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Tort 6: Occupier's liability

Terms in this set (111)

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.
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.
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