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Occupiers' Liability I (Background (Two statutues (Occupiers'…

- - - - When to claim under statute rather than common law
        
        Occupiers' Liability Act 1957
        
        S1(1) The rules enacted by the two next following sections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them
        
        S1(2) The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a person's occupation or control of the premises
        
        Revill v Newbery (1996)
        
        Ogwo v Taylor (1988)
        
        Tomlinson v Congleton (2003) - state of the premises not activity on premises
        
        Fairchild v Glenhaven (2002)
- - - - Express permission or licence - Wheat v Lacon - limited by area, time and purpose (see below)
    - - S5(1) Where persons enter or use, or bring or send goods to, any premises in exercise of a right conferred by a contract with a person occupying or having control of the premises, the duty he owes them in respect of the dangers due to the state of the premises or to things done or omitted to be done on them, in so far as the duty depends on a term to be implied in the contract by reason of its conferring that right, shall be the common duty of care
      - Maguire v Sefton MBC (2006)
    - - S2(6) For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have permission or not
      - Examples
        
        Police with warrant - Snook v Mannion (1982)
        
        Gas board officials
        
        Fireman attending a fire
        
        Public entering recreation grounds with rights guaranteed by law
        
        Other officials with statutory powers
    - - Implied permission
        
        Lowery v Walker (1911) - public had been using shortcut over land for 35 years - held to have implied licence - note was decided before OLA 184 when trespassers not owed positive duty of care
        
        Edwards v Railway Executive (1952) - spot on railway used as shortcut - defendant repeatedly repaired fence - held to have done enough
        
        British Railway Board v Herrington (1972) - duty of "common humanity" - even with trespassers
    - - Glasgow Corporation v Taylor (1922) - child ate poisonous berries from bush - liability established - should have been fenced off
      - Jolley v Sutton LBC (1988)
      - Keown v Coventry Healthcare (2006)
    - - The Calgarth (1927) - "when you invite a person into your house to use the staircase, you do not invite him to slide down the bannister" - per Scrutton LJ
      - Geary v JD Weatherspoon (2011)
      - Pearson v Coleman (1948) - child in animal enclosure no signs or banners indicating was a private area so considered licensee not trespasser
      - Darby v National Trust (2001 - sign saying no boating or bathing in pond not clear enough and not near area - need to be clear as to areas and location of sign must be appropriate
    - - R v Smith and Jones (1976) - stole televisions from father's house - invited to visit, not steal - can also use The Calgarth here
      - Tomlinson v Congleton (2004) - made clear lake to be used for canoeing, fishing and windsurfing only - by swimming he became a trespasser
      - Harvey v Plymouth (2010) - implied permission does not extend beyond scope of activities for which given
- - - - Control test
        
        Wheat v Lacon (1966)
        
        Lord Denning divided occupiers into four categories
        
        If LL doesn't live on property, then tenant is an occupier
        
        If LL retains some part of the premises, they are the occupier of those parts
        
        If LL issues a licence they remain an occupier
        
        If occipier employs an independent contractor they generally remain responsible
        
        "Wherever a person has a sufficient degree of control over the premises that he ought to realise that any failure on his part to use case may result in injury to a person coming lawfully there"
        
        Bailey v Armes (1999) - boy climbed on flat roof above supermarket and adjacent to defendant's flat - neither found to have sufficient degree of control
        
        Based on occupancy and control, not ownership - immediate supervision and control and power of permitting and prohibiting entry
      - Multiple occupiers
        
        Wheat v Lacon (1966) - not necesary to have entire control, just some degree
        
        AMF International v Magnet Bowling (1968) - with independent contractors owner still usually regarded as sufficiently in control, but contractor may be in sufficient control of working space and owe visitors a duty of care - here contractor also held to be occupier of whole building even though part he was working on was separated by a screen
        
        Furmedge v Chester-Le-Street (2011)
        
        Ferguson v Welsh (1987) - claimant may be a visitor to one occupier and a trespasser to the other - may also be responsible for different parts or dangers
    - - S1(3)(a) - The obligations of a person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft
      - Wheeler v Copas (1981) - premises included ladder
      - Furmedge v Chester-Le-Street (2011)
- - - - Standard of care is objective test - take into account any personal characteristics which might affect standard - Haley v London Electricity Board (1965)
    - - Child visitors
        
        S2(3)(a) An occupier must be prepared for children to be less careful than adults
        
        Perry v Butlins (1997) - greater care may be expected in areas where it can be anticipated children will be less well supervised
      - Responsibility of parents
        
        Phipps v Rochester (1955) - occupier entitled to assume child is under parental supervision
        
        Simkiss v Rhonda (1983) - not reasonable to hold defendant to higher standard of care than reasonably prudent parent - entitled to assume that father would warn child of obvious danger
        
        Marsden v Bourne Leisure (2009)
    - - S2(3)(b) 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
      - Roles v Nathan (1963) - normal risks associated with job - should know how to avoid
      - Eden v West (2002)
      - Moon v Garrett (2006)
      - Lough v Intruder Detection (2008) - risk must be one that independent contractor expected to know about and guard against, i.e. incidental to profession
    - - Difference between warning notices and exclusion notices
        
        S2(4)(a) Where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier of liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe
        
        Roles v Nathan (1963)
        
        Staples v West Dorset Council (1995) - very obvious dangers may not require warnings
        
        Darby v National Trust (2001) - warnings wouldn't have told him more about the danger than he already knew
    - - Can be evidence that an occupier has discharged his liability under the act
        
        S2(4)(b) Where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonable in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done
        
        Broad interpretation will be applied - Ferguson v Welsh (1987)
        
        i) Reasonable to hire contractors in the first place
        
        ii) Reasonable in checking competence of contractors
        
        Gwilliam v West Hertfordshire NHS Trust (2002)
        
        Bottomley v Todmorden Cricket Club (2003)
        
        Naylor v Payling (2004)
        
        iii) Reasonable in checking work of contractors
        
        Haseldine v Daw (1941)
        
        Woodward v Mayor of Hastings (1954)
        
        AMF v Magnet Bowling (1968)