Tort B Occupiers Liability

Front 1

What happens if negligence occurs?

Back 1

Activity duties are dealt with by the rules of ordinary negligence, and occupancy duties by the special rules of occupiers’ liability.

Front 2

Can liability occur for an omission?

Back 2

Yes

Front 3

Types of entrances

Back 3

1) Contractual Entrance

2) Invitees

3) Licencee

4) Trespassers

Front 4

Contractual Entrance

Back 4

Those who had a right to enter due to a contract

Owed the highest standard of careDuty to see that the premises were as safe as reasonable care and kill could make them for the purposes contemplated by the contract

Front 5

Invitee's

Back 5

People who enter land with permission in furtherance of the occupiers purposes, share a “common interest” E.g. someone entering a shop.

The occupier owes the invitee reasonable care to protect him/her from “reasonable danger”. Duty to protect from an “unusual danger”

Front 6

Licencee

Back 6

People who are permitted to enter the land entirely for their own purposes.

Duty to warn of any “concealed dangers” or “traps” of which the occupier had actual knowledge of.E.g, friends invited to dinner by an occupier.

Front 7

Trespassers

Back 7

Duty to refrain from creating a danger intentionally or through a reckless disregard of the trespasser’s presence

There was never liability for an omission, only an act creating a danger and only if there was a intentional danger or a reckless disregard of the trespasses presence.

Front 8

Occupiers’ Liability Act 1957

Back 8

The common law has been put on a statutory footing through the enactment of the Occupiers’ Liability Act 1957 and 1984.

The Act covers personal injury and damage to property

Front 9

Section 1(1) - 1957

Back 9

Regulates the duty which an occupier of premises owes to his visitors in respect of:

1) "dangers due to the state of the premises" or

2)"to things done or omitted to be done on them.”

Front 10

Section 1(2) - 1957

Back 10

Defines who is a lawful visitor.

An Occupier is a person “who would at common law be treated as an occupier”.

Front 11

Section 5(1) - 1957

Back 11

Contractual entrances - For example paying guests at a hotel.

Front 12

Tomlinson v Congleton

Back 12

The council owned a park, in this park there was a lake formed by the removal of sand. The council hosted notices saying, “Dangerous water, no swimming” but people frequently swam into the lank. The claimant ran into the water and hit his head on the bottom of the lake, he sued the occupiers of the lake. It was clear that there was no danger from the state of premises, or things done on the premises. The risk that the claimant might sustain injury cannot be purported to the council, the lake contained no hidden dangers that one would not expect, the lake was shallow in some places and deep in the other, but this was the nature of lakes of this sort. As regards to things done on or omitted, for example if they allowed the speed bumps among the swimmers. However, Lord Hutton, thought that the fact the bottom of the lake was obscured because of the murky water could qualify as the state of the premises. Held: there was no danger from the state of the premises or omitted from the premises. If a person went mountaineering, he incurs the risk that be might stumble, in neither cases can the risk be attributed to the state of the premises, otherwise any premises can be said to be dangerous to someone who chooses to use them for some dangerous activity. The lake contained no danger which one would not expect.

Front 13

Tomlinson v Congleton principle

Back 13

1) No need to warn against obvious risks

2) The social value is important

3) The courts should be reluctant to imply a licence since the introduction of the 84 Act

Front 14

Fairchild v Glenhaven Funeral Services

Back 14

Risks arising from independent contractors for removing asbestos dust from the premises. They said that the occupiers act did not apply, it concerned an activity of the independent contractor and the occupancy act only spoke about the static condition of the premises. This view is probably wrong and it probably a misreading this is because the old cases concerned the defendant or the defendants employee, these cases are distinguishable in fairchild because the activity in question is of that of an independent contractor. The duty imposed upon the occupier probably do extend to controlling the parties coming onto your land,should they pose risks to other people on land (example given from Lord Hoffmann in Thomlinson). However, this does not mean that the independent contractors are liable, but to say not duty is imposed at all under the act is probably wrong.

Front 15

Section 2(2)

Back 15

'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.'

Front 16

Section 1(3)

Back 16

Occupiers can be liable for fixed or moveable structures.

Fixed structure = a grand stand or a pier. Moveable structures = scaffoldings, ships, trains etc.

Front 17

Occupier Test

Back 17

Section 1(2) - Occupier is the same at common law.

Denning dictum in Wheat v Lacon - if he or she has sufficient degree of control over the state of the premises.

