111 terms

Tort 6: Occupier's liability

tort
STUDY
PLAY

Terms in this set (...)

OLA (Occupier's liability act) 1957, 1984
if situation covered by OLA, use it else use N
Tomlinson v Congleton [2003]
not an OLA situation.
C not injured by defect of the premises, OLA applies to defects of the premises.
Keown v Coventry HA [2006]
child playing on fire escape
not OLA child not injured by defect
Ogwo v Taylor [1998] claim under CL for activity on premises not state (which more likely to be OLA)

D attempted to burn off paint from the fascia boards beneath the eaves of his house with a blow lamp and in so doing set fire to the premises. The fire brigade were called and the C, an acting leading fireman, and a colleague entered the house wearing breathing apparatus and the usual fireman's protective clothing and armed with a hose. The two firemen were able, with the aid of a step- ladder, to squeeze through a small hatch to get into the roof space. The heat within the roof space was intense. The C suffered serious burn injuries to his upper body and face from scalding steam which must have penetrated his protective clothing.
A DOC was owed to a professional fireman. There was no requirement that the risk be exceptional. The defence of volenti had no application. Lord Bridge: " . The duty of professional firemen is to use their best endeavours to extinguish fires and it is obvious that, even making full use of all their skills, training and specialist equipment, they will sometimes be exposed to unavoidable risks of injury, whether the fire is described as " . ordinary" . or " . exceptional." . If they are not to be met by the doctrine of volenti, which would be utterly repugnant to our contemporary notions of justice, I can see no reason whatever why they should be held at a disadvantage as compared to the layman entitled to invoke the principle of the so-called " . rescue" . cases." .
Cunningham v Reading [1991]
both CL and OLA
plaintiff sought damages after being injured by a piece of concrete thrown by a hooligan at a football match. Held: Where a land owner could reasonably expect that visiting fans might use broken off pieces of concrete and hurl them at others, and did not ensure that such pieces were removed, it could be liable in damages as occupier.
OLA
s1.2
duty only owed by occupier.
may have more than 1 occupier
duty owed to visitors (entry with permission)
What counts is control of premises
OLA 1984
includes trespassers and user of private rights of way.
important to distinguish between visitor and tresspasser.
visitor
express or implied permission
implied permission: if there is an allurement (but less willing to construct implied license) because duties are now owed to tresspassers.
Edwards v Railway Executive [1952]
Edwards v Railway Executive [1952]
child on line was tresspasser even though all in power was done.
held it would be wrong to hold D accountable they had done everything.
Lowry v Walker [1911]
The Claimant was injured by a horse when using a short cut across the defendant's field. The land had been habitually used as a short cut by members of the public for many years and the defendant had taken no steps to prevent people coming on to the land. The defendant was aware that the horse was dangerous.
by knowing of danger and not doing anything, an implied permission was inferred.
Ferguson v Welsh [1987]
modern tendency is to apply OLA only to state of premises, not activities.
No subK. In breach Mr Spence engaged the services of the Welsh brothers to carry out the demolition who in turn engaged the services of Mr Ferguson to assist. Mr Ferguson suffered serious injury resulting in permanent paralysis when a wall he was standing on collapsed due to the unsafe practices operated by the Welsh brothers. He brought an action against the Council, Mr Spence and the Welsh brothers. The trial judge held that the Welsh Brothers were liable but that Mr Spence and the Council were not liable. Mr Ferguson appealed against the finding against the Council since the Welsh Brothers (or Mr Spence) had the funds or insurance to meet liability.
appeal was dismissed.
Mr Ferguson was a lawful visitor despite the clause forbidding sub-contracting since Mr Spence would have apparent or ostensible authority to invite him on to the land. However, the danger arose from the unsafe system of work adopted by the Welsh Brothers not the state of the premises. Whilst there was evidence that Mr Spence had sub-contracted demolition work to those executing unsafe practices on previous occasions, there was no evidence that the Council were aware of this.
Holden v White [1982]
C, a milkman, was injured on the D'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 3P who had a right of way across the D's land. It was held that he was not entitled to claim against the D since he was exercising a right of way and was not therefore a lawful visitor of the D.
Greenhalgh v BRB [1969] like holden v white

Public right of way
Rights of way passed over many different types of terrain, and it would place an impossible burden on landowners if they not only had to submit to the passage over them of anyone who might choose to exercise them but also were under a duty to maintain them in a safe condition. Persons using rights of way did so not with the permission of the owner of the solum but in the exercise of a right. There was no room for the view that such persons might have been licensees.

only claim is in ordinary N for a public way not in both OLAs
Jolley v Sutton London BC [2000]
D the owners of land where an old boat had been abandoned for about 2 years. C a 14-year-old boy was seriously injured when he and a friend had propped it up on a car jack while they tried to repair the boat that fell on him. C sued under the Occupiers' Liability Act 1957.
he boat was something that would be attractive to children (including those of C's age). Some injury was foreseeable if children played on or around it, and D had been negligent in not removing it.



Lord Hoffmann said that children's

"ingenuity in finding unexpected ways of doing mischief to themselves and others should never be underestimated".
Phipps v Rochester [1995]

A 5 year old boy was walking across some open ground with his 7 year old sister. He was not accompanied by an adult. He was injured when he fell into a trench. The Corporation were not held liable as an occupier is entitled to assume that prudent parents would not allow their children to go unaccompanied to places where it is unsafe.
expectation that children would be accompanied

The law recognises a sharp difference between children and adults. But there might well I think, be an equally marked distinction between 'big children' and 'little children'. ...The occupier is not entitled to assume that all children will, unless they are allured, behave like adults; but he is entitled to assume that normally little children will be accompanied by a responsible person. ...The responsibility for the safety of little children must rest primarily upon the parents; it is their duty to see that such children are not allowed to wander about by themselves, or at least to satisfy themselves that the places to which they do allow their children to go unaccompanied are safe. It would not be socially desirable if parents were, as a matter of course, able to shift the burden of looking after their children from their own shoulders to those persons who happen to have accessible pieces of land."
Simkiss v Rhondda BC [1983]
Two little girls were sliding down the side of a mountain on a blanket. They flew over a thirty foot bluff and were injured and their parents said that the local authority should have fenced the area off. However, the courts said prudent parents would've told their kids not to play on dangerous land.
if parents knew of risk and allowed the children to run risk.
not liable.
was not reasonable to expect occupier to take more care than the parents.
Duty owed to lawful visitor is 'common duty of care' s.2(2)

