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Occupiers Liability Act 1957, The public rights of way people are the…

- - - - S1(2) OLA 1957 merely states that the rules apply '... In consequence of a person's occupation of control of premises...'
        
        Key word is "control" - can exist with or without physical possession of the premises
        
        Did the occupier have sufficient control over premises to be able to ensure safety and to recognise that a failure on his/her part can result in an injury to their visitor
        
        Wheat v Lacon & Co Ltd (1966):
        
        Facts: D owned a public house where it was run by a manager and his wife who lived on the 1st floor, and were allowed to take in paying guests. A paying guest was killed when he fell on the emergency staircase while trying to get to the bar on the 1st floor.
        
        Held: D had sufficient control over the private premises and the 1st floor altogether with the manager and thus both parties were occupiers and therefore jointly liable.
        
        Common law definition of an Occupier: Harris v Birkenhead Corporation (1976):
        
        Facts: A local authority acquired a house and then left it vacant. Vandals entered the house and broke the door and windows. Later on, a 4 year-old entered the house and was injured when he fell from one of the windows
        
        Issue: Whether D was an occupier
        
        Held: Held that D had exercised their statutory right to take possession and control of the premises. Hence they had immediate right of control as soon as they took possession of the house and is an occupier.
        
        Bailey v Armes (1999):
        
        Facts: D lived above a supermarket where D's son was allowed to play on the roof top but not allowed to take anyone else to the rooftop. The son took his friend who was injured when he fell from the roof.
        
        Held: Neither D or the supermarket owners were occupiers as they did not have sufficient control over the roof.
    - - S1(2) OLA 1957 - liability towards 'visitors':
        
        "Visitors for the purposes of the Act are those persons who were 'invitees' or 'licensees' at common law
        
        Anyone to whom an occupier gave any invitation or permission to enter or use his premise
        
        Common DOC is owed to 'lawful visitors' (i.e. people whom the occupier owes a duty)
        
        Defines the extent of the occupier's duty:
        
        Contractual Entrance
        
        Invitees
        
        Licensees
        
        Contractual Entrant
        
        Contractual entrant is a person who is on the premises pursuant to a contractual right:
        
        Two types:
        
        Main Purpose Entrant - A person who enters the premises for the purpose of occupying it and who had paid to be on the premises. e.g. tenant, guest at hotel
        
        Ancillary Purpose Entrant - A person who had paid to be on the premises for the primary purpose of some activity other than personal dwelling e.g. sports spectator, passenger bus
        
        Invitees
        
        A person is an invitee if he is on private/public premises for a business purpose of material benefit to the occupier. The invitee has economic interest in being on the premise
        
        S1(2) OLA1957 - Those who had been invited to come on the land and therefore have express permission to be there
        
        Indermaur v Dames (1866):
        
        Facts: C (a gas fitter) fell through a hole in the floor and injured him whilst he was trying to fix gas pipes at the D' sugar factory
        
        Held: Held that this was an unusual danger that was known to D even though C as an invitee must take reasonable DOC for his own safety. An occupier must reasonable avoid any damage that can arise from extraordinary danger that is known to him/ought to have known to him
        
        Licensee
        
        Those who have been given permission, express or otherwise to enter the premises. They are not trespassers/invitees
        
        S1(2) OLA1957 - Those who have express/implied permission to be there
        
        Entrant as of right - Right to enter premises that pen to the public
        
        Social Visitors
    - - Provided under S2(1) OLA 1957 - common DOC:
        
        S2(1) - 'An occupier owes the same duty, the common DOC to all his visitors except insofar as he is free to do so and does extend, restrict, modify exclude his duty to any visitors by agreement or otherwise
        
        S2(2) - 'Take such care as is all the circumstances of the case is reasonable to see that the visitor will be reasonably safe for the purpose for which he is invited or permitted by the occupier to be there'.
        
        Right to enter public / private right of way
        
        The Act is silent on the position of users of public and private rights of way, and the common law still applies
        
        McGeown v Northern Ireland Housing Executive (1994):
        
        Facts: C was walking along a public footpath that ran over D's land. She tripped in a hole and was injured and sued D. Her case was rejected.
        
        Held: HoL confirmed that people used rights of way were neither visitors or trespassers = no DOC owed.
        
        Warz v The Ritz Hotel (1992):
        
        Facts: C was injured when he fell over a balcony in D's hotel. The railing was some 6 inches lower than British Standards Institution recommendation.
        
        Held: D liable under OLA 1957
        
        Searson v Brioland (2005):
        
        Facts: C was attending a wedding at a hotel run by D. He tripped over a threshold that was 3 cm above floor level and and sustained serious injuries. Although there had been no previous incidents of this kind at the D's premises.
        
