Occupiers Liability

Occupiers Liability - Introduction

Where C injured by defective structures or premises Common Law aspect of the tort of negligence Occupiers Liability Act 1957 governs liability of occupier to lawful visitor Occupiers Liability Act 1984 governs liability of occupier to unlawful visitor (i.e. trespasser)

Common Law
Four categories of persons who entered premises Contractual entrants guests in a hotel Invitees common interest eg. shoppers Licensees given permission to enter eg. friends Trespasser entering without permission. Muddled case law Law Reform Committee

Occupiers Liability Act 1957

Covers damage to property as well as personal injury Liability CAN be limited through a notice or in a contract Occupancy duty or activity duty as well?

Who is an occupier?
S1(2) (a person) who would at common law be treated as an occupier Sufficient degree of control over the state of the premises Legal estate or exclusive possession not required Wheat v Lacon & Co Ltd [1966]
- can be 1+ occupier - when granting a licence and retaining access, landlord remains an occupier as retains control

Who is a visitor?
Anyone who would have been an invitee or licensee at Common Law Single test has the occupier given permission to be on the premises? Permission may be express or implied Persons entering by authority of law s2(6) Persons exercising (public) rights of way Implied permission eg postman
Glasgow Corp v Taylor [1922]

Limitations on permission
May be limited in three ways: Certain parts of the premises
Must take reasonable steps to warn visitor that certain parts out of bounds

Certain period of time Certain purposes

When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters. The Calgarth [1927]

Common Duty of Care

The 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 to be there s2(2) OLA 57

Discharging the common duty of care

Factors in deciding whether occupier in breach of common duty of care Same as in common law negligence action PLUS additional specific factors
Extent to which visitor must look after own safety
Children Professionals

Warnings Dangers created by independent contractors

Extent to which visitor must look after own safety

Children an occupier must be prepared for children to be less careful than adults s2(3)(a)
Glasgow Corp v Taylor [1922] Jolley v Sutton LBC [2000]

Very young children should be supervised

Phipps v Rochester Corp [1955] It would not be socially desirable if parents were, as a matter of course, able to shift the burden of looking after their children from their own shoulders to those of persons who happen to have accessible bits of land. Devlin J

Extent to which visitor must look after own safety

Professionals an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so s2(3)(b) Roles v Nathan [1963]

Warnings
Whether occupier has warned of danger is relevant consideration in deciding if duty discharged BUT the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe s2(4)(a) Warning must be in terms comprehensible to visitor Enter at your own risk! No responsibility for any loss or damage on the premises No duty to warn of obvious risks Darby v National Trust [2001] Blackpool and Fylde College v Burke [2001]

Excluding liability
Occupier may limit / exclude liability under OLA 1957 S2(1) imposes common duty of care except in so far as he is free to and does extend, restrict modify or exclude his dutyby agreement or otherwise Exclusion may be by notice or express term in contract governing entry to premises Governed by UCTA 1977 S1(3) and s2 business liability Charities
White v Blackmore [1972]

Damage caused by independent contractors

S2(4)(b) OLA 57 Where visitor suffers damage due to the faulty execution of any work of construction, maintenance or repair, occupier NOT normally liable if in all the circumstances of the case:
It was reasonable to entrust work to IC Occupier took reasonable steps to satisfy himself that IC was competent and Occupier took reasonable steps to satisfy himself that work had been properly done
Haseldine v Daw [1941]

Liability to non-visitors
Common Law Addie & Sons (Collieries) Ltd v Dumbreck [1929]
The trespasser comes on to the premises at his own risk. An occupieris liable only where the injury is due to some wilful act involving something more than the absence of reasonable care. There must be some act done with deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser

Law Reform Committee 1954 British Railways Board v Herrington [1972]

Occupiers Liability Act 1984

Applies to trespassers (and others who outstay their welcome!) Occupier must take reasonable care to see that a trespasser does not suffer injury on the premises No duty in respect of trespassers property

Occupiers Liability Act 1984

S1(3) Duty will be owed if: Occupier is aware of the danger or has reasonable grounds to believe it exists; and Occupier knows or has reasonable grounds to believe a trespasser is in the vicinity of the danger, or may come into that vicinity The risk of personal injury is one against which, in all the circumstances of the case, the occupier may be expected to offer the trespasser some protection

Occupiers Liability Act 1984

Duty may be discharged by warning / taking steps to discourage trespassers from encountering the danger No need to advise of safe way to use the premises Tomlinson v Congleton Borough Council [2004]
It is unjust that the harmless recreation of responsible parents and children with buckets and spades on beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious.

Simonds v Isle of Wight Council [2004]

Defences
Volenti is most important defence expressly preserved in OLA 57 and 84 Contributory negligence also applies See Lecture 8 defences to negligence