Supervision 4: Occupiers Liability
General
types of entrants:
- those who legal right to be on the land regardless of any permission
- those who entered with neither permission nor a legal right to enter ("trespassers")
Visitors
this act provides that the occupier of premises owes a common duty of care to all visitors.
the duty is imposed on the occupier of premises The Act itself applies to any fixed or moveable structure, including any vessel, vehicle or aircraft.
the occupier of premises is the person who has legal right of control over it.
Wheat v E Bacon & Co (1966): Lacon & Co owned a pub which they hired a manager to run. The premises included a private flat, which the manager was entitled to occupy and use for paying guests. One guest fell down an unlit defective staircase. Held: As Lacon & Co had the legal right to control the flat, they were its occupier, and so were liable in respect of the state of the premises.
Harris v Birkenhead Corpn (1976) -> as part of a slum clearance scheme, Birkenhead Corporation served a notice on a house, requiring the tenant to vacate the property. The tenant did so: however, the corporation did not follow its usual policy of bricking up such premises. Harris, 4.5, entered the premises and fell out of a top story window. Acting through her mother, she sued the tenant, the landlord and the corporation. Held: only the corporation was occupier and therefore liable to harris.
Collier v Anglian Water Authority (1983): Collier was injured while walking along a seaside promenade, the injury being attributable to the state of repair of the promenade. The promenade was controlled jointly by the water authority, as it formed part of the areas sea defences , and the local authority, who swept up accumulated knowledge. It was held that, as Colliers injuries were attributable to the state of the promenade rather than to rubbish, it was the water authority which was liable, not the local authority.
Visitors
the most obvious case is where the person was given permission. However, some have implied permission. For instance, anyone who wants to talk to the occupier. If the occupier does not want that then he needs to make this clear in advance.
person with the right to enter
OLA states that anyone who has the right to enter the premises must be treated as a visitor.
if the defendant carelessly starts a fire and the the firmans burned while putting it out, the defendant is liable for the claimants injuries. (ogwo v Taylor), 1988
the standard of care
the burden of proof is on the claimant who has to demonstrate that the standard of care has been broken.
Simms v Leigh Rugby Football club
In the course of a rigby game, Simms was tackled, breaking his leg, allegedly after coming into contact with a concrete wall over seven feet from the touchline. Held: even if he in fact hit the wall, this was such an unlikely event as to be unforeseeable by the occupier of the ground, and so it was not liable to him.
Ward v Tesco stores
Ward was injured when she slipped on some yoghurt spilled on the floor of Tesco, where she was shopping. Tesco gave evidence that the floor was generally brushed six times a day. and that staff were instructed to deal with the spillages if they saw them. There was sufficient evidence of negligence, and in the absence of explanation, Tesco would be held liable.
Tedstone v Bourne Leisure Ltd: Tedstone was injured when she slipped on a puddle of water near a jacuzzi on Bourne's premises. There was evidence that Bourne knew that some areas held water and needed repair. Held: it was clear that the water came from an unusual spillage which could only have happened one or two minutes before Tedstone's accident. No conceivable reasonable system could have dealt with the spillage in the time available and accordingly there was no liability.
care expected from visitors
the visitor is expected to exercise due care
the occupier must be prepared to expect less care from children
workers should be expected to know the risks hen entering the premises.
Roles v Nathan
a claim by chimney sweeps against a householder for dangers arising from fumes was not available
no blanket defence though. Where a claimant carelessly starts a fire on it premises and and the claimant is injured fighting the fire, the defendant cannot defeat the claim by merely saying that the risk is inherent in the job of a firefighter.
