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Occupier's liability (Occupier's liabilityy refers to the legal…
Occupier's liability
Occupier's liabilityy refers to the legal responsibility of an occupier for damage to those who come onto their land due to the state of the premises.
- The OLA 1957 relates to lawful visitors
- The OLA 1984 relates to unlawful visitors and trespassers
There are two common elements to both acts;
- who counts as an occupier?
- what counts as 'premises'?
There is no statutory definition of an occupier in either act, and instead judges will refer to common law, which defines it as a person who controls the premises.
:red_flag: Wheat v Lacon -- there can be more than one occupier of a premises
:red_flag: Gary Furmedge and others v Chester-Le-Street District Council & (1) Brouhaha international Ltd (2) Maurice Agis (third parties) (2011) -- the court here was required to determine the apportionment of responsibility between D and third party company following the accident. Held that B had become an occupier of the structure under 57 Act and owed a duty of care. Council also liable in accordance with s.2(1) Civil Liability (Contribution) Act 1978
:red_flag: Bailey v Arms -- shows that there must be sufficient control of the premises for this to work
There is also no statutory definition of premises in either act, but s1(3)(a) OLA 1957 refers to a person having occupation or control of a ‘fixed or moveable structure, including any vessel, vehicle and aircraft’
OCCUPIERS LIABILITY ACT 1957:
Who counts as a lawful visitor?
s.1(2) outlines who is involved in the umbrella phrase of 'visitor', specifying that they are as such simply for "the purposes for which he is...there"
- Invitees (those who have been expressly invited onto the premises)
- Licencees (those who have express or implied permission to be on the premises for a specific time/purpose)
- those with contractual permission
- those with a statutory right of entry
If a lawful visitor exceeds the permission for being on the premises, he becomes an unlawful visitor (trespasser, and so then covered by '84 Act
BUT this does not include people using public right of way
Common duty of care:
S2(1) OLA (1957) says that ‘An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor(s) by agreement or otherwise…’
S2(2) OLA (1957) then explains the SCOPE of that duty
“The common duty of care is one 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.”
:red_flag: Laverton v Kiapasha
- Ds not liable as they weren't obliged to make the shop completely safe, and had taken reasonable steps to ensure the customers were mosly safe whilst on the premises
:red_flag: Dean v Debell
- Tripping, slipping and falling are everyday occurrences that Ds cannot be expected to guard against. D took reasonable precautions (which were enough) and wasn't expected to guarantee C's safety
:red_flag: Mark Pollock v Edna and Madeline Cahill (2015)
- blind person's fall from open window 2nd storey
- common duty of care owed by occupiers pursuant to the 57 Act, s.2 required them to have regard to any known vulnerability of the visitor; open window created obvious risk for blind person - misjudgement by D
:red_flag: Hall v Holker Estates (2008)
- once C had proved that an accident had occurred because of want of safety at the time of said accident (the removal of pegs holding down a portable goal) which was not an uncommon occurrence and created a risk of injury against which D was obliged to guard, the onus was on D to show that the accident did not arise from any want of care on his part;; failed to do so
- Ward v Tesco applied here
Factors the courts may take into account when deciding if an occupier has taken reasonable care:
- Size of risk (Bolton v stone, Miller v jackson)
- Seriousness of potential harm (Paris v SBC)
- Practicability of precautions (Paris v SBC, Latimer v AEC, Hayley v LEB)
- Benefits outweigh risk (Watt v HCC)
In the 1957 Act there are TWO groups who are owed a different duty than stated in s2(2) as the 'common duty of care':
- Children
- Tradespeople/professional visitors
s2(3)(a) shows that 'an occupier must be prepared for children to be less careful than adults (and as a result) the premises must be reasonably safe for a child of that age'
:red_flag: Orchard v Lee (2009)
- 13 year old boy not liable for personal injury caused to a lunchtime supervisor when he collided with her whilst playing a game of tag in an outdoor area. His conduct was simply the conduct to be expected of a 13 year old boy, and therefor did not amount to conduct in which he would reasonably foresee that there was likely to be injury beyond that normally occurring
Lord Justice Waller: 13 year old boys will be 13 year old boys who play tag, will run backwards and taunt each other...if they are not breaking any rules, they should not be held liable in negligence...