        Held: Held that D was in breach of duty.
        
        Common DOC
        
        DOC only applies under OLA 1957 if the visitor is carrying authorised activities in his visits
        
        DOC is to keep visitors safe not the premises safe
        
        All visitors owed the same DOC unless agreed otherwise
        
        Extent of DOC depends on degree of care and want of care relevant to type of visitors
        
        Cole v Davis-Gilbert (2007):
        
        Facts: A woman broke her leg when she stepped on a hole hidden by grass while she was crossing a village green. Hole was used for inserting a maypole during annual festivities. She sued the owner of the village stating that as an occupier he had DOC to keep visitors safe and the Royal British Legion who were responsible for running the annual festivities.
        
        Held: CA held that there was no DOC on the owner to inspect the green for holes as there were may people who used it for different purposes. Further, British legion owed DOC that the hole was properly filled and that the DOC was not forever.
        
        Bourne Leisure Ltd v Marsden (2009):
        
        Facts: A mother left her child unattended in a park bench for a few minutes while she was speaking to someone. Child climbed over a fence and drowned in a pond. Mother sued park owner.
        
        Held: CA held that its impractical to fence off every hazard and danger of drowning should have been obvious to the parents. CA stressed that this was not the fault of the parent.
        
        Right to enter conferred by law
        
        S.5(1) OLA 1957 operates to imply into the contract the common DOC is:
        
        Where a visitor enters premise in accordance with a contact governing his/her entry, occupiers may include in that contract an express term that specifies the SOC owed to visitor
        
        SOC - standard of care
        
        Maguire v Sefton MBC (2006):
        
        Facts: C contracted to use a leisure centre run by D and was injured when one of the exercise machines malfunctioned.
        
        Issue: Was D liable when the contract was silent as to SOC owed.
        
        Held: CA held that in the absence of an express term, only SOC could be implied was the standard demanded by the 1957 Act - common DOC to visitors.
        
        Pursuant to S.2(6) of the Act
        
        Fireman attending a fire, policemen executing a warrant are treated as if they had been given permission to enter by occupier
        
        Disabled Visitors
        
        Atkins v Butlins Skyline (2006):
        
        Facts: C (a blind visitor) was trapped by closing lift doors at D's holiday camp although it was considered safe for sighted visitors.
        
        Held: D the occupier was held liable. Occupier must take greater care for that visitor's safety than a sighted person
    - - The OLA 1957 is silent on the meaning of premises and there is no fixed definition.
        
        A limited definition is provided in S1(3)(a): A person having occupation of control of any '...fixed or moveable structure, including any vessel, vehicle and aircraft..."
        
        Hence common law applies
        
        Liability depends on fault and is not strict liability
        
        Lewis v Six Continents Plc (2005):
        
        Facts: C fell out of a window on the 2nd floor of D's hotel. It was unclear what happened but there's evidence that C was drinking and might've leant out of a window to get some air. The window had no limiter and could be opened fully. C argued that the height of the window to the floor was not approved in good practice and all windows above ground floor should have limiter or a guard.
        
        Held: Hotel not liable under S(2) OLA 1957 as it was not reasonably foreseeable that an adult would lean out of a window in such a way as to say that the occupier should've limited the way the window opened.
        
        Leverton v Kiapasha (2002):
        
        Facts: C slipped excess rainwater that had gathered on the floor of the premise. 1st instant C won but D appealed the decision.
        
        On appeal held that it was not reasonably practicable to expect owners of a premise concerned to mop up rainwater. A doormat could've easily prevented that. An accident would've been avoided if the customer had taken reasonable DOC to care for her own safety.
        
        Held: CA held that whilst an occupier must take reasonable DOC to care for his visitors + safety, he cannot guarantee their safety. Nobody is perfect.
- - - - Wheat v E Lacon & Co Ltd (1966):
        
        Occupier must have some degree of control
      - China Insurance Co Ltd v Woh Hup (Pte) Ltd (1977):
        
        Facts: C (worker under Cheng Meng) was delivering cement where he got electrocuted when his wheelbarrow went over live electrical cables. China Insurance (insurers of Cheng Meng) had to pay compensation in respect of his death. They brought action against main contractors of Woh Hup.
        