(Wheat v E Lacon & Co)

Front 18

Wheat v E Lacon & Co

Back 18

The defendants, Lacon, a brewery, owned a public house which they allowed the Richardsons to live in the accommodation above the pub, not as tenants but as licensees. The brewery had given the Richardson’s permission to take in paying guests in pat of the upstairs accommodation. The plaintiff was a paying guest who fell down the stairs and was injured. The stairs were dangerous because the handrail did not go all the way to the bottom, and it was unlit. Held: Lacon had retained sufficient control over the upstairs part of the premises to be regarded as occupiers. Moreover, Richardson, as license to occupy, had retained control as well. 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 was not party to the appeal the claimant’s action failed.

Front 19

Wheat v E Lacon & Co principle

Back 19

1) There can be more than one occupier

2) Where the owner of premises licenses others to occupy those premises, but retains the right to enter the premises, he/she remains an occupier. Unlike a situation where owner grants a tenancy.

Front 20

Harris v Birkenhead Corporation

Back 20

the defendants compulsorily purchased a house and let it out to X. X then left without telling the defendants, and the house became vacant. The claimant, entered the house and fell from the window. Held: the defendants were occupiers, even though they had never entered the property, because they had an immediate right to enter.

Front 21

Are Landlords an occupier when houses are lent on a tenancy.

Back 21

No.

Front 22

Ferguson v Welsh

Back 22

The council needed one of their buildings demolishing. A contractor bought in a sub-contractor, against the wishes of the council. One of the sub-contractor’s employees was injured. Could the council be held liable? Held, no, a major contractor with a significant degree of control over the site may be classed as an occupier. Such an occupier may invite others onto the premises contrary to the permission of the usual occupier

Front 23

Definition of premises

Back 23

Section 1(3)(a) - states that the Act regulates the obligations of persons occupying or having control over:Any fixed or moveable structures

Front 24

Who is owed a duty under the 1957 Act? Section 1(2)

Back 24

Anyone who is a lawful visitor.

Section 1(2) - Anyone is a visitor who would have been either an “invitee” or a “licensee” at common law before the Act was passed.

1)Persons entering by authority of law.

2) Express permission - (Ferguson v Welsh)

3) Implied permission Every day activities

4) Occupier is aware that people go onto their land and does not do anything.

Front 25

Persons entering by authority of law.

Back 25

Section 2(6) - A person entering premises in the exercise of a right conferred by law (fireman) are treated as if they had been given permission by the occupier. This is not implied permission, but of deemed permission, because these persons are treated as visitors even when the occupier expressly states that he or she does not want them on the premises.

Front 26

Section 2(6) -

Back 26

A person entering premises in the exercise of a right conferred by law (fireman) are treated as if they had been given permission by the occupier. This is not implied permission, but of deemed permission, because these persons are treated as visitors even when the occupier expressly states that he or she does not want them on the premises.

Front 27

Lowery v Walker

Back 27

The plaintiff was using a short cut across a farmer’s field when he was attacked by a horse. The farmer knew that the short cut had been regularly, although he never brought leal proceedings he protested. Held; despite protests the farmer had given implied permission. Therefore claimant won.

Now that trespassers are afforded greater protection under the Occupier’s Liability Act 1984 there is less need for the courts to resort to implied permission (Glasgow Corp v Taylor)

Front 28

Cooke v Midland Great Western Railway Co of Ireland

Back 28

The railway company knew that children played on a turntable. They did not try to stop the children from being on the turntable. Held, implied consent was found for the child to be on the premises, as steps were not taken to prevent children playing. Implied licences were easier to find prior to the 1984 Act, as otherwise (almost) no duty could be owed

Front 29

Edwards v Railway Executive

Back 29

A claimant child got through a fence, the claimants were aware that the children did this so they regularly tried to fix the fence. The child then got injured. Held: No implied licence where attempts to repair continually.

Front 30

Lowery v Walker

Back 30

A farmer knew that people were trespassing on his land, using it as a shortcut. He wished not to take legal action, as some of the trespassers were his customers. He placed a vicious horse on his land, which injured the claimant. There was no warning about the savage horse as upon entry. Held: there was an implied license because the failure to take legal proceedings and a licence was said to have been granted to the claimant through repeated trespass

However, on these facts it probably wont be decided again today.

