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Occupiers Liability (Both Statutes + evaluation) - Coggle Diagram
Occupiers Liability (Both Statutes + evaluation)
Occupiers Liability
What is Occupiers Liability?
Occupiers liability is a branch of negligence and if the claimant is successful then they will be awarded damages.
There are two different separate statutes which govern it and they are:
Occupiers Liability Act 1957 - governs Occupiers Liability for lawful visitors
Occupiers Liability Act 1984 - governs Occupiers Liability for trespassers
How we determine if someone is a lawful visitor or trespasser?
Visitors are those who have permission (express or implied) to be on the premises, if they have a statutory right, or if there has been a repeated visit.
To have express/implied permission the claimant must have permission from the occupier to:
When he was injured (when)
Doing what he was doing (why)
Be where he was (where)
If the claimant exceeds this they become a trespasser and the 1984 Act will apply (Geary v Wetherspoon).
Occupiers
The defendant will be an occupier but there is no statutory definition of an ‘occupier’
It is somebody who is in sufficient control of the property - they do not have to own it.
Wheat v E.Lacon and Co. LTD (1966) - the manager of a pub
Harris v Birkenhead Corporation (1976) - the local council
However, sometimes there will nobody in control so no occupier
Bailey v Armes (1999) - no occupier
Premises
There is no full statutory definition of premises
In S.1(3)(a) of the 1957 Act (Lawful Visitors) states a ‘person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft’
This has a very wide meaning as it can include obvious things such as houses, shops or even boats.
a ladder (Wheeler v Copas)
a splat wall (Gwilliam v West Hertfordshire Hospitals)
1984 Act - Trespassers
What is a Trespasser?
A trespasser is a person who has no permission or authority to be on the occupier’s premises or a visitor who has gone beyond their permission to be on the premises.
Trespassers are less deserving of legal protection than lawful visitors.
Damages
Damages are only provided for personal injury and not any damage to property S.1(8) 1984 Act
Who does it apply to?
The 1984 Act applies to those other than lawful visitors for ‘injury on the premises by reason of any danger due to the state of the premises or thing done or omitted to be done on them’ S1(1) of the Occupiers Liability Act 1984
It must be due to the state of the premises - an occupier is not liable for the behaviour of the trespasser
Keown v Coventry NHS Trust (2006) the injury was due to the claimant’s behaviour of the trespasser
Similarly, in Tomlinson it was the claimant diving into the lake, not the lake itself.
The duty and extent of the duty?
S.1(4) the duty is to ‘take such care as is reasonable in all the circumstances’ to prevent injury to trespassers ‘by reason of the danger concerned’
The occupiers will not be liable if the trespassers is injured by an obvious danger - Ratcliff v McConnell (1999)
The occupier only has to do what is reasonable to keep the premises safe - Tomlinson v Congleton (2003)
Children
The same statutory rules apply for child trespassers as for adults
Keown v Coventry Healthcare NHS Trust (2006) - the occupier was not liable as the child appreciated the risks of the danger
Baldaccino v West Wittering (2008) - There was no duty of care to warn the claimant against obvious dangers and the injuries did not result from the state of the premises.
Defences?
Contributory negligence: a partial defence if the claimant has contributed to their own injury or damage.
Volenti: S.1(6) full defence it has been determined that adult trespassers accept any risk that they know about when entering the premises (Ashdown v Samuel)
Warning: S.1(5) warning signs must be sufficient to adequately alert the claimant to the danger - Westwood v Post Office (1973)
If a claimant ignores a warning sign then they may be volenti - Tomlinson v Congleton
1957 Act - Lawful Visitors
Lawful Visitors - Expressed or implied permission and if they exceed that permission than they become a trespasser - Geary v Wetherspoon
For an answer, need to mention the different two statutes that occupiers Liability falls under - 1957 Act and 1984 Act
Occupier
An occupier is someone who has sufficient control over the premises - Wheat v E.Lacon
Premises
Occupiers owe a common duty of care to all lawful visitors under S.2(1)
The extent of this duty of care can vary
Can use for Ao2 that QE is sufficient for a premises as it is a large fixed structure.
S.2(2) - Common Duty: Must do what is reasonable to keep people reasonably safe on premises for the purpose in which they are invited or permitted to be there (Kiapasha Laverton) - Do what is reasonable. They also only need to guard against real sources of danger (Rochester Cathedral) - a piece of concrete caused someone to get injured whereas many were fine and only one person got injured.
