Please enable JavaScript.
Coggle requires JavaScript to display documents.
Occupier's Liability pt.1 - Coggle Diagram
Occupier's Liability pt.1
what is Occupier's Liability?
generally refers to the duty owed by land owners to those who come onto their land. however duty imposed on land owners can extend beyond simple land ownership & in some cases, landowners may transfer the duty to others, hence term occupier rather than owner.
term occupier itself is misleading since physical occupation isn't necessary for liability to arise.
occupier's liability
is perhaps a distinct form of negligence that there must be a duty of care and breach of duty, causing damage.
rules of remoteness apply to
occupier's liability
in the exact same way that they apply to negligence claims.
liability can arise on occupiers for omissions since their relationship gives rise to duty to take action to ensure the reasonable safety of visitors. law relating to
occupier's liability
originated in common law but is now contained in 2 major pieces of legislation
Occupiers Liability Act 1957
- which imposes an obligation on occupiers with regard to 'lawful visitors'
Occupiers Liability Act 1984
- which imposes liability on occupiers with regard to persons other than 'his visitors'
different levels of protection are expected under the two pieces of legislation with a higher level of protection afforded to lawful visitors.
Occupiers
both the Occupiers Liability Act 1957 and 1984 impose obligation on occupiers rather than land owners. question of whether a particular person is an occupier is a question of fact & depends on degree of control exercised. test applied to one of 'occupational control' and there may be more than once occupier of the sane premises.
KEY CASE: Wheat v Lacon (1966) AC 552 House of Lords
claimant & her family stayed in at a public house, Golfer's Arms in Great Yarmouth, for a holiday. Unfortunately her husband died when he fell down stairs & hit his head. stair were steep & narrow. handrail stopped 2 steps from bottom of stairs & no bulb in light. claimant brought an action under the Occupiers Liability Act 1957 against the Brewery company, Lacon, which owned the freehold of The Golfer's Arms and against the Managers of the pub, Mr & Mrs Richardson, who occupied the pub as a license.
Held:
Both the Richardsons and Lacon were occupiers for the purposes of the Occupiers Liability Act 1957 and therefore both owed the common duty of care. It is possible to have more than one occupier. The question of whether a particular person is an occupier under the Act is whether they have occupational control. Lacon had only granted a license to the Richardsons and had retained the right to repair which gave them a sufficient degree of control. There is no requirement of physical occupation. However, it was found that Lacon was not in breach of duty since the provision of light bulbs would have been part of the day to day management duties of the Richardsons. Since the Richardsons were not party to the appeal the claimant’s action failed.
KEY CASE: Harris v Birkenhead Corporation (1976)
claimant Julie Harris was 4 years old when she wandered off from a children's play park with her friend. they entered derelict house which was due for demolition. House hadn't been secured & door was open. they went upstairs & Julie sustained serious injury when she fell from a window. House had been subject to a compulsory purchase order by the council. House had been owned by private landlord & tenant was offered alternative accommodation by council. tenant informed council she didn't want to take up the offer of accommodation & made her own arrangements & left the property. council served 14 days notice on owner of their intention to take possession of the property, but never actually took physical possession at the expiry of 14 days
Held:
council had legal right to take possession to secure the property, actual physical occupation wasn't required to incur liability as an occupier. the council were therefore liable.
in practice, a decision of who's in control of premises may be influence by whose insurance policy covers the premises and is able to meet the claim. however, sometimes, court will find that no one is in control of the premises leaving the injured visitor with nobody to sue.
KEY CASE: Bailey v Armes (1999)
defendants lives in flat above a supermarket. they allowed their son to play on the flat roof above their home but forbade him to take anyone else there. supermarket owners knew nothing of the use of the roof. the boy took a friend onto the rook & the boy was injured when he fell from the roof. CoA decided that neither the supermarket nor Defendants were occupiers as they didn't have sufficient control over the roof.