warnings and exclusions
general principle is that if the occupier gives a warning he is not liable
Titchener v British Railways Board
defences
consent: the defendant may argue that the claimant consented to run the risk (s2(5)). Agreements of that sort usually have to be express, though in extreme cases the claimant may be held to have agreed impliedly to run a risk which was very obvious. 🔒
causation: the defendant ma argue that the claimants decision to ignore the risk was unforeseeable, or at least broke the chain of causation and relieved the defendant of responsibility. for the consequences which followed. this argument is unlikely to succeed unless the claimants conduct was unrational 🔒
contributory negligence: the defendant may argue that the claimant is partly to bale for the accident, though the failure to heed the warning. The effect if this argument is only to reduce the claimants damages, not eliminate the claim entirely. and so it does not take extraordinary strong facts to back it up. 🔒
Sayer v Harlow UDC: Sayers became trapped in a public laboratory because the cubicles lock was defective. after shouting for help for 10 or 15 minutes, she attempted to climb out, and injured herself in the process. Held: the occupiers of the premises were liable for the injuries, though the damages would be reduced by 25% for contributory negligence.
exclusion of liability: he may argue that it resulted in the exclusion of liability.
Liability of occupiers to trespassers
duty #
duty is only owed if three conditions are satisfied
(a) the occupier knows of the danger, (b)the occupier knows the trespasser is, or may in the future, come into the vicinity of the danger, or has reasonable grounds to know it (c) it is reasonable to expect the occupier to offer some protection to the trespasser
example: where on the 27th of december the claimant dives off a slipway and into a harbour, it was held that the harbour owner owed no duty: it was unforeseeable that anyone would trespass this way in winter. while in sumer it was entirely foreseeable (Donoghue v Folkestone Properties Ltd)
rather than the general duty to visitors under the 1957 act, the duty under the 1984 act is much narrower.
standard of care under trespass
unlike the general duty to visitors, the duty to trespassers is specific to the danger.
Liability of occupiers to trespassers
until recent years, the general position was that no duty was owed to trespassers, unless the occupiers recklessly injured a trespasser they knew to be present
the decisive brea cam e in 1972 when the HL held that there was a duty owed to trespassers. This was not the common duty of care in the occupiers liability Act 1957 but a duty of common humanity which provided for bare minimum of care
British Railway Board v Herrington
this duty of restated in the occupiers liability act of 1984, which is now the governing legislation.
Ratcliff v McConell (1999)
Ratcliff an his friends decided after a night of drinking to have a swim int he college swimming pool. by diving into the water he hit his head. It was held that the danger should have been apparent for any adult. Additionally, ratcliffe had consented to the risk.
Tomlinson v Congleton Borough Council
the occupiers of a disused quarry erected notices put up many sign saying no swimming etc. . Tomlinson, aged 18, dived from a standing position and was rendered tetraplegic. It was held that his injuries were not caused by the state f the premises or an conduct of the occupiers, but by his own misjudgment. There was been no liability, even if he had been a lawful visitor to the lake.
Warning and exclusions
most of the complexities are the same as for visitors.
- visitors are those who have been given permission to enter the land
Liability of non-occupiers to those on the land
if the claimant is lawfully injured while on the land and wishes to sue the defendant, who is no the occupier, but is ins some sense responsible for the premises. the claimants action against the contractor is the standard negligence action against those who engage in dangerous activities.
the carelessness builder is liable even if the premises have since changed
Rimmer v Liverpool City Council
shortly after moving into his new council flat, the tenant complained of a particular dangerous panel of breakable glass, which he argued was a danger to his young son. He was told that it was a standard installation and could not be changed. Nineteen months later, his son was injured by putting his hand through it. Held: the council was liable for negligence, in its capacity as designer and builder of the flats.
land lords
at common law it used to be almost impossible to sue landlords. Today , action can be maintained in two different situations:
Land lord created the danger
Landlord is under a duty to repair.
Land use and the environment
general
traditionally it protected the rights of the individual rather than the environment.
trespass to land
the defendant commits trespass by an unjustified intrusion onto the claimants land. the claimant does not need to prove loss or damage and the intrusion may be trivial
Below and above
the claimant may sue for an intrusion at any hight or depth above or below the land.