Fault based liability

Children - s2(3)(a)
Jolley v Sutton London BC [2000]
Phipps v Rochester [1995]
Simkiss v Rhondda BC [1983]
Brb v herrington
Edwards
OLA 57 liability
fault based liability, must show that O was at fault, not strict liability.must show O was unreasonable, did he show reasonable care, was standard breached? need to look at all circumstances of case.
Trade visitors - s.2(3)(b) cases
Trade visitors - s.2(3)(b)

Roles v Nathan [1963]
Salmon v Seafarer Restaurant [1983]
Roles v Nathan [1963] chimney sweeper sweeping while fireplace was still lit.
not liable for specialist
Salmon v Seafarer Restaurant [1983] fireman was injured even though he had taken care
liable
OLA 1957
independent contractors
AMF International v Magnet [1968]
Woodward v Mayor of Hastings [1945]
Haseldine v Daw [1941]
Ferguson v Welsh [1987]
Gwilliam v West Hertfordshire [2002]
AMF International v Magnet [1968]
...
Woodward v Mayor of Hastings [1945]
O liable for frozen water left on step by cleaner

The court found that this case was different from Haseldine v Daw because defrosting the stairs did not entail any technical knowledge, it was something that the school could have done themselves, and therefore ensuring that the cleaners had done their jobs properly was not unreasonable to expect of the school authority.
Haseldine v Daw [1941] cf ferguson, woodward
Magnet
claimant in this case was injured by a faulty lift, which was just surveyed by a group of technicians a week before the accident. The claimant purported to sue the owner of the building
court held that the technical and specialist nature of lift mantainance meant that the qualifty of the survey was not something that the occupiers could reasonably be expected to verify. Hence the occupiers were not liable.

Rule to exempt liability on the basis of contracting:

The injury must have been caused by the work carried out by the contractor which they were contracted to do;
It was reasonable for the occupier to employ independant contractor;
The occupier must be reasonably satisfied that the contractor was competent.
Ferguson v Welsh [1987] cf Haseldine
in pursuance of a development plan to build sheltered accommodation, engaged the services of Mr Spence to demolish a building. It was a term of the contract that the work was not to be sub-contracted out. In breach of this term, Mr Spence engaged the services of the Welsh brothers to carry out the demolition who in turn engaged the services of Mr Ferguson to assist. Mr Ferguson suffered serious injury resulting in permanent paralysis when a wall he was standing on collapsed due to the unsafe practices operated by the Welsh brothers. He brought an action against the Council, Mr Spence and the Welsh brothers. The trial judge held that the Welsh Brothers were liable but that Mr Spence and the Council were not liable. Mr Ferguson appealed against the finding against the Council since the Welsh Brothers (or Mr Spence) had the funds or insurance to meet liability.
appeal was dismissed.
Mr Ferguson was a lawful visitor despite the clause forbidding sub-contracting since Mr Spence would have apparent or ostensible authority to invite him on to the land. However, the danger arose from the unsafe system of work adopted by the Welsh Brothers not the state of the premises. Whilst there was evidence that Mr Spence had sub-contracted demolition work to those executing unsafe practices on previous occasions, there was no evidence that the Council were aware of this.
Gwilliam v West Hertfordshire [2002]

laimant, a 63 year old woman, was injured at a summer fair hosted by West Hertfordshire Hopsital. She was injured whilst using a 'splat wall' bounce onto velcro, N set up of the equipment. provided by a business called 'Club Entertainments' kor of hospital. insurance had expired four days before. settle her claim for £5,000. action against the hospital based on their failure to ensure that the entertainment arranged was covered by public liability insurance. She claimed the difference.
Hospital owed a duty of care Under ola1957 this duty did extend to checking whether the independent contractor had insurance,relevant to whether they were competent. No bod ,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.
if breach of duty shown then...
factual and legal causation
damage under OLA 57:
includes damage to property.
Ashdown v Williams [1957]
Before UCTA the Court of Appeal held that an occupier could exclude liability by displaying a notice disclaiming as such, even if the claimant had not read the notice.

Section 2(1) OLA 1957 provides that an occupier may exclude his duty 'by agreement or otherwise'. Ashdown v Samuel Williams
exclusion of liability v warning
cannot exclude liab under 57 act for a public right
however for a visitor, need to be certain that warning is sufficient.
Business occupiers

s.2 UCTA 1977
s. 1 OLA 1984
cannot exclude liab for death or injury, other liab exclusion must be reasonable.
non-visitors under common law (dealt with 1984 OLA)
CL no duty
Addie v Dumbreck [1929] : duty not to entrap tresspassor

BRB v Herrington [1972] :allowed young children to succeed
Duty under 1984 Act
An occupier of premises 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 that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger... and
(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.

NO AUTOMATIC DUTY, 3 stage test
actual or constructive knowledge
Swain v Puri [1996]
test under active is not completely objective. "reasonable grounds existed=> objected).

@has reasonable grounds to believe=> partially subjective

occupier has some knowledge that they don't think gives rise to a danger, but reasonable man does believe.
Negligence

The expression "reasonable grounds to believe" meant actual knowledge or "shut-eye" knowledge of the actual risk of injury to a child trespasser, or of primary facts that the court considers provides reasonable grounds for believing that the risk exists.
Occupiers' Liability Act 1984
OLA 1984
Breach of duty
Occupier must take such care as is reasonable in all the circumstances - s.1(4)

Fault based , not strict liability
warning notices are not sufficient

Discouragement - s.1(5) : may not be a breach if O discourages
damage : only death or personal injury in act
Exclusion of liability - statute silent unlike previous OLA where it was possible.
Donoghue v Stephenson [1932] liab of manufacturers to consumers
duty is to take reasonable care
C much prove actual breach, might be hard since do not know
causation
reasonable damage