Front 31

The Calgarth per Scrutton

Back 31

“When you invite a person into your house to use the staircase you do not invite him to slide down the banisters.”

Front 32

Harvey v Plymouth City Council

Back 32

Three youths had been out drinking, they realised they didn't have enough money to pay so they stopped the taxi and ran off. He ran across council land at speed and fell, he claimed that they should have put up a fence. Held: while there is implied permission this did not extend to the reckless running away of the claimant so he was therefore a trespasser.

Front 33

Geary v J D Wetherspoon plc

Back 33

Geary decided to slide down the bannisters where she was then injured. There had previously been injuries, the court asked “was this a risk you took upon yourself”, she said yes. Held: the volenti case occurred.

Front 34

Risk v Rose Bruford College

Back 34

A student suffered injuries when he dived into an inflatable pool, hitting his head. He sued, it was agreed that the college owed a general duty of occupier under section 2 but the judge asked whether the scope of duty extending to protecting the claimant from the risk of his behaviour. Held: no it did not.

Front 35

Section 2(1)

Back 35

An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

Front 36

Pollock v Cahill principle

Back 36

It is the visitor rather than the premises which must be reasonably safe.

Front 37

Robson v Hallett

Back 37

A police officer was asked to leave premises, having been granted an implied licence to enter to make enquiries. Before being given a chance to leave, a relative of the occupier applied force to the officer. Was this force lawful? no it was assault. An occupier must give that licensee reasonable time to leave. He was not a trespasser at the time he hit him so that force was thereby unlawful.

Front 38

Who may give or refuse permission?

Back 38

Wheat v Lacon

Ferguson v Welsh - The local authority employed a contractor to demolish a building held that the contractor had authority to invite a sub contractor onto the site,

Front 39

Holden v White (private)

Back 39

Milkman, was injured on the defendant’s land by a manhole cover which broke when he stepped on it. At the time he was delivering milk to the house of a third party who had a right of way across the defendant’s land. It was held that he was not entitled to claim against the defendant since he was exercising a right of way and was not therefore a lawful visitor of the defendant.

Front 40

Is a person exercising a public or private right of way a visitor of a land for the purposes of the 1957 act.

Back 40

No

Front 41

The 1957 Act does not extend protection to:

Back 41

1) Trespassers

2) Invitees who exceed their permission

3) Persons on the land exercising a public right of wayGreenhalgh v British Railways Board 4) Persons on the land exercising a private right of way:Holden v White

Front 42

Hall v Holker Estate

Back 42

The occupants knew that a certain goal post was defective and could fall down. The goal post fell on the claimant.Could the defendants be held liable? yes because it would be reasonable to expect, under s 2(2) of the 1957 Act that a daily inspection was carried out on a known hazard. Failure to do so resulted in liability.

Front 43

Tedstone v Bourne Leisure

Back 43

The claimant slipped in a pool of water at the defendant’s leisure facility. Could the hotel be liable? no because the water had never gathered at the particular location of the incident, and regular inspections were carried out; minute by minute inspections could not be required

Front 44

Risk v Rose Bruford College

Back 44

A student union held an event on the defendant’s land. The claimant dived into a paddling pool after a run-up and was injured. Held a proper risk assessment would have only provided for a supervision rota and a rota of that kind would not have prevented the accident, they would not have taped off the pool, this would have been a disproportionate action.

Front 45

Corbett v Cumbria Kart Racing Club

Back 45

The claimant crashed into a tyre wall while go-karting and suffered personal injuries. Could the defendant be held liable? yes because in such an activity, a risk assessment should have been carried out to satisfy the requirement of reasonable care under s 2(2) of the 1957 Act. Such an inspection would have identified that the tyre wall of subject was insufficient to satisfy the requirement

Front 46

Wilson v GP Haden

Back 46

The claimant was injured in descending a vertical pole at an activity centre. A risk assessment had recommended that such a descent be demonstrated by an instructor, which did not occur. Could defendants be held liable? yes this was a breach of duty.

Front 47

Pollock v Cahill

Back 47

Pollock who was blind, was staying at Cahill’s, it was found that Cahill opened a window in which Pollock was going to use that bedroom. Pollock went to go to the bathroom but fell through the window to the ground. Held: because Cahill knew that their visitor was blind, they should have made preparations for his arrival, this was held to be a significant risk.

Front 48

Section 2(3)(a)

Back 48

.children.