        Held: Chua J gave judgement for C on grounds that the contractor was the occupier of the site by reason of having sufficient degree of control over the site to place him under a DOC towards lawful visitors. Applying the test laid down in Wheat v Lacon held that contractor of a construction site is the occupier of the premise.
    - - Lift - Haseldine v Daw & Son Ltd (1941)
        
        Aircraft - Fosbroke-Hobbes v Airwork Ltd (1937)
        
        Ships in dry docks - London Graving Dock v Horton (1951)
        
        Vehicles - Hartwell v Grayson (1947)
        
        Ladder - Wheeler v Copas (1981)
    - - Contractual Entrants:
        
        (A) Main purpose tenant:
        
        Person who enters the premise for the purpose of occupying it, and who paid to be on the premise i.e. guest in a hotel
        
        OL is to ensure premise is safe and adequate for which its contracted out, and must employ and exercise reasonable DOC
        
        (B) Ancillary purpose tenant:
        
        Persons who paid to be on the premise for primary purpose of an activity
        
        e.g. patron at cinema, passenger at bus
        
        Occupier's duty is to ensure premise is safe for that specific purpose
        
        (A) MacLenan v Segar (1917):
        
        Facts: Fire broke out at D's hotel and C was injured whilst he was trying to escape from 2nd floor of building.
        
        Held: D held liable for failing to ensure that premise was safe for habitation as there was no emergency way out.
        
        (B) Hall v Brooklands Auto-Racing Club (1933):
        
        Facts: Some spectators at a car racing competition injured when 2 cars collided.
        
        Held: D held not liable as it was found that they had discharged their duty in ensuring that the stand was free from any danger was far as was reasonable in the circumstances.
      - Invitees:
        
        (A) Business visitors:
        
        People who bring economic advantage to the occupier
        
        (B) Legally authorised entrants
        
        Persons who enter premises on the authority of the law
        
        e.g. policeman, fireman
        
        (A) Indermaur v Dames (1866):
        
        Facts: C's gas-fitter fell through a hole in the floor and injured himself whilst trying to fit gas pipe's at D's sugar factory
        
        Held: Although it was unusual danger, an occupier must take reasonable DOC to avoid any danger that can arise from extraordinary danger that he should've known
        
        (A) Lau Tin Sye v Yusuf bin Muhammad (1973):
        
        Facts: C travelled on D's tractor with permission and was injured by blades of tractor whilst trying to help D adjust to blades while engine was running.
        
        1st instance: D found liable; D appealed.
        
        Held: CA held allowing D's appeal: even if a tractor is said to be a structure and that its D is the occupier, it will be a misuse of the English language to say that D entered upon it. (there must be a dangerous condition on the premise before liability is imposed)
        
        (B) Shamsuddin v Yap Choh Teh & Anor (1969):
        
        Facts: Policeman injured when splinter from an explosion hit his eye. Due to government emergency + political problems, use of bombs for blasting works at a quarry must be monitored by policeman
        
        Held: Policemen was an invitee and DOC is owed to him so that he won't be injured by any negligent method of detonating the explosives. D's contractor found guilty
      - Licensees:
        
        (A) Entrant as of right
        
        Those who have right to enter into premises open to public
        
        e.g. public park, public pool train etc
        
        (B) Social visitors
        
        One who enters into private premises with permission of D (occupier) or by invitation
        
        (B) Yeap Cheing Hock v Kajima - Taisei Joint Venture (1973):
        
        Facts: A geologist was injured during a visit to a mine, the visit being for his own purpose and no benefit of D
        
        Held: D found liable as the cause of injury was a projection of rock in the tunnel and it was a concealed danger where D should have known.
        
        (A) Aiken v Kingborough Corporation (1939):
  - - - Glasgow Corporation v Taylor (1922):
        
        Facts: A 7 year-old child ate poisonous berries in a botanical garden and died. The shrub on which the berries grew was not fenced off in any way.
        Held: D should have expected that the berries might naturally attract a young child's interest and the occupiers held liable
      - Sinuri bin Tubar & Anor v Syarikat East Johore Sawmills Sdn Bhd (1987):
        
        Facts: D operated a sawmill and provided a restroom for their workers. The bathroom attracted inhabitants from a nearby village where they had no piped water. C (an 11 year-old) went to bathe in D's compound where while crossing D's yard his hand got trapped under logs and had to amputate his hand.
        
        Issue: Whether the timber logs was an allurement
        
        Held: Court said that even if an object is considered an allurement, you must also determine the circumstance of each case. In this case the logs in a private yard is not an allurement. D also posted warning signs prohibiting unauthorised entry.
- - - - Allurement Principle:
        
        Occupiers are held liable to children who have been attracted by "traps" on certain parts of their premises and subsequently suffering injury
        
        e.g. fruits, plants, objects etc
        
        Jolley v London Borough of Sutton (2000):
        
        Facts: Council failed to remove an abandoned boat from an estuary shore for 2 years. Children regularly played in the boat. 2 boys, aged 14 years jacked the boat up to repair it but the boat fell on one injuring him.
        Held: HoL felt that it was an obvious risk that children playing on/near the boat may be injured. It's sufficient that some risk is foreseeable. Council = liable.
      - Old cases prior to OLA 1957
        
        Glasgow Corporation v Taylor (1922):
        
        Facts: 7 years-old was playing in a park, noticed some poisonous berries in a bush. Bush was not fenced off. Child ate the berries and died.
        
