#5367 - Occupiers Liability Notes - Tort Law

Who is an Occupier?

• Occupiers Liability Act 1957 – 1(2) – people will be treated as occupier and invitee as at common law.

• Wheat (1966) – D1 lived in D2’s property under a contract allowing them to manage it as a pub but saying they were not tenants. C was a tenant of D1 and claimed for husband’s death after he fell due to the stairs having no light or rail.

Lord Denning – occupier = persons who have a sufficient degree of control over premises. The duty is to all lawful visitors to take reasonable care as is required to prevent injury when D’s control is such that he ought to realise failure to do so may result in injury. More than one occupier can exist. The degree of control decides the extent of the duty.

Lord Morris – both are occupiers and both owe duty, however duty varies. If C were injured by D1’s furnishings D2 might escape but if it was due to D2’s failure to maintain staircase’s structural integrity then D1 might escape.

Who is a visitor?

• 1957 Act – 1(4) – Countryside Act and National Parks Act don’t make a visitor.

5(1) – where contract gives C a right to enter premises the duty D owes in respect of dangers on premises is common law duty where it is due to an implied term.

5(2) – applies to fixed + movable structures as well as land.

• Ferguson (1987) – D contracted for demolition with C. In breach C subcontracted and they employed unsafe system causing injury to X, sub-contractor’s employee. X sued all of them.

Lord Keith – 2(4)(b) means occupier not liable for unsafe systems of a sub-contractor unless he didn’t take reasonable steps to satisfy self of competence.

Lord Goff – fact that occupier may know or suspect contractor to be using unsafe system is not enough for liability in Act or common law for injury to employee even if effect of danger is to render property itself unsafe.

Court – Being a visitor for one D doesn’t auto mean you are for all. Facts must support inference that D permitted entry, not just tolerated it. The inference is what counts, so if it is inferred that he permits entry it doesn’t matter that contract says no sub-contractors.

• McGeown (1995) – C suffered injuries when he tripped on a hole in a public footpath.

Court – person using public footpath does so by right and so cannot be a visitor of the owner.

Lord Browne-Wilkinson – but existence of a right of way not always incompatible with a duty arising to a visitor.

Liability to Visitors:

• 1957 Act – 1(1) - This will replace common law on the duty of an occupier to a visitor.

1(3) – Rules as common law apply to fixed or moveable structures and damage to property not of the visitors.

2(1) – Occupier owes duty of care to all visitors unless agreed otherwise.

2(2) – Duty is to take care as is reasonable in all circs to see visitor is reasonably safe in using premises for purpose invited to.

2(3) – circs include degree of care reasonably expected of visitor(age, job, etc.).

2(4) – in judging discharge of duty regard is to be had to all circs.

2(5) – No obligation to visitor for voluntarily taken risks.

2(6) – persons entering on a right in law treated as having permission.

3(1) – D can’t restrict duty to 3^rd party who have right to enter under contract, by contract. Duty can be extended by contract.

3(2) – this section won’t result in D being liable to strangers to contract for dangers due to faulty execution of work by others than himself/employees if he has taken reasonable care.

3(3) – ‘strangers to contract’ are people not entitled to benefit as a party.

3(4) – Tenancy is a contract when it binds D to allow 3^rd party in.

• Unfair Contract Terms Act 1977 – 1(1) – negligence refers to a breach of an obligation to take care in the contract, in common law or in 1957 Act.

2(1) – you can’t exclude liability for negligent death/injury.

2(2) – you can’t exclude liability for negligent los/damage unless reasonable.

• Phipps (1955) – C fell into a ditch and broke his leg whilst playing on D’s building site. D knew children were problem at site during working hours but no child had ever been caught in this part of the site.

Court – Trench was a danger imperceptible by a child of C’s age since he wasn’t old enough to see necessity of avoiding it. D couldn’t anticipate that this would be a place where little children were sent to play alone. Since a guardian would have seen trench and taken steps to prevent accident D was safe in assuming they would do so. D doesn’t have to take parental duties.

Usually children are licensed to play in large open spaces.

• Roles (1963) – C chimney sweep’s wife who died due to carbon-monoxide when cleaning boiler. Man continually warned + physically removed from boiler by D and an expert. He ignored them.