“2(3)(a) an occupier must be prepared for children to be less careful than adults;”

In discharging the duty of care, an occupier must bear in mind that children are attracted to certain objects, unaware that they are dangerous. This happened in Glasgow v Taylor and Jolley v Sutton

Front 49

Moloney v Lambeth BC

Back 49

4 year old boy fell through a staircase in a block of council flats, an adult could not have gotten through. Held, as occupiers they should have realised this risk therefore they were held liable.

Front 50

Cooke v Midland Great Western Railway Co of Ireland

Back 50

Defendants held liable to a child visit when the turntable where they were playing moved. Obviously kids would play on the turntable so with that knowledge, they should have prevented kids from playing on the turntable

Front 51

Glasgow Corporation v Taylor

Back 51

A 7 year old boy died after eating poisonous berries in a park, they looked like blackberries and appeared attractive to children. This bush had been fenced from the public but there was no sign. Held: 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.

Front 52

Jolley v Sutton

Back 52

The council was in breach of their duty of care by allowing a wooden boat to be abandoned on its land. Jolly and his friend attended to repair the boat and was injured. Held: the accident was reasonably foreseeable for boys attracted to a boat.

The decision in Jolley makes it clear that the courts will apply the rules of occupier’s liability generously towards children.

Front 53

What happens with very young children?

Back 53

The law provides that an occupier is entitled to assume that the behaviour of very young children will be supervised by a responsible adult.

Front 54

Phipps v Rochester Corporation

Back 54

A 5 year old was accompanied by his sister, the boy then fell into a trench injuring himself. The council knew that children played in the open space and took no steps to prevent them thereby giving rise to an implied license.The trench would have been an obvious danger to an adult. Held: the councils only duty to very young children was to ensure that they were reasonably safe on the site when accompanied by a responsible adult, this duty had been discharged on the facts.

Front 55

Simkiss v Rhondda BC

Back 55

A father left his two young children at the bottom of a hill. The children climbed, and fell. Could the council be held liable? Held: an occupier is required to take account of the social habits of the neighbourhood in which his or her premises are situated. Therefore, where a piece of land becomes recognised as a playground for unaccompanied small children, an occupier must ensure that these children are reasonably safe. This was not the case here and it was expected that the children would be accompanied because it was an obvious danger.

Front 56

Section 2(3)(b)

Back 56

"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".

The expert can be taken to know and safeguard themselves against any dangers that arise from the premises in relation to the calling of the expert.

Front 57

Roles v Nathan

Back 57

Chimney sweepers were hired, they were warned by a heating expect that the boiler was dangerous and that there was a risk of carbon monoxide poisoning if they worked on it when lit. Unfortunately they took no notice, they then died. Held: Denning - “ when a householder calls in a specialist to deal with a defective installation o his premises, he can reasonably expect the specialist to appreciate and guard against the dangers arising from that defect".

However, Peason LJ - took a different approach saying that the risk of the boiler being lit was not a risk with the ordinary to the sweep’s calling. Rather it was a special and unusual risk, shown by the fact the defendants felt it necessary to give repeated warnings.

Front 58

Christmas v General Cleaning Contractors

Back 58

A window cleaner adopted a method of cleaning windows, but the window moved and the window cleaner was injured. Held: risk of the window moving was known to the window cleaner, the occupier would then rely on the window cleaner knowing this.

Front 59

Section 2(4)(a) 1957

Back 59

Concerns warning visitors.

Only a warning which enables the visitor to be reasonably safe will avoid liability.

This is different to the 1984 act

Front 60

White v Blackmore

Back 60

Denning held that under section 2(4)(a)the warning must make th claimant reasonably safe, however, here was not the case because the warning side not tell him how to avoid the danger, just that “motor racing is dangerous”. A warning “this bridge is dangerous” would not be exempt from the occupiers liability (Roles v Nathan) nor if the warning said, “enter at your own risk”. However, on the case, reasonable steps had been taken to bring the notice to the attention of the claimant

Front 61

Roles v Nathan

Back 61

Denning explained the position: “suppose that there was only one way of getting into and out of a premises and it was by a footbridge over a stream which was rotten and dangerous. According to the old law the occupier could escape liability to any visitor by putting up a notice “this bridge is dangerous”, even though there was no other way by which the visitor could get in or out.In such case, s2(4) makes it clear that the occupier would nowadays be liable. But if there were two good bridges, one which was rotten, and the other safe, the occupier could still escape liability by putting up a notice, “dangerous footpath, there is another path at X”. Such a warning is sufficient because it does enable the visitor to be reasonably safe. In Roles v Nathan the chimney sweeps had been given clear warnings of the danger, these warnings enabled the sweeps to be reasonably safe, by making it clear that they could avoid danger.

