previous common law distinction b/w occupier's liability towards a non-contractual visitor and visitor entering under contract. S entitled to rely upon P as expert to perform proper inspection of machine &that it had employed experts and had taken proper steps by entering into the service contract so as to meet its duties under the Act. No liability under the Act.

2. Warnings

• Only absolves the occupier from liability if it was enough to enable visitor to be reasonably safe (s2(4)(a))

1. Was reasonable notice given?

• Not reasonable if someone is blind, can’t read/speak English, or if it’s dark outside and C will be unable to see the notice

2. Does the notice enable him notified to be reasonably safe?

• Denning in Roles v Nathan – a dangerous bridge w/a warning which is the only way out of a building doesn’t discharge the duty. If there are 2 bridges (one safe, other dangerous), warning will be sufficient

• White v Blackmore - W attended a motor race w/ family. At entrance to the field a sign “warning to the public, motor racing is dangerous. All liability for death, PI etc. excluded to spectators.” W killed watching one of the races. Held chairman of the motor club didn’t owe W a duty under 1957 act. Notice was effective to exclude it

• would have been decided differently due to UCTA 1977, whereby a company cannot exclude liability for death or personal injury w/a sign

• May not...