:red_flag: Palmer v Cornwall CC (2009)
- local authority found negligent for personal injuries sustained by a school pupil when he was on the school field during lunch as it had been negligent to only have one dinner lady outside to supervise over 150 kids who, as a result, was only able to occasionally glance at older pupils. Pupil was hit by a rock thrown by one of his year group
:red_flag: Dionne Armstrong
- local authority not liable either under the OLA 57 or at common law for injuries caused to a child who had crossed a dual carriageway by accessing it from local authority land through a gap in the fence
:red_flag: phipps v Rochester
- D was entitled to presume that no sensible parent would allow young children to enter the area unaccompanied
-- Jolly v Sutton -- Allurement rule; children may be drawn to play on decrepit buildings, such as a boat in this cas. Important to note that this is only relevant in relation to establishing foreseeability of danger/the risk
Visitors carrying out a trade/calling
s2(3)(b) says that 'a person carrying out a trade/calling should appreciate and guard against any special risks ordinarily incident to it'
-- Roles v Nathan -- Sweeps were expected to know of the danger and had been warned of it
Independent contractors:
s2(4)(b) show that an occupier is not at fault for the work of an independent contractor if;
- it was reasonable for the occupier to give the work to an independent contractor -- Haseldine v Daw --
- the occupier took reasonable precautions to ensure that the contractor hired is competent to carry out the task -- Bottomley v Todmorden --
- the occupier must check that the work has been done properly -- woodward v Mayor of Hastings
OCCUPIERS' LIABILITY ACT 1984:
Unlawful visitors and trespassers
A trespasser is defined as someone who does not have permission to be where they are/doing what they're doing = a duty of an occupier to someone other than his visitors
-- Addie v Dumbreck --
-- Herington v BRB --
The duty of care:
s1(1)(a) shows that 'injury on the premises by reason of any danger due to the state of the premises or things done or omitted to be done on them'
Here, danger must come from the state of the premises not from the trespasser's activity on them
s1(4) an occupier has a duty to:
'take such care as is reasonable in the circumstances to see that the trespasser is not injured by reason of the danger concerned'
:red_flag: Thomas Buckett v Staffordshire CC (2015)
- Firstly, the court ruled that it was foreseeable that youths, outside school time, would gain access to and trespass on school grounds, and there had been well recorded incidents of such trespass. While it was not foreseeable that ordinary trespassers would climb over the fencing to the pitched roof sections, it was foreseeable that such persons would climb onto the fencing and gain access to the diagonal brace, and obvious standing point. The group had progressed from benign trespass, to one intent on having reckless fun and then to criminal activity.
- By the time the group accessed the upper roofs, this intent had ended. It was likely that B jumped down on the skylight thinking it could hold his weight, not to break it. But the skylights were obvious, not defective or in need of repair, to not be walked on = C's own actions resulted in his injuries. D owed C no duty to control that activity as a trespasser, even through C's presence in the vicinity of the skylight ought reasonably to have been foreseen
- Secondly, what D ought to have known or knew were not key to establishing liability. C failed to establish that the duty under s.1(1)(a) 1984 Act was engaged.
When is a duty owed?
s1(3) says that an occupier only owes a duty if:
(a) he is aware of the danger or has reasonable grounds to believe it exists, and
(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger/will enter into it, and
(c) the risk is one which he may be expected to offer the other some protection
judicial trends?
:red_flag: Ratcliff v McConnell -- the occupier will not be liable if the trespasser is injured by an obvious danger
:red_flag: Tomlinson v CBC -- the occupier doesn't have to spend a lot of money in making the premises safe from obvious danger
:red_flag: Higgs v Foster -- The occupier will not be liable if he had no reason to suspect the presence of a trespasser
:red_flag: Rhind v Astbury -- The occupier won't be liable if he was not aware of the danger and had no reason to suppose the danger existed
How can an occupier discharge a duty:
s1(5) says that this is possible 'by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk'
:red_flag: Tedstone v Bourne Leisure Ltd/T/A Thoresbury Hall Hotel and Spa (2008)
- hotel not liable under 57 Act for injuries caused to a guest who slipped on a poll of water in the vicinity of a jacuzzi as the pool water had only been there for a few minutes and was in an area where water had not gathered before
:red_flag: Trustees of Portsmouth Youth Activities Committee (A Charity) v Poppleton (2008)
- P injured whilst rock climbing; no liability
**where there was an inherent risk of injury as a result of a voluntary undertaken activity, the law did not require the occupier of the land that the activity occurred on to prevent an individual from engaging in that activity, or to train or supervise him whilst he did it
:red_flag: Keown v Coventry Healthcare NHS Trust (2006)
- 11 year old climbed the outside of a fire escape was not at risk of suffering injury by reason of any danger due to the state of the premises within the OLA 1984, s.1(1)(a) but had put himself at risk through his own choice to indulge in dangerous activity
- if there was a danger attributable to the state of the premises, thus giving rise to a potential duty, the contents of the duty might vary according to whether the trespasser was a child or an adult, but until that point was reached, then in the general run of cases, the age of teh trespasser was NOT relevant
:red_flag: Cole v Davis-Gilbert and others
- Maypole dancing on village green removed, with the hole it left being filled. Unknown third party removed the filling and C broke her leg because of this
- CoA decided that neither the owner of the green nor the organisers of the dancing were liable; they dismissed the suggestion that the duty under the 57 Act is any higher than the common law threshold - concerned to ensure that the bar of negligence was not set too high. HOWEVER note that the outcome may have been different if the hole had not been filled
- the duty on D cannot last forever
:red_flag: Jonathan Harvey v Plymouth CC (2010)
- when a local authority licensed the public to use its land for recreational purposes, it was consenting to normal recreational activities - carrying normal risks - and its duty as an occupier to an implied licensee could not be stretched to cover any form of activity, however reckless
Compensation Act 2006
:red_flag: Scout association v Mark Adam Barnes (2010)
:star: good case on the compensation act and socially desirable activities; whether the social benefit of an activity was such that the degree of risk it entailed was acceptable was a question of fact, degree and judgement which has to be decided on an individual basis
- playing a potentially risky game in the dark unacceptably increased the foreseeable risk of injuries occurring, despite only being used for 'added excitement'
Jackson LJ DISSENTING: I would therefore uphold the judge's finding that the risks of the game were increased by turning off the main light...however, the lack of illumination was a subsidiary cause rather than the main cause of this accident...the main cause was C looking down at the block rather than where he was going.'