Front 62

is this a warning? :“visitors enter at their own risk”

Back 62

No it is an attempted to invoke a defence of voluntary assumption of risk.

Front 63

Darby v National Trust

Back 63

The claimant drowned in a pond of deep murky water, the defendants were under no duty to place notices around the pond warning of this risk - there were no hidden dangers in the pond.

Front 64

White v Blackmore principle

Back 64

Reasonable steps had been taken to bring the warning to the attention of the claimant

Front 65

Lough v Intruder Detection and Surveillance Fire & Security

Back 65

An alarm engineer went to a house which was in the course of renovation and there was no banisters next to the main landing, the engineer turned up unexpected. He warned them that there was no bannister, the trial judge held that the warning was not sufficient and this was not challenged in the CoA. Contribution negligence applied. The employer was held 75% liable and Lough 25%.

Front 66

Section 2(4)(b)

Back 66

Independent contractors

Front 67

How to not be held liable for the independent contractor:

Back 67

1) Reasonable to entrust the work to an independent contractor

2) Occupier took reasonable steps to satisfy himself or herself that the contractor was competent (Bottomley v Todmorden Cricket Club)

3) Occupier took reasonable steps to satisfy himself that the work had been properly done.

Front 68

Bottomley v Todmorden Cricket Club

Back 68

The cricket club engaged an independent contractor to conduct a display. However, this display went wrong and Bottomley was injured. Held: The independent contractor and the cricket club were liable because the activity was obviously dangerous and required care in picking the contractors. The club should have properly checked the independent contractors and if they had they would have realised that they were incompetent.

Front 69

GWilliam v West Hertfordshire Hospital NHS Trust

Back 69

Hospital hired an independent contract to build a splat wall. Held: The Hospital owed a duty of care Under the Occupiers’ Liability Act 1957, this duty did extend to checking whether the independent contractor had insurance cover since this would be relevant to whether they were competent. However, there was no breach of duty since the Hospital had enquired and had been told by Club Entertainment that they had insurance cover. There was no duty to inspect the insurance documents to ensure that cover was adequate.

Front 70

Payling v Naylor

Back 70

Payling was injured by a door attendant, owned by Naylor. The door attendant had been employed by an independent contractor, he was not an employee of Naylor. CoA held that it may be that in some cases any reasonably competent contractor would have liability insurance therefore checking on this insurance is linked with checking that that contractor is reasonable. However, this does not apply in all cases, in this case there was evidence that the independent contractor was competence therefore Held: did not have to check that they have liability because it was assumed.

Front 71

Woodward v Mayor of Hastings

Back 71

A cleaner was employed by the owner of the school premises but not by the school. That cleaner did not remove snow from the step, they noticed the snow but did nothing about it, the boy slipped and was injured. Held: liable because the cleaning of the step was not a specialist task and the danger was obvious. Therefore, they should have seen that the job was done.

Front 72

Haseldine v Daw

Back 72

The plaintiff was injured where a lift in a block of flats fell to the bottom of its shaft, due to the negligence of the independent contractors. Held: the occupier had discharged his duty to visitors by engaging an apparently competent firm of engineers to maintain the lift. Because the work carried out on the lift was of a technical nature, the occupier could not be expected to ensure hat it had been properly done. It was reasonable for him to leave the maintenance of the lift to an expert.

Front 73

Alexander v Freshwater Properties

Back 73

Faulty door, which a contractor was in the process of fixing and the occupier knew , the claimant then injured his fingers. Who was liable? Held both the contractor and the occupier 50:50. Contractors work faulty, occupier knew, both failed in their duties

Front 74

Ferguson v Welsh

Back 74

The Council engaged the services of an independent contractor. It was a term of the contract that the work was not to be sub-contracted out. The independent contractor breached this term and employed a sub contractor. The sub contractor, Ferguson was then injured. Held: Ferguson was a lawful visitor despite the clause forbidding sub-contracting. However, the danger arose from the unsafe system of work adopted by the sub contractors, not the state of the premises. Whilst there was evidence that the independent contractor had sub-contracted demolition work to those executing unsafe practices on previous occasions, there was no evidence that the Council were aware of this.