        Held: D (occupier of land) was liable as berries constituted an "allurement" / "trap" to the child.
        
        Unresolved issue: The degree to which occupier's are obliged to make their premises safe for unaccompanied children?
        
        Phillips v Rochester (1955):
        
        Facts: 5 year-old boy was walking across open ground with his 7 year-old sister. He wasn't accompanied by an adult. He was injured when he fell into a trench.
        
        Held: The Corporation were not held liable as an occupier is entitled to assume that prudent parents will not follow their children to go unaccompanied to places that are unsafe.
      - Cases post OLA 1957
        
        Simkiss v Rhondda Borough Council (1982):
        
        Facts: 2 little girls were sliding down the side of a mountain on a blanket. They flew over a 30-foot bluff and were injured. Their parents said that the local authority should've fenced the area off.
        
        Held: Court held parents should've told the kids not to play on dangerous land. CA concluded that child's father didn't consider the area dangerous, as such it could not be expected that D can keep such a high SOC.
        
        Bourne Leisure v Marsden (2009):
        
        Facts: C had taken their children to a holiday park. Children briefly evaded attention of their mom who was talking to another holiday-maker. And the older child (aged 2) drowned in a pond. There was a path to the pond that was fenced but the child could climb over the fence.
        
        Held: CA revisited Phillips case and held there was no breach of DOC by the occupier under OLA 1957.
  - - - Roles v Nathan (1963):
        
        Facts: 2 chimney sweeps died while inhaling carbon monoxide fumes while cleaning industrial chimney. Occupier had warned them not to continue work while the boiler was alight due to danger from the fumes if they continued.
        
        Held: Occupier not liable as he had discharged his DOC under OLA 1957 by warning them of the risk
      - Vicarious liability of employer:
        
        Tradesmen might still have actions against their employer if the latter had agreed to an unsafe system of work
        
        General Cleaning Contractors v Christmas (1953):
        
        Occupiers were not liable for an injury sustained when a window cleaner fell after a window closed on him, but the employers were liable under vicarious liability.
      - Discharge of Duty - Warning:
        
        Providing an appropriate warning, such a notice is one of usual means of discharging the duty. But the Act has something to say about the adequacy of such warnings.
        
        S2(4)(a) OLA 1957:
        
        (4) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) -
        
        (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 from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe;
        
        White v Blackmore (1972):
        
        Facts: C's husband was killed in a field when a car in a race became entangled with safety ropes. A notice at a entrance had stated "Warning to the public. Motor racing is dangerous, and the organisers won't be responsible for any accidents causing damage or injury".
        
        Held: CA held that this notice was effective.
        
        Tomlinson v Congleton BC (2003):
        
        Facts: D was the occupier of a beach and a lake, and there were notices warning visitors not to swim. C ignored the notice, dived in, hit his head and suffered paralysis.
        
        Held: Dismissed C's claim under OLA as he was not injured by a defect on state of premises. Instead he was injured by his own decisions to undertake dangerous activity on his premises. Occupier was not liable for C's misjudgement (stupidity)
  - - - Haseldine v Daw (1941):
        
        Facts: C died following negligent repair of a lift by independent contractors hired by Occupier (D).
        
        Held: D held not liable as repair of a lift is a highly specialist activity and cannot be expected of the occupier. Court accepted that D discharged his duty by hiring a "supposedly" competent contractor to carry out the work.
      - Bottomley v Todmorden Cricket Club (2003):
        
        Facts: A firework display resulting in injury to C.
        
        Held: CA held D (Occupier) liable for an accident caused by contractors putting on a firework display, as it was a "ultra-hazardous" activity. So D had a duty to check on the competence of contractors and also whether they were insured.
      - Gwilliam v West Herfordshire Hospital NHS Trust (2002):
        
        Facts: Trust allowed a contractor to operate a fundraising fair on its premises that included a "splat wall". C was injured when the wall failed to work correctly.
        
        Held: D's hospital had a DOC to ensure independent contractors providing fairground rides on its premises are adequately insured and found that the Trust discharged their duty by insisting its contract with contractor, that the contractor's insurance should cover liability to members of public using the fairground. D not liable.