Please enable JavaScript.
Coggle requires JavaScript to display documents.
occupier's liability (1957) - Coggle Diagram
occupier's liability (1957)
Premises: any FIXED or MOVEABLE STRUCTURE, including vehicle, vessel and aircraft
Can only SUE if there is a DANGER in the state of the premises
OCCUPIERS
OWNERS of the premises
HOLDERS of other legal rights to the premises, eg tenants
MANAGERS of businesses operating from the premises
ORGANISATIONS with a responsibility for maintenance
Any others who have “CONTROL” of premises
VISITORS
INVITEES: Someone who has been ASKED onto the premises
LICENSEES: Someone who has been “GIVEN PERMISSION” to go in (customer)
Anyone with a CONTRACTUAL RIGHT: A workman performing agreed upon tasks
Anyone with any other LEGAL RIGHT: A police officer executing a search warrant
WHEAT v E LACON
manager of a pub was given the right to rent out rooms in his private area
had no ownership rights in premises
a paying guest fell on an unlit staircase and died
decided that BOTH the managers and employers could be LIABLE so there can be MORE THAN ONE OCCUPIER
PEOPLE EXERCISING THEIR CALLING
s.2(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)
two chimney sweeps died after inhaling toxic fumes while cleaning chimney - had been warned of the danger - OCCUPIER NOT LIABLE as they could EXPECT the CHIMNEY SWEEPS to be AWARE of the DANGER and TAKE NECESSARY PRECAUTIONS
INDEPENDENT CONTRACTORS
it must be REASONABLE for the OCCUPIER to have given the work to the IC
HASELDINE v DAW & SON LTD (1941): C injured when lift PLUNGED to the BOTTOM of a shaft - OCCUPIER NOT LIABLE for NEGLIGENT REPAIR of lift - SPECIALIST WORK so was REASONABLE to give work to IC
OCCUPIER MUST CHECK WORK OF IC AFTER IT HAS BEEN CARRIED OUT
WOODWARD v MAYOR OF HASTINGS: child injured at school as steps left icy after snow had been cleared from them - school FAILED TO TAKE REASONABLE STEPS TO ENSURE WORK HAD BEEN DONE PROPERLY and the DANGER should have been OBVIOUS
s.2(4)(b) - if a LAWFUL VISITOR is INJURED by the NEGLIGENT WORK of a workman ENGAGED BY the occupier, the occupier may have a DEFENCE and may be able to PASS THE CLAIM to the IC - THREE REQUIREMENTS NEED TO BE SATISFIED:
THE IC MUST BE COMPETENT - INSURED?
BOTTOMLEY v TODMORDEN CRICKET CLUB: club hired stunt team to carry out 'firework display' - chose ordinary gunpowder, petrol and propane gas rather than traditional fireworks - claimant (unpaid amateur, no experience) conducted stunt - burnt and broke arm - NO INSURANCE - CLUB FOUND LIABLE as it FAILED TO EXERCISE REASONABLE CARE in choosing SAFE and COMPETENT CONTRACTORS
DUTY OF CARE FOR ADULTS
Section 2(1) OLA 1957 - “An OCCUPIER OWES the SAME duty of care, the common duty of care, to ALL HIS VISITORS…”
Section 2(2) OLA 1957 - He must “take SUCH CARE as in ALL THE CIRCUMSTANCES of the case it 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.”
COLE v DAVIS GILBERT
Woman walked along village green at night - foot got caught in hole - twisted ankle - sued owners of green - “premises was not safe” - hole was filled previously BUT somehow dug back out (many possibilities) - ACCIDENT - NOT LIABLE
The premises only need to be reasonably safe and ACCIDENTS CAN STILL HAPPEN
Some injuries happen simply by accident and no reasonable amount of care taken by the occupier could have prevented them
DUTY OF CARE FOR CHILDREN
s.2(3)(a) OLA 1957 “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”
ALLUREMENT - GLASGOW CORPORATION v TAYLOR
botanical garden - shiny red berries in one plant - child ate red berries and died - sign said berries were poisonous - no fence - Corporation was liable as they were AWARE of the DANGER
FORESEEABLE CARELESSNESS - JOLLEY v LB SUTTON
abandoned boat - boys tried to repair the boat - was REASONABLY FORESEEABLE that they WOULD CLIMB on the boat - DOESN'T HAVE TO BE 'REASONABLY FORESEEABLE' what they EXACTLY DID - boat fell on the children
BUT PHIPPS v ROCHESTER CORPORATION (1955)
child was playing on open ground own by council with sister - FELL DOWN IN OPEN TRENCH - injured - council NOT LIABLE as the OCCUPIER is entitled to EXPECT that PARENTS will not allow their YOUNG CHILDREN to go to places which are UNSAFE
‘Big children are more careful than little children, it's a scale’
BOURNE LEISURE v MARSDEN
went camping on caravan/camping grounds - had a lot of ornamental pools around grounds - as family was setting up camp - 3 year old went wandering - falling over into one of the pools and drowned
WARNINGS
WESTWOOD v POST OFFICE (1973) - claimant was an employee at the Post Office - injured when entered a room that said ‘only authorised attendant is permitted to enter’ - door should have been locked - D NOT LIABLE AS SIGN WAS SUFFICIENT WARNING TO AN ADULT
The warning MUST BE SEEN by visitors
Under s.2(4)(a) - any WARNING must be ENOUGH in ALL THE CIRCUMSTANCES “to ENABLE the VISITOR to be REASONABLY SAFE”
STAPLES v WEST DORSET (1995) - Staples tried to climb a wall by the harbour that was covered in wet algae - Staples fell - no sign - did not need to put a sign as it was not necessary - RISK WAS OBVIOUS
It must be capable of being understood by visitors (n.b. Need for clearer warnings for children than adults).
A warning alone may not be sufficient.
Very obvious risks need no specific warning
EXCLUSION CLAUSES
OLA 1957 s.2(1) an occupier is able: "to restrict, modify or exclude his duty by agreement or otherwise"
An exclusion clause is a term in a contract that seeks to reduce or remove liability for something
Effectiveness of exclusions:
can ONLY APPLY to people being GIVEN SPECIFIC PERMISSION to enter
The exclusion CANNOT APPLY unless it is SEEN BY VISITOR
Exclusions are LESS EFFECTIVE AGAINST CHILDREN because they may NOT UNDERSTAND THEM
And to TRESPASSERS - do not have a contract
It is ONLY POSSIBLE to limit or exclude liability for PROPERTY DAMAGE because of 2.2(1) UCTA
Even then, UCTA may make an exclusion clause INEFFECTIVE if it is UNREASONABLE
DEFENCES
VOLENTI
COMPLETE DEFENCE - D will not be liable to pay damages to C, as C has freely ACCEPTED to run the RISK of injury while on OCCUPIER'S PREMISES
CONTRIBUTORY NEGLIGENCE
PARTIAL DEFENCE - OCCUPIER argues that C is PARTLY responsible for injuries they have suffered while on OCCUPIER'S PREMISES - if successfully argued, amount of compensation will be reduced