HoL held that exceptional cases, an occupier who becomes aware that the contractor’s employees are obviously in danger night be under a duty to ensure that dangerous working practises are stopped. Lord Goff, however doubted whether an ordinary householder could really be expected to challenge the working praises of an electrician, even if he knew that those working practises were dangerous.

Front 75

Exclusion of Liability Section

Back 75

Section 2.1

Front 76

White v Blackmore [1972]

Back 76

The claimant (deceased) attended a race meeting. In the morning, he raced as a competitor, and in the afternoon was killed in the capacity of a spectator. He did not leave the premises of the defendant all day, and at the entrance to the premises was a notice excluding liability to all spectators. Could the defendants be covered by the exclusion, yes because reasonable steps had been taken to bring the notice to the attention of the claimant. The defence of volenti was unsuccessful because Denning held that no doubt the visitor takes on himself the risks inherent in motor racing, but he does not take on himself the risk of injury due to the defaults of the organisers. The result may be a different result today due to the UCTA section 2.3.

Front 77

Ashdown v Samuel Williams & Sons

Back 77

Before UCTA - The Court of Appeal held that an occupier could exclude liability by displaying a notice disclaiming as such, and they reasonably tried to bring the notices to the attention of the visitor, even if the claimant had not read the notice. However, in modern day, the defendant would be unable to rely on the notice to exclude liability for personal injury because the notice would be void under section 2(1) of the UFCA 1977.

Front 78

Contractual enteree duty of care

Back 78

Where a visitor enters premises in accordance with a contract governing his/her entry, occupiers may include in that contract an express term which specifies the standard of care owed to their visitors. Where there is no express term or it is void under UCTA. Section 5(1) implies into the contract, a “common duty of care”.

Maguire v Sephton MBC

Front 79

Maguire v Sephton MBC

Back 79

Injured on an exercise machine at a leisure centre. Trial judge held there was an implied term that the machine was reasonably safe. CoA held that was too high, the only implied term was that the council had taken reasonable care in relying on the reputable supplier.

Front 80

Third parties principles

Back 80

Section 3 of the 1957 act deals with a situation where an occupier enters into a contract with A, permitting him to use his land, and the contract contains an express term setting a standard of care relating to A, and the occupier agrees to let B enter the premises.

In such cases, section 3 provides that if the relevant term of the contract stets a standard of care lower than the standard set in the 1957 Act then that term does not apply to B. Instead, B is owed a common duty of care under the act. However, if the terms standard of care is higher than the Act demands, B is entitled to benefit from the term, unless the contract expressly prohibits.

Front 81

Defences to liability

Back 81

1) UCTA

2) Contributory negligence

3) Volenti non fit injuria

Front 82

The OLA’s exclusion is limited to the UCTA

Back 82

Section 2 of UCTA

Prerequisite of business liability is needed, as stated by section 1(3).

S2.1 - Cannot exclude or restrict liability for death or personal injury resulting from negligence.

s2.2 - Can exclude or restrict liability for other types of loss only if it satisfies the requirement of reasonableness.

s2.3 - A term which purports to exclude or restrict liability for negligence, the persons agreement or awareness is not to be a voluntary acceptance of the risk.

Front 83

Business liability

Back 83

Section 1(3) defines business liability as liability for the breach of an obligation arising from “things done… in the course of a business… or .. from the occupation of premises used for business purposes of the occupier”.

Clearly, an ordinary householder, unless he is using their house for business purposes, will not be affected by the 1977 Act. An occupier using his land for business purposes (farming) but allowing people to access that land for the purpose unrelated to that business (to get to a park) is not business liability as made clear by section 2 of the Occupier’s Liability Act 1984. Unless that farmer is charging money for this. The farmer would then only be able to exclude liability for occupancy duty, not activity duty.Section 14 UCTA - Business liability includes activities of government departments and local authorities.

Front 84

Consumer Rights Act 2015 Part 2 65(1)

Back 84

Cannot exclude/restrict liability in a consumer contract for death or personal injury resulting in negligence.With regard to other loss or damage (such as death or personal injury not resulting from negligence), the trader can only limit its liability if the clause is ‘fair’.

Whether a term is fair is determined by the fairness test, set out in section 6265(2) - Where a term excludes of restricts liability for negligence, a person is not to be taken to have voluntarily accepted any risk because they knew or agreed about the term. This bars people of the velenti defence.