Premises
there's no full statutory definition of premises except in
s1(3)(a) of the 1957 act
where there's reference to person having occupation or control of any fixed or moveable structure, including any vessel, vehicle and aircraft.
besides the obvious such as houses, offices, buildings and land, premises has also been held to include::
a ship in dry dock
a vehicle a lift and even
a ladder.
lawful visitors
lawful visitors to whom occupiers owe the common duty of care for the purposes of the
Occupiers Liability Act of 1957
include:
invitees
-
S.1(2) Occupiers Liability Act 1957
- those who have been invited to come onto the land & therefore have express permission to be there.
Licensees
-
S.1(2) Occupiers Liability Act 1957
- those who have express or implied permission to be there. according to S.1(2) this includes situations where a license would be implied at common law
those who enter pursuant to a contract
-
s.5(1) Occupiers Liability Act 1957
- For example paying guests at a hotel or paying visitors to a theatre performance or to see a film at a cinema.
Those entering in exercising a right conferred by law
-
s.2(6) Occupiers Liability Act 1957
- For example a person entering to read the gas or electricity metres or a police officer exercising a warrant
An adult visitor is owed a common duty of care
2(2)
- 'The common duty of care is 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 by the occupier to be there.'
thus the standard of care varies according to the circumstances. the legislation refers to two particular situations where the standard may vary:
Key case: Laverton v Kiapasha Takeaway (2002)
the defendants owned a small take-way shop. They had fitted slip resistant tiles and they used a mop and bucket to mop the floor it had been raining. When the claimant went into the shop it was very busy she slopped and broke her ankle. The Court of Appeal decided that the shop owners had taken reasonable care to ensure their customers were safe. They were not liable as they did not have to make the shop completely safe.
The court commented in this case that the safety of visitors to premises was not guaranteed and in this case that was not feasible as the shop owners had taken precautions and customers can be reasonable safe if they take reasonable case of their own safety.
Key case: Dean and Chapter of Rochester Cathedral v Debell (2016)
the claimant was injured when he tripped over a small lump of concrete protruding about two inches from the base of a traffic bollard in the precinct of Rochester Cathedral. The bollard had previously been slightly damaged by a car.
court of appeal decided:
1) tripping , slipping and falling are everyday occurrence. No occupier of premises like the cathedral could possibly ensure that the road or precinct around a building were maintained in a pristine state.
Even if they were, accidents would still happen. The obligations on the occupier is to make the land reasonable safe for visitors, not to guarantee their safety. In order to impose liability, there must be something over and above the risk of injury from the minor blemishes and defects which are habitually found on any road or pathway.
2) The risk is reasonable foreseeable only where there is a real source of danger which a reasonable person would recognise as obliging the occupier to take remedial action. A visitor is reasonably safe even if there may be visible minor defects on a road which carry a foreseeable risk of causing an accident and injury.
judgements in both these cases emphasised that common duty of care imposes a duty on occupier to keep visitor reasonably safe, not to necessarily maintain completely safe premises. state of premises must pose real source of danger before foreseeability of risk of damage can be found.
it's possible that if case has been decided in favour of visitor it could have opened floodgates to tide of claims against occupier & create very high level of responsibility for safety of visitors
visitors may be lawful for purpose of 1957 Act, but if exceeds his permission & enters unauthorised area may become trespasser & lose protection of 1957 act. in which case rule in 1984 act may apply
however duty of care doesn't extend to liability for pure accidents & a duty in respect of a specific risk can't last indefinitely where there could be other causes of damages.
Negligence and Occupier's Liability
-
Cole v Davis-Gilbert and others
owners of a village green allowed green to be used by Royal British Legion to hold a village fete which included maypole dancing. the maypole was removed & hole, left by maypole, was filled. sometime later filling was removed although it wasn't know by whom. nearly 2 years later claimant stepped into hole & broke her leg. proceedings were brought against the owners of the green and British Royal Legion.
CoA decided neither owner of green not BRL were liable. point of interest for landowners came in relation to claim against the owners of the green. 1957 act provides that "the common law on 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 purpose for which he is invited or permitted by the occupier to be there."