NOTE: Consumer Protection Act 1987 introduces Strict liability
liab of employers: Common law - negligence based liability
Wilson
Wilson
House of Lords held unanimously that an employer has a non delegable duty to create a safe system of work. Even if an employer gives that duty to another person, they still remain responsible for workplace safety.
three relationships in which the CL has long recognised a DOC.
i. the duty owed by occupiers of premises to persons in or on the premises: here the CL duty has been replaced by negligence-type statutory duties in the Occupiers' Liability Acts 1957 and 1984

ii. the duty owed by manufacturers (and others involved in the production) of products to the consumers of the products: here the CL duty has not been replaced but has in practice been supplanted for most purposes by strict liability imposed by statute in the Consumer Protection Act 1987 (see Chapter 8)

iii. the duty owed by employers to employees: here the CL DOC (which has a distinctive character) has not been replaced or supplanted but exists alongside a range of statutory duties, both general and specific.
Occupiers'
Liability Act 1957 main goal
prescribed the occupiers' duty to their lawful visitors. At that time occupiers owed only a very limited duty to people who were not lawful visitors (usually but slightly inaccurately called trespassers).
ola 57, 1984
Lawful visitors are owed the duty set out in the 1957 Act; non-lawful visitors are owed the duty set out in the 1984 Act. It is for the C to prove that he is a lawful visitor and therefore entitled to the more favourable duties in the earlier Act.

s 1(1) of both Acts provides that the rules in the Act have effect 'in place of the rules of the CL'. In other words, if the facts fall within the scope of the Act there is no room for an alternative CL action in negligence. If however the facts fall outside the scope of the Act, then the C may be able to rely on a CL action, e.g. in order to sue tradesmen working in the premises, but not themselves occupiers

Acts are concerned only with liability to people physically in the premises. The occupier may be liable to people outside the premises, on the street or in neighbouring property, in negligence or in other Ts, such as nuisance and the rule in Rylands v Fletcher
Ferguson v Welsh [1987]
OLA only for injuries resulting from the state of the premises NOT injuries resulting from activities on the premises?
Ogwo v Taylor [1998]
occupier, while carelessly burning off paintwork on his roof, set fire to the house. The C, a fireman, was injured. The claim was brought under the CL, the 1957 Act was not considered.

A duty of care was owed to a professional fireman. There was no requirement that the risk be exceptional. The defence of volenti had no application.
Cunningham v Reading Football Club [1992]

plaintiffs were police officers who had been involved in policing a football match. They had been injured as a result of 'terrifying violence' inflicted upon them by supporters. They had been struck by pieces of concrete loosened from the terraces and thrown at them. The Ds knew that trouble might occur and were aware of a previous concrete-throwing episode but had taken no steps to make it more difficult for supporters to loosen the concrete. The plaintiffs succeeded in their claim.
both CL and statute were referred to on the unusual facts of Cunningham v Reading Football Club [1992] PIQR 141, where the state of the premises enabled other visitors to act in a way that injured spectators at a football match.

held that 'a reasonably prudent occupier would have realised that the concrete in the ground was dangerous because it might supply a source of missiles and would have taken steps to remove or minimise the risk.'
What can be occupied? (s.1(3)(a))
Most cases involve the occupation of premises, such as houses, offices, factories, schools and so forth, but the Act also applies to any fixed or movable structure.
Who is an occupier? (s.1(2))
CL (and under the statute) occupation is based on control and not necessarily on any title to or property interest in the land: the question is whether the D had sufficient control of the premises to be the person responsible for the safety of visitors (Wheat v E. Lacon
Who is a lawful visitor? (s.1(2))

Act has abolished the distinction between different categories of lawful visitors (see s.2(1)). The distinction between lawful visitors and non-lawful visitors remains and can be problematic
A person invited by the occupier on to the premises is a lawful visitor

implied permissions


A visitor may have permission to enter only until a certain time or only to enter certain parts of the premises, but the occupier must make clear the limits of the permission. Permission may normally be revoked but the visitor must be given a reasonable time to leave.
implied permissions:
A person may have an implied permission to be on the land. Normally people may be entitled to walk up the front path to ring the door bell and make enquiries of the occupier. However before 1984 the courts were very willing to use fictional devices in order to treat Cs (especially C) as lawful visitors. if there were alluring things , the courts might treat these as in a sense inviting the C on to the land. Again, if an occupier knew that people were in the habit of walking across his land, perhaps as a short cut, and did nothing effective to deter them, he might be treated as having given them a licence to use the land. OLA 1984 trespassers have had enhanced rights


A person who has a CL or statutory right of entry is a lawful visitor (e.g. the police executing warrants of arrest or search). But a person who is exercising a public or private right of way is not a visitor to the occupier (McGeown v Northern Ireland Housing Executive [1995]
invitation to enter the premises may be issued by someone other than the occupier, such as the son or daughter or an employee of the occupier
no problem if they have the occupier's permission to issue the invitation, but what if the occupier has forbidden them to do so? A sensible solution would be to ask whether the visitor would expect the person issuing the invitation normally to have authority to do so (see Ferguson v Welsh [1987] :Contracter, subcontracts illegally, but Ferguson is a lawful visitor since Kor had apparent authority)
Stone v Taffe
Ferguson v Welsh [1987]

Sedgefield District Council, in pursuance of a development plan to build sheltered accommodation, engaged the services of Mr Spence to demolish a building. It was a term of the contract that the work was not to be sub-contracted out. In breach of this term, Mr Spence engaged the services of the Welsh brothers to carry out the demolition who in turn engaged the services of Mr Ferguson to assist. Mr Ferguson suffered serious injury resulting in permanent paralysis when a wall he was standing on collapsed due to the unsafe practices operated by the Welsh brothers. He brought an action against the Council, Mr Spence and the Welsh brothers. The trial judge held that the Welsh Brothers were liable but that Mr Spence and the Council were not liable. Mr Ferguson appealed against the finding against the Council since the Welsh Brothers (or Mr Spence) had the funds or insurance to meet liability.
appeal was dismissed. Mr Ferguson was a lawful visitor despite the clause forbidding sub-contracting since Mr Spence would have apparent or ostensible authority to invite him on to the land. However, the danger arose from the unsafe system of work adopted by the Welsh Brothers not the state of the premises. Whilst there was evidence that Mr Spence had sub-contracted demolition work to those executing unsafe practices on previous occasions, there was no evidence that the Council were aware of this.
Stone v Taffe
Stone fell down stairs after closing time, however manager had allowed him to stay. No explicit request to leave. liable

question to ask is was it reasonable BOP that Stone could expect that he was still a visitor.
McGeown v Northern Ireland Housing Executive [1995]

A person using a public right of way is not owed a DOC by the owner of the soil over which the right of way passes to maintain the right of way in a safe condition.
. Rights of way passed over many different types of terrain, and it would place an impossible burden on landowners if they not only had to submit to the passage over them of anyone who might choose to exercise them but also were under a duty to maintain them in a safe condition.