66(4) - Section 65 does not apply where the visitor obtains access to the premises for recreational purposes if:

a) the person suffers loss or damage because the dangerous state of the premises, and

b) Allowing the person access for those purposes is not within the purposes of the occupiers trade, business etc.

Rock climbers climb across farms, even though doing this has nothing to do with farms so farmers have protection under section 66.

Front 85

Exclusion of liability

Back 85

Whereas the 1957 Act allows an occupier to exclude liability (subject to the provisions set out in UCTA 1977), the 1984 Act does not expressly confer such a right. This may be an oversight by the legislature and it may be possible to exclude liability since it is not expressly forbidden or it may be that the legislature was of the opinion that it should not be possible to exclude liability for the basic level of protection afforded to trespassers.

Front 86

Volenti non fit injuria

Back 86

This is expressly recognised by section 2(5) Occupiers Liability Act 1957 and s.1(6) OLA 1984. No duty of care is owed in respect of risks willingly accepted by the visitor. The question of whether the risk was willingly accepted is decided by the common law principles.

Front 87

The Occupiers’ Liability Act 1984 - Common law

Back 87

Duty : merely to refrain from acts which would injure them.

Front 88

R Addie & Sons (Collieries) v Dumbreck

Back 88

The defendant owned a Colliery which was situated in a field adjacent to a road. There was a fence around the perimeter of the field although there were large gaps in the fence. The field was frequently used as a short cut to a railway station and children would use it as a playground. The defendant would often warn people off the land but the attempts were not effective and no real attempt was made to ensure that people did not come onto the land. A child came on to the land and was killed when he climbed onto a piece of haulage apparatus.Held: No duty of care was owed to trespassers to ensure that they were safe when coming onto the land. The only duty was not to inflict harm wilfully.

Front 89

British Railways Board v Herrington

Back 89

A trespasser, the claimant, was electrocuted by the defendant’s railway line. The trespasser entered the property through a fence which had been previously pushed down as a shortcut to a park. The defendant knew of the fence defect because 7 weeks before, tan employee reported this. Held: The HoL overruled the R Addie & Sons v Dumbreck case. A humanitarian attitude is expected towards trespassers, duty of “common humanity” is needed, however there is only a requirement to take reasonable steps to allow a trespasser to avoid risks. The claimant was a 6 year old child. The result would now be the same under the Occupiers’ Liability Act 1984.

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Section 1(1)(a) 1984 act

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Danger to the state of the premises or things done on the premises.

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Section 1(3) Occupiers Liability Act 1984

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An occupier owes a duty to another (not being his visitor) if:

(a) He is aware of the danger or has reasonable grounds to believe that it exists

(b) He knows or has reasonable grounds to believe the other is in the vicinity of the danger or may come into the vicinity of the danger (Lord Evans - shut eye knowledge)

(c) The risk is one in which in all the circumstances of the case, he may reasonably be expected to offer the other some protection

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Requirement to be reasonably safe when giving warning under 1984 act?

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Unlike in the 1957 act, when someone tried to warn about the danger ahead, there is no requirement that the warning must enable the entrant to be reasonably safe.

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S.1(4) OLA 1984 -

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The duty is to take such care as is reasonable in all the circumstances of the case to see that the other does not suffer injury on the premises by reason of the danger concerned.

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Swain v Puri

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A 9 year old child feel through a skylight on a factory’s roof. Held: Under section 1(3)(a) the occupier was aware that the roof was defective. However, no knowledge of vicinity under s 1(3)(b) of the 1984 Act.There was common knowledge of children to trespass. CoA held that you had to have more than foreseeability, the premises were fenced, no signs/reports that people had trespassed in the past. Lord Evans said the clamant must prove actual knowledge, including shut eye knowledge either of the actual risk or primary facts in the opinion of the court, provide grounds for believing the risk exists.

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Young v Kent County Council

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A 12 year old child fell though the skylight of a school roof. Held they were liable because the defendant knew of previous occasions upon which children had climbed onto the school roof. Preventing the climbing would not have been cost prohibitive. The premises posed a danger to children, not adults and there was reasonable grounds that children would come into the vicinity of the danger. However, damages were reduced by 50% for contributory negligence.