Landowner knew that maypole was removed but could reasonably assume hole had be sealed. Court dismissed an suggestion that duty under the act is an higher than the common law threshold. court was concerned to ensure that the bar of negligence shouldn't be set too high because this may inhibit activities on village greens..
Occupier's Liability to children
occupier will owe children coming onto the premises the common duty of care but there's additional special duty owed to child visitors S.2(3)(a) - an occupier must be prepared for children to be less careful than adults.
court will take into account age of child and level of understanding child at that age may be expected to have
for children standard of care = measured subjectively according to age of child. reasoning is logical: what may not be dangerous for adult may be dangerous for child. occupier should guard against any kind of allurement or attraction which places child at risk of harm
Taylor v Glasgow Corporation (1922) 1 AC 448 HoL
The defendants owned the Botanic Gardens of Glasgow, park open to the public. in park various botanic plants and shrubs grew. A boy of seven years ate some berries from one of the shrubs. berries were poisonous and boy died. shrub was not fenced off and no warning signs were present as to danger the berries represented.
Held:
Glasgow Corporation was liable. Children were entitled to go onto the land. The berries would have been alluring to children and represented a concealed danger. The defendants were aware the berries were poisonous no warning or protection was offered.
where very young children injured, court reluctant to find occupier liable as child should be under supervision and care of adult.
Phipps v Rochester Corporation (1955) 1 QB 450
5 year old boy was walking across some open ground with 7 year old sister. He was not accompanied by an adult. He was injured when he fell into a trench. The Corporation were not held liable as an occupier is entitled to assume that prudent parents would not allow their children to go unaccompanied to places where it is unsafe.
difficulty here = no age limit set as to when this rule applies. if allurement exists, there won't be liability on occupier if damage or injury suffered isn't foreseeable.
Jolley v Sutton (2000) 1 WLR 1082
Two 14 year old boys found an abandoned boat on land owned by the council and decided to do it up. boat was in a thoroughly rotten condition and represented a danger. council had stuck a notice on the boat warning not to touch the boat and that if the owner did not claim the boat within 7 days it would be taken away. The council never took it away. The boys had been working on the boat for 6-7 weeks when one of them suffered severe spinal injuries, resulting in paraplegia, when the boat fell on top of him. boys had jacked the boat up to work on the underside and the jack went through the rotten wood. The claimant brought an action under the Occupiers Liability Act 1984. The trial judge found for the claimant.
1 more item...
Occupier's liability to people carrying outa trade or calling
occupier will owe tradesman coming onto the premises the common duty of care. but, by S.2(2)(b) of 1957 act the occupier an 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.'
effect of this provision = an occupier won't be liable where tradesmen fail to guard against risks they should know about/expected to know about
KEY CASE: Roles v Nathan (1963) 1 WLR 1118 CoA
Two brothers, Donald and Joseph Roles were engaged by Mr Nathan as chimney sweeps to clean the flues in in a central heating system at Manchester Assembly Rooms. The flues had become dangerous due to carbon monoxide emissions. A heating engineer had warned them of the danger, however, the brothers told him they knew of the dangers and had been flue inspectors for many years. The engineer monitored the situation throughout the day and at one point ordered everybody out of the building due to the levels of carbon monoxide
The brothers ignored this advice and continued with their work. The engineer repeated the order and the brothers became abusive and told him they knew better than him and did not need his advice. The engineer forcibly removed them from the building. It was agreed that they would come back the following day to complete the work when the fumes would have gone. They were also told they should not do the work whilst the fires were lighted. However, the next day the brothers were found dead in the basement having returned the previous evening to complete the work when the fires were lit. Their widows brought an action under the Occupiers Liability Act 1957.
Held:
The defendant was not liable. The dangers were special risks, ordinarily incident to their calling. The warnings issued were clear and the brothers would have been safe had they heeded the warnings.
this rule acts as defence to occupier, only applies where the tradesman visitor is injured by something relating to his trade or calling. if tradesman is injured by something different, occupier will still owe common duty of care.