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Occupier's Liability Act 1984 - Coggle Diagram
Occupier's Liability Act 1984
Background
Common law origin:
Per Lord Dunedin in Addie v Dumbreck (1929), trespasser was defined as: "...he who goes onto the land without invitation of any sort and whose presence is either unknown to the proprietor of if known, is practically objected to",
Common law prior to OLA 1984:
Addie v Dumbreck (1929):
Facts: C's son was killed when he wondered onto D's land and got caught in a wheel mechanism.
D had no trespassing sign posted on the premise
but was aware that people including children disregarded the sign
Held: Occupier of land has
no DOC towards a trespasser
for his protection or even to protect him from concealed danger.
The trespasser comes onto the premise at his own risk.
British Railway Board v Herrington (1972):
Facts: Child had got through the fence near the railway line. The board as occupiers were aware of the previous trespassers but failed to maintain the integrity of the fence
Held: Board held liable for injuries to a 6 year-old child playing on the railway line. HoL held that occupier of the railway premise owed
DOC of a common humanity to the child.
Until this case no DOC was owed to trespassers.
Cases post-Herrington:
Southern Portland Cement Ltd v Cooper (1974):
Facts: A 13 year-old was injured playing on a large pile of waste cement that was allowed to accumulate close to an overhead wire near D's premise.
Held: Court took view that since danger was created by the positive activity of occupier, the test for liability must be objective and occupier held liable
Pannet v McGuiness (1972):
Facts: A 5 year-old child was playing near a building site where advertising hoardings were being burned. He had been warned away several times with other children he was playing with.
Held: Occupier was liable as his employees knew of the presence of the children and steps should've been taken to prevent accident on the child.
Harris v Birkenhead Corporation (1976):
Facts: D owned some empty properties that were favoured by vandals, specifically children. One day, a child entered the building through smash doors, went up the top floor and fell out of a window, suffering severe brain injury.
Held: Occupiers held liable.
Definitions
Who can be an "Occupier"?
The occupier is any person who as a sufficient degree of control over premises
Wheat v E Lacon & Co (1966):
Facts: D owned a public house 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 whilst trying to get to the bar on the 1st floor.
Held: HoL held that both the manager and the owners were occupiers. But neither was held to breach any duty - the bad lighting was caused by a stranger removing the bulb and they weren't responsible for a stranger's action.
What is a "Premise"?
Premises include all forms of buildings, land spaces, vehicles used for carrying persons including tractors, structures like scaffolding, ladders etc.
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)
Duty of Care (DOC)
DOC owed to non-visitors under OLA 1984:
S1(1)(a) OLA 1984:
An occupier owed a DOC to
"persons other than his visitors"
"with respect of any risk of them suffering injury on the premises by reason of any danger due to state of premise / things done or omitted do be done on them".
When does an occupier owe DOC? -
S.1(3) OLA 1984:
(A) - He is
aware of the danger
or has reasonable ground to believe that it exists
(B) - He
knows / has reasonable grounds to believe that the other is in vicinity of the danger
concerned
(C) - The
risk is one against which
with all circumstances
he may reasonably be expected to offer the other some protection
S1(3)(b) OLA 1984:
The key area is to determine
whether the occupier knows / has reasonable grounds to believe that a trespasser is in the vicinity of danger or may come into the vicinity
The courts will consider the:
nature and extent of risk
Type of trespasser
Practicality of precautions
White v St Albans District Council (1990):
S1(3)(b) OLA 1984 was considered by the CA
Facts: C had taken a shortcut across D's fence, off land and fell into a trench. C argued that D had taken steps to prevent people from entering the site, which meant that they believed that people were likely to do so and hence liable.
Held: CA held that although D had fenced off the land to prevent people from entering dangerous land, it didn't mean that the "reasonable grounds to believe" have been satisfied
Donoghue v Folkeston Properties (2003):
Facts: C had decided to go for a midnight swim but was injured diving and hitting a submerged bed. He broke his neck. Landowner appealed a finding that they were 25% liable. C asserted that D knew that swimmers were common.