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Keown v Coventry Healthcare NHS Trust

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An 11 year old boy climbed a fire escape and fell off. Held that the risk of falling off was not a risk due to the state of the premises, it was risk of the boy in climbing up, the claimants injures were caused by his activity, and even if it was not, the NHA could not have been expected to guard against such a risk. . Therefore, K had not suffered injury by reason of any danger due to the state of the premises and did not pass the threshold requirement in s.1(1)(a) of the 1984 Act. IF someone said that there was danger due to the state of the premises, the risk could be said to have arisen because the fire escape was unguarded or unfenced, K could have brought himself within s.1(3)(a) of the 1984 Act because the trust knew that the fire escape was unguarded and unfenced. K could also bring himself within s.1(3)(b), since the trust knew that children played in the vicinity of the unguarded or unfenced fire escape. It was doubtful whether K could have brought himself within s.1(3)(c) because it would not be reasonable to expect the trust to offer protection from such a risk.

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Tomlinson v Congleton BC

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No risk arose from the state of the premises as required under s.1(1)(a) Occupiers Liability Act 1984. The risk arose from the claimant’s own action. Even if there was a risk form the state of the premises, the risk was not one against which the council would reasonably be expected to offer the claimant some protection under s.1(3)(C). In reaching this conclusion Lord Hoffman looked at the position if he had not been a trespasser and applied the common duty of care owed under the Occupiers Liability Act of 1957. He was of the opinion that there was no duty to warn or take steps to prevent the claimant from diving as the dangers were perfectly obvious. This was based on the principle of free will and that to hold otherwise would deny the social benefit to the majority of the users of the park from using the park and lakes in a safe and responsible manner.

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Highway duty?

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Highways laws are subjected to maintenance.

1) If you have a public right of way, you cannot sue under 1984 act, but if the public right of way is maintainable at the public expense then a statutory duty is owed under highways code, this includes repairing highway and keeping it reasonably free of ice and snow, this statutory duty is a strict duty subjected to a defence, if the authority can show that they have taken reasonable care, section 41 of highways act.

2) If the public right of way is not mountable at the public expense, the only thing you can do it sue under the persons negligent act. But you would not be able to sue under the 1984 act, if the hole simply develops over a number of time then you cannot sue.

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Landlords

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Typically, a landlord who has leased out premises will not have retained sufficient control to be treated as an occupier for the purposes of the Occupiers’ Liability Acts.

In such situation, a tenant who suffers an injury as a result of a defect in the premises they are renting will have no claim under the Act as there is no occupier other than themselves to sue. However, this gap is addressed in Section 4 Defected premises act 1972.

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Section 4 Defected premises act 1972.

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Section 4(1) - Where premises are let under a tenancy the landlord is under an obligation to those who might reasonably be expected to be affected by defects in the state of the premises, a duty to take reasonable care to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect.

4(2) - The duty is owed if the landlord knows or ought to know about the relevant defect.

S4(3) - relevant defect = an act or omission by the landlord which constitutes or would if he had had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises

S.4(4) - Tenancy expressly or impliedly gives the landlord a right to enter the premises to carry out repair.

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Sykes v Harry

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Held: Under the Defective Premises Act 1972 s.4 a landlord was required to take such care as was reasonable in the circumstances to ensure that the tenant was reasonably safe from injury, and s.4 did not impose on the tenant an obligation to establish that the landlord had had notice, whether actual or constructive, of the relevant defect. Landlord was liable in respect of carbon monoxide poisoning. Landlord was negligent in not having gas fire serviced regularly. The tenant was 80% contributory negligent in failing to have the gas regulated themselves or requesting for it to be regulated.

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Drysdale v Hedges

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The claimant slipped on steps which became wet because they were recently painted. Held: the paint, whilst increasing the risk of slipping, did not require ‘repair’. The Defective Premises Act 1972 (DPA 1972) - S.4 DPA 1972 holds a landlord liable for losses arising out of a failure to repair the property where there is an obligation or a right for the Landlord to do so in the lease. The landlord is not expected to put the property in a better position than it was when let. Therefore, there was no duty under the Act to install the guardrail. Furthermore, the addition of paint to the steps did not cause them to be in disrepair. Landlord did owe a duty of care at common law not to create a risk of harm, Donoghue v Stevenson was authority, but this did not amount to breach of this duty.

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Alexander v Freshwater Properties Ltd

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Someone got their hand stuck in front door, landlord knew of defect. Landlord can owe duty under 1957 act on the common parts.