Lord Denning – Householder not liable – when he invites a specialist to fix a danger he can reasonably expect them to take care in respect of that danger 2(3)(b). If warnings are enough to make visitor reasonably safe then the occupier has a 2(4)(a) defence (so warning that the only access to the property is unsafe is not enough as C won’t actually be reasonably safe – C jumping a wall to get in and finding only one way out).

Court – 2(4)(a) defence made out here, C reasonably safe after warnings.

• Bunker (1969) – C’s employer was sub-contractor to D employed to modify a digging machine. C had witnessed in operation and it was assumed he appreciated the dangers involved in crossing its roller. He was injured.

Court – Occupier will not be absolved of liability for danger causing harm on land just because C knew of it. Breach here.

• Ferguson (1987) – D contracted X to demolish. X broke terms and subcontracted eventually to C who was injured as employee.

Court – s2 duty only relates to visitor’s safety in using the premises. There was no such injury from ‘use’ here. Instead injury resulted from the manner in which C carried out his work on the land, 2(2).

2(4)(b) means that D wouldn’t be liable since it protects from a contractor carrying out work faultily. But if he still fails to take reasonable steps to satisfy himself that the work is competent then possible liability.

• Fairchild (2001) (CA, then overturned on different point) – C suffered from asbestos poisoning after exposure from several different employers.

Brooke LJ – ‘occupancy duty’ in occupier’s liability is not an ‘any activity’ duty, only that which arises other than from C’s activity will give rise to liability. Activity duty is as in negligence, occupier’s duty is in occupier’s liability. Lord Goff in Ferguson correct to say injury must result from use of premises – not the manner in which C carried out his work there.

• GWilliam (2002) – C injured by D1’s negligence in providing trampoline but D1 wasn’t able to pay. C sued occupier, D2, for not ensuring D1 was insured.

Lord Woolf – 2(2) requires D to check if a contractor has liability insurance (a competent D1 would be insured).

Sedley LJ (dissent) – checking insurance not necessary – if it was then the local church would be liable in holding a church fete in the case of any stallholder uninsured acting negligently.

Majority – representation that they had insurance enough, no enquiries needed. [Later cases Naylor, haven’t required to check].

• Harvey (2010) – C fell down a cliff on D’s land whilst drunkenly fooling around.

Court – when local authority has licensed public to use its land for recreation it consented to normal recreational activities, carrying normal risks. This can’t be stretched to any chosen activity by C. Implied license didn’t extend to this, C also not a visitor under Act.

Liability to Non-visitors:

• Occupiers’ Liability Act 1984 – 1(1) – replacing common law rules on duty to non-visitors.

1(2) – occupier and visitor as in 1957 Act.

1(3) – occupier liable to non-visitor for risks if (a) aware/grounds for reasonable belief of danger, (b) knows/reasonable grounds to believe C is in vicinity or may enter it, (c) risk is one which in circs he may reasonably be expected to offer protection against.

1(4) – duty is then to take reasonable care in circs to prevent injury on premises from danger concerned (general neg test).

1(5) – duty may be discharged by warning/taking reasonable steps to warn.

1(6) – no duty in relation to willingly accepted risks.

(6A) – if 2000 Act exercised D not liable for natural feature, walls, fences, etc. except when properly used stile.

(6B) – plants count for 6A.

(6C) – 6A doesn’t prevent duty when D has done something intending/reckless as to the risk.

1(7) – no duty to persons using highway.

1(8) – no liability for loss of/damage to property.

1A – in determining whether s1 duty exists when 2(10 of 2000 Act is exercisable, regard to be had to: (a) existence of that right ought not place an undue burden, (b) importance of maintaining the character of the country, (c) guidance under s20 of that Act.

• Herrington (1972)(pre act) – D’s electric railway line bordered by ill repaired fences but ran through national trust land. C, aged six, climbed through hole clearly used for crossing and was injured.

Court – occupier owes a duty to take steps as common humanity would dictate, to exclude or warn or otherwise, within reasonable practicable limit, reduce or avert a danger. (This resulted in the new Act).

• Swain (1996) – Evans LJ – 1(3)(b) will not include a situation where occupiers ought to have known a trespasser might come into the vicinity of danger. Actual knowledge or shut eye knowledge is the requirement (knowledge equivalent to actual knowledge of risk as a matter of law) rather than knowledge which ‘ought’ to be had.

• Tomlinson (2003)...