Bernstein v Leigh v Skyviews and General
Skyviews took aerial photographs of Bernstein's mansion and Bernstein sued them in trespass. The action failed because it could not be proved that the plane had been on the ground and II bernstein had no direct use for it. iii) sky views were protected by statute.
whose land?
if the land is subject to a lease, it is the tenant, not the landlord, who is legally in possession and can sue for intrusions.
need the defendant be at fault?
no defence that the defendant id not realise that it was unlawful. also there is no defence if the defendant gets lost on the land.
however, if he is dragged involuntary onto the land then this is a defence.
defence exercise
exercise of the defendants own property rights, such as private right of way
putting right some wrong which is the claimants responsibility, such as by abatement of nuisance
statutory authority to enter the claimants land, such as under the Police and Criminal Act 1984
public right, such as the right to walk the highway
permission
necessity
courts are not very consistent in their treatment of necessity.
general comments:
simply because the defendants has the right to walk the highway going over the claimants and does not entail a right to spy on the claimant -even if the defendant keeps walking as he spies (Hickman v Maisey)
if the defendants act is initially defendable and then becomes a crime it is treated as a crime all along
the claimant cannot sue if he was given permission to be on the land. Permission can be implied from circumstances. such as walking on the land and knocking on the front door. the defendant becomes a trespasser if he acts in a manner not permitted by the terms of the licence
Hurst v Picture Theatres (1915) -> during a cinemaHurst sitting in the audience, w as suddenly and unjustifiably told of one of the staff to leave.. When Hurst refused he was forcibly rejected. Held: he could sue in assault.
extreme circumstances are needed before the defendant will have the defence of necessity.
Example: ned for shelter, no matter how desperate cannot be given because it would open to abuse -> Southwark London Borough Council v Williams)
remedies
the claimant may recover any financial loss proved to flow from the trespass. if the defendant took over property -> the claimant may also recover a reasonable rental for the period.
Private nuisance
General
a private nuisance consists of an unjustified interference by the defendant in the claimants enjoyment of land. the remedy usually consists of an award of damages.
it is not always clear where nuisance ends and trespass begins. It was once held that if the defendant lets a pile of rubbish fall onto the claimants wall, this is trespass (Gregory v Piper, 1829) but the modern position is unclear.
the test is usually one of directness -> if there is a cricket match, and balls are hit over the boundary, this is nuisance, if anyhthing (established in Miller v Jackson, 1977)
nuisance may take many forms. Maybe the claimants land has been physically damaged, say by emission of poisonous fumes from the defendants factory. Nuisance tends to have continousou sources of annoyance.
Balancing the rights of the parties: relevant factos
General
the courts needs to balance and assess whether the line has been overstepped the line which the court retrospectively draws. The court usually asks the question whether the defendant acted reasonably in the view of the harm to the client.
no definite account of which activities constitute nuisance beyond saying that the defendants behaviour must be unreasonable in view of the damage it does to the claimants interest.
how severely did the defendant hurt the claimant?
seriousness of th injury is a major factor in the balance
both extend and its duration. Example: if the defendant temporarily delays in removing of manure, rendering nearby conditions unpleasant might not amount to nuisance, even though permanently (Swaine v Great Northern Rly)
some judges speak of a continuing state of affairs before action will lie in nuisance -> it is hard to see why this should be the case. A state of affairs can be discovered in retrospect. In Spicer v See (1946) where fire in the defendants house spread to the claimants and damaged it, the defective state
it is sometimes also held that private nuisance requires material damage to the claimants property, but anything serious enough to constitute a nuisance is likely to have an effect on the value of the property.
What was the type of injury?
it is no longer realistic (if it ever was) to draw a very sharp line between physical injury to property and merely aesthetic offences. However, the law lord who drew that distinction was right in saying that the claimant will have an easier time in private nuisance if physical damage can be proved.