Persons using rights of way did so not with the permission of the owner of the solum but in the exercise of a right. There was no room for the view that such persons might have been licensees or invitees
Martha has been invited to dinner by Lord Nasty. As she drives up the avenue to his home, she is struck by an arrow carelessly fired by Lord Nasty, which misses the target. Has she a claim under the 1957 Act?
discussion of whether the 1957 Act applies to activities on the land
Norma is visiting Lord Nasty's stately home on a day it was open to the public. Part of the floor of the library had been taken up so that Slapdash Builders could carry out structural work. Norma did not notice and fell. Who was the occupier?
Wheat v E. Lacon
Olive calls uninvited on Lord Nasty seeking a donation for the local church restoration fund. She is injured when part of the railing on the entrance stairway gives way. Was she a lawful visitor at the time?
It might depend on whether she was still on the stairs leading to the entrance doorway or had walked into the entrance hall, and also on whether there was any notice saying 'No charitable collectors'
Helga is an au pair working for the Brown family. She is not allowed to have visitors. One afternoon, when the Browns are out, she asks another au pair, Luisa, to watch television in her bedroom. When Luisa is leaving, she is injured when part of the stair gives way. Was she a lawful visitor at the time?
Stone v Taffe
nature of the duty

flexible duty depending on the circumstances including the purposes for which the visitor is on the premises.
duty owed by the occupier to a lawful visitor is the 'common DOC' defined in s.2(2)

(2)The common DOC is a duty 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.
examples are given in 2(3) and 4

4 examples
i. Children (s.2(3)(a))
ii. Trade visitors (s.2(3)(b))
iii. Warnings (s.2(4)(a))
iv. Independent contractors (s.2(4)(b))
The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases—

(a)an occupier must be prepared for children to be less careful than adults; and

(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.

(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; and

(b)where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.
i. Children (s.2(3)(a))
occupier does not however have to guarantee that the house will be safe, but only has to take reasonable care. If the child's parents are present, they must share some responsibility, and, even if they are not present, it may be relevant to the occupier's duty that they thought it prudent to allow their child to be where he was. See Phipps v Rochester Corporation [1995] 1 QB 450 (a pre-Act case), Simkiss v Rhondda Borough Council (1983) 81 Jolley v Sutton London BC [2000]
Phipps v Rochester Corporation [1995]

A 5 year old boy was walking across some open ground with his 7 year old sister. He was not accompanied by an adult. He was injured when he fell into a trench. The Corporation were not held liable as an occupier is entitled to assume that prudent parents would not allow their C to go unaccompanied to places where it is unsaf
The law recognises a sharp difference between C and adults. But there might well I think, be an equally marked distinction between 'big C' and 'little C'. ...The occupier is not entitled to assume that all C will, unless they are allured, behave like adults; but he is entitled to assume that normally little C will be accompanied by a responsible person. ...The responsibility for the safety of little C must rest primarily upon the parents; it is their duty to see that such C are not allowed to wander about by themselves, or at least to satisfy themselves that the places to which they do allow their C to go unaccompanied are safe. It would not be socially desirable if parents were, as a matter of course, able to shift the burden of looking after their C from their own shoulders to those persons who happen to have accessible pieces of land."

Devlin created the Prudent Parent Test, which is well demonstrated in: Simkiss v Rhondda BC
Simkiss v Rhondda BC
prudent parent TEST
Two little girls were sliding down the side of a mountain on a blanket. They flew over a thirty foot bluff and were injured and their parents said that the local authority should have fenced the area off. However, the courts said prudent parents would've told their kids not to play on dangerous land
Jolley v Sutton
Two teenage boys on the afformentioned boats. Thought they were doing it up. It fell and one of them was paralysed. Lord Hoffman, " . ingenutity of C of finding unexpected ways of doing injury to themselves, never underestimate this
ii. Trade visitors (s.2(3)(b))
A visitor in the exercise of his calling will appreciate and guard against any special risks ordinarily incident to it. The situation that this sub-s envisages is that an occupier who calls in, for example, a representative of the gas supply company to investigate a smell of gas can assume that he will know how to protect himself against the danger.Roles v Nathan [1963] 1
Roles v Nathan [1963]

Two brothers, Donald and Joseph Roles were engaged by Mr Nathan as chimney sweeps to clean the flues in in a central heating system at Manchester Assembly Rooms. The flues had become dangerous due to carbon monoxide emissions. A heating engineer had warned them of the danger, however, the brothers told him they knew of the dangers and had been flue inspectors for many years. The engineer monitored the situation throughout the day and at one point ordered everybody out of the building due to the levels of carbon monoxide. The brothers ignored this advice and continued with their work. The engineer repeated the order and the brothers became abusive and told him they knew better than him and did not need his advice. The engineer forcibly removed them from the building. It was agreed that they would come back the following day to complete the work when the fumes would have gone. They were also told they should not do the work whilst the fires were lighted. However, the next day the brothers were found dead in the basement having returned the previous evening to complete the work when the fires were lit. Their widows brought an action under the Occupiers Liability Act 1957.
D was not liable. The dangers were special risks ordinarily incident to their calling. The warnings issued were clear and the brothers would have been safe had they heeded the warnings.
Ogwo v Taylor
does not mean that the occupier is immune from liability: presumably the occupier must accurately explain the nature of the problem. Further, in Ogwo v Taylor (see above) the occupier was liable for Nly creating the danger that required the presence of the specialist. This case was not decided under the 1957 Act, but the principle would seem applicable thereto.
iii. Warnings (s.2(4)(a))
Roles v Nathan [1963]
occupier who gives a warning is attempting to perform or to discharge his DOC: he is not attempting to exclude his liability. If something slippery has been spilt on the floor of a shop, the occupier can (a) close the shop, (b) clean up the spillage or (c) give a warning so that the visitor can avoid the spot or step gingerly. The question is whether the warning is enough to enable the visitor to be reasonably safe.
iv. Independent contractors (s.2(4)(b))
AMF International v Magnet Bowling [1968] 1
Ferguson v Welsh VIMP
Gwilliam v West Hertfordshire Hospitals NHS Trust
deals with the situation where the occupier has called in independent contractors, such as electricians to rewire a house or builders to erect an extension, and the injury is due to the faulty execution of 'any work of construction, maintenance or repair' (words that have been given a flexible interpretation.