Held: CA allowed the appeal. Test for DOC exist under S1(3) OLA 1984 to determine with regard to circumstances at the time of alleged breach resulting in injury to C. At the time, D does not have any reason to believe that C would be swimming from the area. Thus criteria S1(3)(b) not satisfied and no DOC arose
What is the duty owed? -
S1(4) OLA 1984
:
The DOC to take such care is reasonable in all circumstances of the case to see that the other does not suffer injury on the premises by reason of danger concerned
"The duty is to ...take such care as is reasonable in all circumstances to prevent injury to the non-visitor by reason of danger concerned"
Per Lord Hoffman in Tomlinson v Congleton (2004):
"To take into account not only the likelihood of injury but the seriousness of it that may occur, and also the social value of the activity that gives rise to risk and the cost of preventive measures
Factors to take into account:
The nature of the premise
The degree of danger
The practicality of taking precautions
The age of trespasser
Rhind v Astbury Water Park (2004):
Facts: C ignored a notice stating
"Private Property. Strictly no swimming"
and jumped into a lake, being injured by objects below surface of the water.
Held: C was a trespasser and the occupier had no reason to know that there was dangerous objects below the surface = no liability
Revill v Newbury (1996):
Facts: A burglar was injured when D (occupier) negligently shot him during a burglary.
In exercising duty, reasonable force can be used by occupier to evict trespasser, but the force must be proportionate to the force used by trespasser to enter the premise.
Discharge / Extent of duty
Warning -
S1(5) OLA 1984
:
"duty may be discharged by taking such steps as reasonable in all circumstances of the case to give warning of danger concerned or to discourage persons from incurring the risk"
Ratcliffe v McConnel (1999)
Donoghue v Folkestone Properties (2003)
Tomlinson v Congleton BC (2004)
Assumption of Risk -
S1(6) OLA 1984 - preserves the defence of volenti non fit injuria
:
"no duty is owed is respect of risks willingly accepted as his by that person"
The question is whether a risk was so accepted to be decided on the same principles as in other cases where a person owes DOC to another
Common law perspective on non-visitors
Who is a trespasser?
A person who enters premises without any express / implied permission of the occupier
Per Lord Dunedin in Addie v Dumbreck: "...he who goes on to the land without invitation of any sort and whose presence is either unknown to the proprietor of if known, is practically objected to".
Duty owed to trespasser
Addie & Sons v Dumbreck (1929):
This decision is no longer good law
British Railways Board v Herrington (1972):
HoL overruled Addie
Thus if the presence of the trespasser is known / reasonably foreseeable, the occupier owes a duty towards the trespasser to warn him of potential danger even though
DOC is lower than DOC owed to visitors
Applicable test in Malaysia:
It is subjective based on the occupier's knowledge of the danger on his premise
Metroplex Development S/B v Mohd Mastana bin Makaddas (1995):
Facts: C was working on D's working site in Ampang when a motor lorry owned and negligently driven by D's servant and violently collided with C who died as a result. Collision was solely caused by negligence of D's servant / agent
Held: To use the test whether an occupier is liable to a trespasser for loss/damage caused on the premise.
Sathu v Hawthornden Rubber Est Co Ltd (1961):
Facts: C's cattle stayed on D's rubber estate whilst grazing and cattle died as D sprayed a weedkiller.
Held: D (occupier) could not have foreseen the trespass by C's cattle so no duty
Child trespassers:
An occupier must accept that children are less careful as compared to adults
Safety of children mainly lies on their parents and hence an occupier has right to question this responsibility / lack of it if warnings given by him are considered sufficient
Lembagi Letrik Negara v Ramakrishnan (1982):
Facts: Child (10 years-old) climbed an electric pole under control of local govt to free a trapped bird and was electrocuted. No warning signs, barbed wire / spikes put up despite potential danger.
Held: D (occupier) found libale as they had erected and controlled a highly dangerous pole with great danger that was within reach of children.
Allurement Principle:
Occupiers are held liable to children who have been attracted by
"traps"
on certain parts of their premises and subsequently suffering injury
Glasgow Corporation v Taylor (1922):
Facts: & year-old while playing in park noticed some poisonous berries in a bush. The bush was not fenced off. Child ate the berries and died.
Held: D (occupier of land) was liable as the berries constituted an "allurement" / "trap" to the child"
Defences
Occupier who is sued may raise the defence of:
Volenti non fit injuria; or
That he has put up sufficient notice / warning
The form of device that prevents visitors from getting into contract with the danger