How valuable is the defendant activity
example: Hunter v Canary Wharf: Several hundred claimants complained that the canary wharf building development had created clouds of dust which deposited itself on their property, and that Canary Wharf Tower, the centerpriece of the development, interfered with their TV reception: Held: the dust was actionable if it could be shown to have damaged claimants property but the interference with TV reception was not actionable. The reason why they rejected the claim with the TV was because it is analogous to ruing the claimants view, which has always been held as non-actionable
the defendant has a better chance if his activity is in some way useful for the public. there is scope for disagreement of what constitutes are valuable activity.
Miller v Jackson: the Millers complained that cricket balls from matches organised by Jackson often landed in their garden, and that a few had done damage to their house. Held: an actionable nuisance had been committed and the Millers were entitled to damages and an injunction to prevent repetition that damages could be awarded against the public but it would be against public interest for an injunction to be issued. (by Lord Denning MR) that the social utility of cricket outweighed the inconvenience to the Millers
What sort of locality did the event happen in?
generally: the less pleasant the area in which the alleged nuisance occurred, the worse must the defendants behaviour if it is held to be a nuisance
Murdoch v Glacier Metal Co: Murdoch claimed that the nighttime ´noise from Glaciers factory wa a nuisance.Held: the court had to take into account the character of the neighbourhood. Given that the factory was based on an industrial estate and was not the only major source of noise -> no action in nuisance was established.
Laws v Florinplace: Laws complained of the opening of a sex shop and cinema club by Florinplace, in premises close to his home. he relied particularly on the adverse effect on property values and the attraction of undesirables to the previously placid residential area. Vinelott J held that it was arguable that nuisance had been established and restrained Florinplace from continuing his activities, pending full trial.
How sensitive is the claimant?
a claim may be rejected that the claimant is unusually sensitive to the defendants activity. Unusually sensitive claimants are not protected even if the effect of the defendants activities is catastrophic.
Robinson v Kilvert: Kilvert heated his premises to assist him in his trade of making paper boxes. Robinson, who occupied the floor above complained that the heat affected the brown paper he warehoused there, drying it and considerably reducing its value. Held: activities which would not injure ny but the most sensitive go trades were not actionable as nuisances
did the defendant set out to hurt the claimant?
conduct that might be unexecptionable in normal circumstances might be a nuisance if intentionally used to provoke, annoy or harm the claimant.
Christie v Davey (1893) -> loud domestic noises and Hollywood Silver Fox farm v Emmett -> shooting rabbits near the claimants farm and disturbing his stock.
Who can sue?
the traditional view
others with no property right may not sue, regardless of how good their right might be on the land such as the wife of the tenant.
this traditional view has been confirmed in Hunter v Canary Wharf
it is usually considered that the claimant can only complain of private nuisance if the claimant has either possession of the land or has a property right in it. those with subsidiary property rights can also sue if their interest is affected.
new attempts to relax this requirement
Khorasandjian v Bush: the clamainat complained that the defendant had threatened her with violence, followed her about and harassed her in person and over the phone. She sought an injunction to prevent repetition. The defendant argued that this could not be nuisance because she did not own the property at which she was harassed: she lived at home with her parents-
The CA held that the claimant may sue despite this objection. However, the HL in Hunter v canary Wharf held that this was wrong. the law today would almost certainly catch the defendant on harassment but as to the tort of nuisance the defendants argument was perfectly correct.
European convention on HR
a potentially more successful argument is based on Art 8 of the European convention of Human Rights where a claimant asserts a right to respect for private family life and home. it differs as it focuses on the claimants home and not the property in question. it also probably represents a more demanding standard than nuisance: it is a strong thing to say that the claimants human rights are infringed.
article 8 was a factor leading to a ruling that noise from a military airport was a nuisance actionable by those living nearby (Dennis v Ministry of defence) And it has been held to be arguable that the convention give a right of action to children living on land even though they have no right of action in nuisance.
Must the claimant prove that the defendant was negligent?
it is sometimes held that liability in private nuisance is strict and is therefore quite different from negligence liability, which requires proof of fault.
it is absolutely true that the defendant may blunder into liability for private nuisance through ignorance of law, or through practical inability to see the laws standard of fault.