It has been determined that it also includes a ladder (Wheeler v Copas) and a splat wall (Gwilliam)
They will owe an additional duty of care to children S.2(3) - Additional care would be reasonable to assume for children due to their age and so the premises must be reasonably safe for a child of that age - subjective
For the instance of a case regarding a tradesmen, an occupier will owe them a common duty of care under S.2(3)(b) but not regarding any special risks
Has a wide meaning and it benefits the idea of flexibility.
Claimants can claim for personal injury and damage to property
No full statutory definition of what a premises is but we can use S.1(3)(a) which states that it includes any fixed or moveable structure which includes vehicles, vessels.
Lawful visitors - adults
Types of adult visitors include:
Those given a statutory right of entry (e.g. police officers, post police)
Visitors (formally known as invitees or licensees - they have express or implied permission)
Entry to communicate (e.g. political candidate knocking on a front door)
Those with contractual permission (e.g. ticket holders)
An adult visitor is owed a common duty of care
S.2(2) Occupier must do what is reasonable in the circumstances to ensure that the visitor is reasonably safe on the premises for the purpose in which he is invited or permitted to be on the premises
The occupier does not have to make the visitor completely safe - only to do what is reasonable - Laverton v Kiapasha Takeaway Supreme (2002)
The state of the premises must pose a real source of danger before the occupier is expected to deal with it - Rochester Cathedral v Debell (2016)
The duty does not extend to accidents - trips and falls are everyday occurrences
A duty in respect to a specific risk cannot last indefinitely where there could be other causes of the damage - Cole v Davis - Gilbert, The Royal British Legion and others (2007)
Lawful Visitors: children
There is an additional duty owed to children
S.2(3) states that the 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’
The standard of care is measured subjectively according to the child’s age
The occupier should guard against allurement or attraction which places a child visitor at risk of harm - Glasgow Corporation v Taylor (1922) - ate poisonous berries and died
Where a very young child (new born to 4 years old) is injured the courts are reluctant to find the occupier liable as the child should be under supervision of an adult (subjective) - Phipps v Rochester Corporation (1955) - 5 or 6 years old and they weren’t supervised by the parents
But there is no age limit here - it is judged subjectively
The damage or injury must be reasonably foreseeable for the defendant to be liable - Jolley v Sutton LBC (2000) - Sutton was liable in the high court but then failed in the Court of Appeal but then the House of Lords reversed the decision as they were liable.
Children who might be regarded as a trespasser are treated as lawful visitors.
Tradsman
However, an occupier can expect that a tradesman will guard against any special risk associated with their trade. S.2(3)(b)
If the tradesman did not take precautions that they should have done, then the occupier is not liable - Roles v Nathan (1963)
The occupier will owe the tradesman a common duty of care under S.2(2)
Passing a claim
If a lawful visitor is injured on the occupiers premises are a result of a tradesman’s negligent work then the occupier may have a defence and be able to pass the claim to the workman
S.2(4) - there is three requirements that must be satisfied
The contractor hired must be competent to carry out the task - Bottomley v Todmorden Cricket Club (2003) (Look at the question scenario to see if a person is actually qualified for the task that has been assigned for them to do and for them to complete)
The occupier must check that the work has been properly done (if they can) - Woodward v The Mayor of Hastings (1945) (The best of the occupiers ability as if the occupier has no idea on what they need to check then they will do whatever they deem necessary and in their own ability to check)
It must be reasonable for the occupier to have given the work to the independent contractor - Haseldine v Daw and Son LTD (1941) (For example if someone is wiring a house then its reasonable to assume a person would hire a electrician to wire the house instead of a brick layer)
Evaluation
Defences
Contributory negligence: partial defence if the claimant has contributed to their own injury or damage - Law Reform (Contributory Negligence) Act 1945
Volenti: full defence (the occupier/defendant will not be reasonable for it) if the claimant is aware of the risk and voluntarily assumes the risk
Warning notice: Can be oral (verbal) or written warning
Case by case basis - Rae v Marrs (1990) warning was insufficient Where is the warning sign and is sufficient and is there enough on it to make the visitor reasonably safe.
If the danger is obvious and the visitor is able to appreciate it then no warning is necessary - Staples v West Dorset District Council (1995)
S.2(4) 1957 Act - the waning must be ‘enough to make the visitor reasonably safe (in all the circumstances)’
Warnings are not required where the risk is obvious, although a sign might show that the defendant has taken reasonable care - Tomlinson v Congleton BC
Exclusion clauses: S.2(1) - an occupier is able to ‘restrict, modify or exclude his duty by agreement’
Children might not understand the exclusion clause effect
Traders cannot exclude liability for personal injury or death - as per S.65 Consumer Rights Act 2015
An occupier (of a residential property(any property leased for living purposes)) can exclude liability for injury caused to the visitor