Depends on occupier
A substantial occupier, such as a university with a maintenance department that would be able to supervise outside contractors, but a domestic householder would have to T a competent electrician to do a good job. An occupier might discharge the duty in such a situation by selecting the contractor carefully (e.g. checking that they belong to a professional organisation and not just giving the job to someone who called at the door or placed a small ad in the local newspaper).
AMF International v Magnet Bowling [1968]
the contractor was to provide and install valuable timber and other specialised bowling alley equipment. On July 21, 1964 an exceptionally heavy rainstorm flooded the building and the timber for the building work was seriously damaged. The court held that the contractor and the building owner were both occupiers of the building.
Gwilliam v West Hertfordshire Hospitals NHS Trust

C, a 63 year old woman, was injured at a summer fair hosted by West Hertfordshire Hopsital. She was injured whilst using a 'splat wall' whereby participants would bounce off a trampette against a wall and become attached to the wall by means of Velcro material. The injury occurred as a result of N set up of the equipment. The equipment was provided by a business called 'Club Entertainments' who were an independent contractor engaged by the Hospital. Club Entertainment's public liability insurance had expired four days before the incidence and thus they had no cover for the injury. They agreed to settle her claim for £5,000. Mrs Gwilliam brought an action against the hospital based on their failure to ensure that the entertainment arranged was covered by public liability insurance. She claimed the difference between the £5,000 and what she would have received had they been covered by insurance.
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.
Ferguson v Welsh

C was visitor to one occupier, trespasser to another; higher burden on professional occupiers before they can discharge to IC
Lord Keith of Kinkel said that s.2(4)(b) of the Occupiers' Liability Act 1957 was designed to afford some protection from liability to an occupier who had engaged an independent contractor who had executed work in a faulty manner, and on a broad and purposive interpretation of that provision, the activity of demolition might properly be considered to be embraced by the word 'construction'. Moreover, the protection afforded covered liability from dangers created by a N act or omission by the contractor in the course of his work on the occupier's property. In the circumstances of the present case, however, even on the assumption that the C was an invitee of the council for the purpose of the demolition, the C had no claim against the council either under the 1957 Act or at CL.
Defences
i. Contributory N on the part of the visitor

ii. Volenti non fit iniuria. This is expressly referred to in s.2(5): for general principles of this defence

iii. Exclusion of liability.† At CL (Ashdown v Samuel Williams [1957] 1 QB 409) and by s.2(1) of the 1957 Act the occupier was allowed to exclude his liability by contract or by notice 'in so far as he is free to do so'. The occupier may therefore display a notice, saying 'Enter at your own risk'. It is very important to distinguish the intention of such a notice from a notice warning of a danger (s.2(4)(a)) exclude his L by K or by notice 'in so far as he is free to do so'. It is very important to distinguish intention of such a notice (excludes L) from a notice warning of a danger (s.2(4)(a)) common error to confuse two. A warning notice is an attempt to perform duty: an exclusion clause is designed to protect occupier against claims for BOD. But UCTA (prevents an occupier from excluding or restricting L for death or personal injury if caused by their N)
occupier is however restricted in his ability to exclude his liability in a number of ways:
On ordinary principles the notice must be clear (both in the sense of legibility and in the sense of its intended scope) and reasonably drawn to the visitor's attention before entry. See also White v Blackmore (1972) ashdown v williams

The notice cannot exclude liability to those required and permitted by law to enter and who are therefore not free to stay off the occupier's land; they would be obliged to run the risk of injury for which there will be no compensation.

It has been suggested, though never decided, that the occupier's duty cannot be reduced below the level of the duty owed to a trespasser. It would be surprising if the occupier could owe a higher duty to a person who had been forbidden to enter the property than to a person who had permission subject to an exclusion of liability clause.

The main limitation on the right to exclude liability is now the Unfair Contract Terms Act 1977†. This Act expressly applies to liability under the 1957 Act, but only applies to business premises. (Notice that this means that the premises are occupied for the purposes of a business rather than that a particular visitor is there for business purposes.)

NOTE: the UCTA restricts the ability to exclude liability by non-contractual notices as well as by contract.
a. Joe sees an advertisement in his local paper, saying 'All electrical work undertaken. Cheap rates. For details ring Kev Joe engages Kev to rewire his flat. Six weeks later Leo, a visitor, is electrocuted.
Is this a proper way for a householder to get electrical work done? OLA 1957 s.2(4) (b).
Compare the effect of the following notices at the entrance to Mark's land: i. 'Persons entering these premises do so at their own risk' ii. 'Private: no admittance to unauthorised personnel' iii. 'Dangerous footbridge'.
what these notices are aimed to do: (i) makes clear that the visitor may come in but will not be able to sue occupier for injuries: is it an effective exclusion clause? (ii) is an attempt to exclude visitors, not to exclude liability. If effective, an entrant will not be a lawful visitor. (iii) is an attempt to warn (s.2(4)(a)) and thereby fulfill the common duty of care to a visitor.
British Railways Board v Herrington [1972]
OLA 1984

In British Railways Board v Herrington (1972) the board was held liable for injuries to a six year old child who had been playing on the railway line. The House of Lords held that the occupier of the railway premises owed a duty of common humanity to the child. Until this case no duty of care was owed to trespassers. The Occupiers Liability Act 1984 was then extended after this to include a duty of care to trespassers).
imposed on occupiers a 'duty to act with common humanity' towards trespassers.

case has now been replaced by the Occupiers' Liability Act 1984, but may still be relevant in cases that fall outside the scope of the Act, e.g. where the visitor has suffered property damage (see s.1(8) of the 1984 Act
OLA 1984 nature of the duty ,different. from previous act
It is not the case that the occupier owes a duty to ensure
that trespassers are reasonably safe when trespassing on the premises. Instead the
structure of the duty is as follows:
i. there has to be a danger on the premises (s.1(1))
ii. a duty arises if three separate conditions are satisfied (s.1(3))†
iii. the content of the duty is set out at s.1(4)).
OLA 1984 duty s1
1 Duty of occupier to persons other than his visitors.(1)The rules enacted by this section shall have effect, in place of the rules of the common law, to determine —
(a)whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and
(b)if so, what that duty is.
(2)For the purposes of this section, the persons who are to be treated respectively as an occupier of any premises (which, for those purposes, include any fixed or movable structure) and as his visitors are —
(a)any person who owes in relation to the premises the duty referred to in section 2 of the M1 Occupiers' Liability Act 1957 (the common duty of care), and
(b)those who are his visitors for the purposes of that duty.
(3)An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above 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 that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and
(c)the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
(4)Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.
OLA 1984 defences to duty
like the 1957 Act, the occupier's duty may be discharged by a suitable warning (s.1(5)) and that it is a defence that the visitor willingly accepted the risk (s.1(6)).
OLA 1984 cases
Ratcliffe v McConnell [1999] 1 WLR 670
Donoghue v Folkestone Properties Ltd [2002] EWCA Civ 231: [2003] 2 WLR 1138
Tomlinson v Congleton Borough Council [2003]
Ratcliffe v McConnell [1999]