- reference made to :red_flag: Tomlinson v Congleton BC (2003) where C suffered personal injury diving into a council lake and was found to be the author of his own misfourtune.
...obviously the risks were increased by disillumination, but I do not see how it could possibly be said that these increased risks outweighed the social benefits of the activity.
Philosophy: it is the function of the law of tort to deter negligent conduct and to compensate those who are the victims of such conduct. It is not the function of the law of tort to eliminate every iota of risk or to stamp out socially desireable activities...This principle is now enshrined in s.1 Compensation Act 2006. That provision was not in force at the time of C's accident. However, it has always been a part of the common law.
:red_flag: Sutton v Syston Rugby Football Club Ltd (2011)
- important here that standards were not laid down that were too difficult for ordinary coaches and match organisers to meet. Games of rugby were desireable activities within the Compensation Act 2006, s.1. It was therefore appropriate that, before a game or training session, a pitch was walked over at a reasonable walking pace by a coach or match organiser. The judge's conclusion on causation was not decisive (appeal allowed)
Sporting activities?
:red_flag: Robert Lee Uren v (1) Corporate Leisure and others (2010)
- sporting activities such as team games undertaken as part of a health and fun day, were almost never risk-free and a balance had to be struck between the level of risk involved and the benefits the activity conferred on the participants and thereby on society generally
- where C had suffered serious personal injury after diving head first into an inflatable pool as part of a relay game, the organisers of the event had not been in breach of their common law duty to him by declining to neuter the game of much of its enjoyable challenge by prohibiting head first entry, and were not, therefore, liable for his injuries
:red_flag: Andrew Risk v Rose BC (2013) - very similar facts and outcome/principle applied
fair, just and reasonable
:red_flag:Everett v Comojo (2011)
- there was a duty of care on the management of a nightclub in respect of the actions of third parties on the premises but the standard of care imposed or the scope of the duty had to be fair, just and reasonable
- as between the managers of a nightclub and guests, there should not be a higher degree of foreseeability than was required under the common duty of care in 57 Act
:red_flag: Tacagni v Cornwall CC and Penwith DC (2013)
- decision on the degree of care that was to be expected of an ordinary visitor under OLA 1957, s.2(3)
- judge concluded that C was under the influence of alcohol only to a moderate extent and that the local authority had breached its common duty of care owed to her by failing to erect a fence to prevent someone falling over the edge, but found that she was only 2/3 liable
Wet weather and signs
:red_flag: Maddison Hufton v Somerset CC (2011)
- A school which operated a policy of preventing pupils from entering the premises directly into the school hall on rainy days by erecting wet weather signs as soon as it started raining was not expected to have a system in place for observing and removing water deposited in the hall during the brief period of time between it starting to rain and the production of wet weather signs. Accordingly, it was not liable to a pupil who slipped and fell as a result of this
- Lord Justice Jackson: I do not regard it as realistic to say that the school should have had a system in place whereby that small area of water should have been spotted and mopped up during the brief period of time...
:red_flag: Dufosse v Melbury Evenets Ltd (2011) (Father Christmas Case)
- the district judge here took an overly benevolent view of the performance by Santa and the elf of their duties in D's case
- at the conclusion of the case, the court had been asked to rule on contributory negligence. The judge had not reached a conclusion on that matter as he had found in favour of D. It was not D's duty to ensure that there were no tripping hazards in the grotto; it was the duty of Santa and the elf. Therefore, there was no contributory negligence.
warning signs in general
A warning is not to be treated as enough to absolve an occupier from liability in itself unless in all the circumstances it was enough to enable the visitor to be reasonably safe - s.2(4)(a) - albeit no warning is required where the danger is an obvious one
:star: s.2(4) specifically refers to a warning sign given by the occupier; in consequence it would follow that third party warnings would not suffice for the purposes of the act. However, it would be suggested that a warning given by a third party would form part of "all the circumstances of the case" and as such (as per s.2(2)) will be a relevant factor