C, who was drunk, jumped into a swimming pool marked with warning signs, suffering serious injuries after hitting the bottom.
CA held that, because of the circumstances (jumping into an obviously shallow pool with warning signs during the winter), the C should have known of the risk and, by acting, had accepted the risk.
Donoghue v Folkestone Properties Ltd [2002]

Mr Donoghue, the C, spent boxing day evening in a public house called Scruffy Murphy's. It was his intention, with some of his friends, to go for a midnight swim in the sea. Unfortunately in his haste to get into the water he dived from a slipway in Folkestone harbour owned by the D and struck his head on an underwater obstruction, breaking his neck. At his trial evidence was adduced to the affect that the slipway had often been used by others during the summer months to dive from.
The test of whether a duty of care exists under s.1(3) Occupiers Liability Act 1984 must be determined having regard to the circumstances prevailing at the time of the alleged breach resulted in injury to the C. At the time Mr Donoghue sustained his injury, Folkestone Properties had no reason to believe that he or anyone else would be swimming from the slipway. Consequently, the criteria set out in s.1(3)(b) was not satisfied and no duty of care arose.
Tomlinson v Congleton Borough Council [2003]
Tomlinson had originally entered the premises (a park) lawfully, but had then thrown himself forward into a pool where swimming was forbidden. He was treated as a trespasser, but some of the judges were uneasy about this. Why?

There is an extensive analysis of the requirements in ss.1(1), 1(3) and 1(4) of the 1984 Act.

There was an extensive discussion of the policy arguments that led the HL to reject Tomlinson's claim, including the likely social consequences of imposing a duty on a local council. You should compare this case with others that have also raised the question of how far the law should impose on others (particularly public bodies) an obligation to protect people against their own folly.
Tomlinson v Congleton Borough Council [2003]
reasons why Tomlinson counld not be a visitor, but had to be a tresspasser
sign "Dangerous Water. No Swimming".
Council went further and said that once he entered the lake to swim, he was no longer a " . visitor" . at all. He became a trespasser, to whom no duty under the 1957 Act is owed. The Council cited a famous bon mot of Scrutton LJ in The Calgarth [1927] P. 93, 110: " . When you invite a person into your house to use the staircase...

BUT: Although that took him outside the 1957 Act, it did not necessarily mean that the Council owed him no duty.

At CL the only duty to trespassers was not to cause them deliberate or reckless injury, but after an inconclusive attempt by the HL to modify this rule in British Railways Board v Herrington

duty to tresspassers given effect by the Occupiers' Liability Act 1984.
Tomlinson approahc under OLA 1984
:

Tomlinson says that the conditions set out in sub-section (3) were satisfied. The Council was therefore under a duty under subsection (4) to take reasonable care to see that he did not suffer injury by reason of the danger from diving. Subsection (5) shows that although in appropriate circumstances it may be sufficient to warn or discourage, the notices in the present case had been patently ineffectual and therefore it was necessary to take more drastic measures to prevent people like himself from going into the water.
Tomlinson's complaint is that he should have been prevented or discouraged from going into the water, that is to say, from turning himself into a trespasser. Logically, it can be said, that duty must have been owed to him (if at all) while he was still a lawful visitor. Once he had become a trespasser, it could not have meaningful effect. In the Court of Appeal, Longmore LJ was puzzled by this paradox:

"At what point does he become a trespasser? When he starts to paddle, intending thereafter to swim? There was no evidence that Mr Tomlinson in fact swam at all. He dived from a position in which swimming was difficult, if not impossible. I would be troubled if the respondents' duty of care differed depending on the precise moment when a swim could be said to have begun."

What was at issue in the case was whether the Council should have taken steps which would have prevented Mr Tomlinson from entering the lake, that is, whether a duty of care was owed to him before act

there is no dispute that the act in respect of which Mr Tomlinson says that he was owed a duty, namely, diving into the water, was to his knowledge prohibited by the terms upon which he had been admitted to the Park.
Tomlinson differences in duty between OLAs
duty under the 1984 Act was intended to be a lesser duty, as to both incidence and scope, than the duty to a lawful visitor under the 1957 Act. That was because Parliament recognised that it would often be unduly burdensome to require landowners to take steps to protect the safety of people who came upon their land without invitation or permission. They should not ordinarily be able to force duties upon unwilling hosts.
Tomlinson responsibility of tresspasor v duty
VIMP premises v person
analysis of the duties under the 1957 and 1984 Acts. Mr Tomlinson was a person of full capacity who voluntarily and without any pressure or inducement engaged in an activity which had inherent risk. The risk was that he might not execute his dive properly and so sustain injury. Likewise, a person who goes mountaineering incurs the risk that he might stumble or misjudge where to put his weight. In neither case 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. In the present case, Mr Tomlinson knew the lake well and even if he had not, the judge's finding was that it contained no dangers which one would not have expected. So the only risk arose out of what he chose to do and not out of the state of the premises.

It follows that in my opinion, there was no risk to Mr Tomlinson due to the state of the premises or anything done or omitted upon the premises. That means that there was no risk of a kind which gave rise to a duty under the 1957 or 1984 Acts.
Tomlinson:
1(3) has three conditions (a)O awareness of danger or have reasonable grounds to believe that it exists.
in this case evaluated on similar acts (only diving acts which caused injuries, not the numerous swimming acts)
Tomlinson:
conditions for the existence of a duty
(ii) Knowledge or foresight of the presence of the trespasser
Once it is found that the risk of a swimmer injuring himself by diving was something of which the Council knew or which they had reasonable grounds to believe to exist, paragraph (b) presents no difficulty. The Council plainly knew that swimmers came to the lake and Mr Tomlinson fell within that class.
Tomlinson:
conditions for the existence of a duty
(iii) Reasonable to expect protection
balance of risk, gravity of injury, cost and social value.
My Lords, the majority of the Court of Appeal appear to have proceeded on the basis that if there was a foreseeable risk of serious injury, the Council was under a duty to do what was necessary to prevent it. But this in my opinion is an oversimplification. Even in the case of the duty owed to a lawful visitor under section 2(2) of the 1957 Act and even if the risk had been attributable to the state of the premises rather than the acts of Mr Tomlinson, the question of what amounts to "such care as in all the circumstances of the case is reasonable" depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other.

For example, in Overseas Tankship (UK) Ltd v Miller Steamship Pty Ltd (The Wagon Mound (No. 2)) [1967] 1 AC 617 , there was no social value or cost saving in the D's activity. Lord Reid said (at p 643): " . In the present case there was no justification whatever for discharging the oil into Sydney Harbour. Not only was it an offence to do so, but it involved considerable loss financially. If the ship's engineer had thought about the matter, there could have been no question of balancing the advantages and disadvantages. From every point of view it was both his duty and his interest to stop the discharge immediately." .

So the Ds were held liable for damage which was only a very remote possibility. Similarly in Jolley v Sutton London B.C. [2000] 1 WLR 1082 there was no social value or cost saving to the Council in creating a risk by leaving a derelict boat lying about. It was something which they ought to have removed whether it created a risk of injury or not. So they were held liable for an injury which, though foreseeable, was not particularly likely. On the other hand, in The Wagon Mound (No. 2) Lord Reid (at p. 642) drew a contrast with Bolton v Stone [1951] AC 850 in which the HL held that it was not N for a cricket club to do nothing about the risk of someone being injured by a cricket ball hit out of the ground.
57 and 1984 Acts contrasted
In the case of the 1984 Act, there is the additional consideration that unless in all the circumstances it is reasonable to expect the occupier to do something, that is to say, to " . offer the other some protection" . , there is no duty at all. One may ask what difference there is between the case in which the C is a lawful visitor and there is in principle a duty under the 1957 Act but on the particular facts no duty to do anything, and the case in which he is a trespasser and there is on the particular facts no duty under the 1984 Act. Of course in such a case the result is the same. But Parliament has made it clear that in the case of a lawful visitor, one starts from the assumption that there is a duty whereas in the case of a trespasser one starts from the assumption that there is none.
if Mr Tomlinson had been a lawful visitor owed a duty under section 2(2) of the 1957 Act.
1. Assume, therefore, that there had been no prohibition on swimming. What was the risk of serious injury?
much lower % for diving than swimming

2. cost savings MUST be compared with other costs for other activities of the council

social value of the activities which would have to be prohibited in order to reduce or eliminate the risk from swimming.

4 is the question of whether the Council should be entitled to allow people of full capacity to decide for themselves whether to take the risk. Free Will

majority of people who went to the beaches to sunbathe, paddle and play with their children were enjoying themselves in a way which gave them pleasure and caused no risk to themselves or anyone else. This must be something to be taken into account in deciding whether it was reasonable to expect the Council to destroy the beaches.
Free Will, Tomlinson POLICY
Lord Phillips of Worth Matravers MR in Donoghue v Folkestone Properties Ltd [2003] 2 WLR 1138, 1153 and which I said was central to this appeal. Mr Tomlinson was freely and voluntarily undertaking an activity which inherently involved some risk. By contrast, Miss Bessie Stone, to whom the HL held that no duty was owed, was innocently standing on the pavement outside her garden gate at 10 Beckenham Road, Cheetham when she was struck by a ball hit for 6 out of the Cheetham Cricket Club ground.
Tomlinson conclusions relative to OLA 57
It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them.

duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, or in the case of employees, or some lack of capacity, such as the inability of children to recognise danger (British Railways Board v Herrington [1972] AC 877) or the despair of prisoners which may lead them to inflict injury on themselves (Reeves v Commissioner of Police [2000]
OLA 1984

Tomlinson what needs to be shown
crucial question is whether the respondent has established that the risk was one to which section 1(3)(c) applies

c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
duty owed in both act is wrt dangers, issue in Tomlinson with dangers
VIMP person v premises
and provides the subject matter of any duty which may be owed. It is this phrase which provides the basic definition of 'danger' as used elsewhere in the Acts. There are two alternatives. The first is that it must be due to the state of the premises. The state of the premises is the physical features of the premises as they exist at the relevant time. It can include foot paths covered in ice and open mine shafts. It will not normally include parts of the landscape, say, steep slopes or difficult terrain in mountainous areas or cliffs close to cliff paths. There will certainly be dangers requiring care and experience from the visitor but it normally would be a misuse of language to describe such features as " . the state of the premises" . . The same could be said about trees and, at any rate, natural lakes and rivers.

The second alternative is dangers due to things done or omitted to be done on the premises. Thus if shooting is taking place on the premises, a danger to visitors may arise from that fact. If speed boats are allowed to go into an area where swimmers are, the safety of the swimmers may be endangered. In the present case, the mere was used for a number of activities - angling, board-sailing, sub-aqua, canoeing and sailing model yachts -

but none of these was suggested to have given rise to any danger to the C or others. Therefore the C has to found his case upon a danger due to the " . state of the premises" . . His difficulty is that the judge has found that there was none
Tomlinson 1984 "danger"
basic requirement of a " . danger due to the state of the premises" . is there. Section 1(2) contains a cross-reference to s.2(2) of the earlier Act. Section 1(3) depends upon the existence, and knowledge, of a danger coming within s.1(1). The risk of personal injury arising from that danger must further be one against which, in all the circumstances, it is reasonable to expect the occupier " . to offer the [trespasser] some protection" . . The equivalent phrase " . reasonable in all the circumstances" . is used in subsections (4) and (5). Subsection (5) specifically permits the use of warnings and discouragements against incurring the relevant risk.
Tomlinson, why is the notices and warning signs argument not effective
It will not have escaped your Lordships that the putting up of the notices prohibiting swimming is the peg which the C uses to acquire the status of trespasser and the benefit of the suggested more favourable duty of care under the 1984 Act. But this is a case where, as held by the judge, all the relevant characteristics of this mere were already obvious to the C. In these circumstances, no purpose was in fact served by the warning. It told the C nothing he did not already know.
Tomlinson: danger, risk, reasonableness compromise
One cannot say that there was no risk of injury because we know now what happened. But, in my view, it was objectively so small a risk as not to trigger s.1(1) of the 1984 Act, otherwise every injury would suffice because it must imply the existence of some risk. However, and probably more importantly, the degree of risk is central to the assessment of what reasonably should be expected of the occupier and what would be a reasonable response to the existence of that degree of risk. The response should be appropriate and proportionate to both the degree of risk and the seriousness of the outcome at risk.
cases of Jolley v Sutton London Borough Council and Tomlinson v Congleton Borough Council. In both cases the Cs suffered similar injuries doing something silly in a public park. How many differences between the two cases can you identify that might have led to different results
two cases to some extent reveal different philosophies. Do you think that any of these is a relevant distinction: the age of the Cs; the nature of the supposed danger; the knowledge the D had about the danger; the status of the visitor (lawful or unlawful); any others? Cost to repair, social value, sacrifices, free will
Liability of manufacturers
narrow rule in Donoghue v Stevenson [1932] AC 562 (see Chapter 3) recognised that manufacturers owed a duty of care to the ultimate consumers of the manufactured products. Over the years this duty was extended and refined and took on in practice some of the characteristics of strict liability . Parliament has now imposed such a strict liability on manufacturers under the Consumer Protection Act 1987 Although this Act does not expressly have effect in place of the rules of the CL

in practice it affords more satisfactory remedies, overrides Donoghue v Stevenson
employee injured at work has three possible actions against the employer.

NOTE: employers' duties described in this s are owed only to their employees and not to others such as contractors working on the premises or visitors to the premises. Their claims must be based on the principles of CL negligence or on the Occupiers' Liability Acts
An action in N for breach of the employer's duty of care. This is the concern of the present chapter.

ii. An action for breach of statutory duties imposed by Parliament on the employer

iii. The employer may also be vicariously liable for the Ts committed by another employee. note that an employer (even if not personally at fault) is in law answerable for the Ts committed by employees in the course of their employment
nature of the common law action
McDermid v Nash Dredging [1987]
'non-delegable'. duty of Employer to employee
'This special sense does not involve the proposition that the duty cannot be delegated in the sense that it is incapable of being the subject of delegation, but only that the employer cannot escape liability if the duty has been delegated and then not properly performed.
McDermid v Nash Dredging [1987]
M was employed as a deckhand by the Ds, but was sent by them to work on a ship operated by a different company (in fact the parent company of the Ds). He was seriously injured when the captain of the ship (not an employee of the Ds) carelessly operated the safety systems. The Ds were liable because their duty had been delegated to the employees of the parent company and not properly performed.
Wilsons and Clyde Coal Co Ltd v English
(1938)
duty requirements: provision of a competent staff of men, adequate material, and a proper system and effective supervision': the provision of a safe place of work has sometimes been added to the list. These headings do not have to be scrupulously distinguished and applied: they are convenient subdivisions of a general principle of a non-delegable duty of care.
Hatton v Sutherland : work related stress
[2002] VIMP
vulnerable groups: junior hospital doctors working very long hours; social workers with unmanageable case loads. Some jobs involve special pressures: some people cope with them better than others. The CA tried to set out some general principles
16 principles
1. no special mechanisms PI stress, same for all employment types

2. The threshold Q harm RF?
(a) an injury to health which:
(b) is attributable to stress at work

3. RF KOK about the individual employee.assume, employee can withstand the normal pressures.

Factors
(a) the nature and extent of the work, cf similar jobs
(b) signs from the employee of impending harm to health

6. The employer is generally entitled to take what he is told by his employee at face value,

7. signs of impending harm to health=> duty

8. BOD only if failure to take reasnable steps, bearing in mind the magnitude, gravity of the harm, the costs and practicability of preventing it, and the justifications for running the risk., only useful steps

9. The size and scope of the employer's operation, its resources and the demands , include the interests of other employees and the need to treat them fairly, e.g. in any redistribution of duties.

11 confidential advice service, no BOD

12. If only reasonable and effective step=dismiss=> no BOD for willing employee

13. necessary to identify possible steps before BOD

14. C must show causation

15.multiple harms=> proportional, take into account pre-existing
Only the central elements of the employer's duty are likely to have this non-delegable character. It would be most unlikely to apply if, for example, a driver from another company delivering supplies to a factory were Nly to injure some workers at the factory.
The employers/factory owners would be liable only for their own N.
Davie v New Merton Board Mills Ltd [1959]
HL held that the D employers had discharged their duty by purchasing tools from a reputable supplier: the employee could sue the manufacturer of the tool. This was reversed by the Employers' Liability (Defective Equipment) Act 1969. You should note particularly the nature of the employer's liability (s.1) and the definition of fault (s.2). The latter is not confined to N, but includes 'any act or omission which gives rise to liability in T'. This would seem to mean that the employer would be liable if the manufacturer were in breach of the strict liability
imposed by the Consumer Protection Act 1987.
Knowles v Liverpool City Council [1993]
courts have given the word 'equipment' a wide interpretation favourable to injured employees

HL held that s.1(1) of the Employers Liability (Defective Equipment) Act 1969 was to be widely construed and embraced every article of whatsoever kind furnished by the employer for the purpose of the business and not merely articles furnished for the use of employees. Hence a flagstone was equipment within the meaning of the Act.

found that a defective flagstone used by the " . flagger" . employed by the highway authority constituted equipment under the Act and the HL refused to draw a distinction between equipment and materials.
A, an employee of X Ltd, likes to play practical jokes on work colleagues. He balanced a pail of water above a door and invited B, another worker, to walk through the door. B had a weak heart and became seriously ill as a result of being drenched. Advise B.
The employer is unlikely to be vicariously liable (see Chapter 13) but might be liable for failing to provide competent fellow workers (see also Hudson v Ridge Manufacturing Co Ltd [1957]
Hudson v Ridge Manufacturing Co Ltd [1957] not smith v crossley
held that where an employer is aware that the conduct of an employee gives rise to danger due to sky-larking, the employer is under an obligation to take effective steps to remedy the situation. However, if the employer is unaware that practical jokes are being played, as in Smith v Crossley Brothers (1971), he will not be found liable as such acts fall outside of the scope of the employer's business.
E worked as a district nurse from 1993 to 2004 with the W Health Authority. Her workload increased and, after suffering a nervous breakdown, she took early retirement. E asks you for advice. What questions would you ask her about her employment history before giving advice?
See the factors listed as relevant by Hale LJ in the case of Hatton v Sutherland and applied by the HL in Barber