73 terms

Occupiers' Liability

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Occupiers' Liability Act 1957
Act which covers lawful visitors
Definition of Occupiers' liability
Injury caused by the state or condition of premises or things done during the occupation of premises
No
Is there a statutory definition of occupier?
Wheat v Lacon
An occupier is a person who exercises a sufficient degree of control over the premises
n.b. you can also have more than one occupier - here, it was the brewery and the people leasing the pub
Any person who exercises a sufficient degree of control over the premises
Who can be an occupier? (wheat v lacon)
Harris v Birkenhead Corporation
Control of premises can also include legal control. An occupier need not have actual physical possession of the premises
Collier v Anglican Water Authority
It is possible to have multiple occupiers. Here, both the water authority and the local land authority has a sufficient degree of control
AMF International v Welsh
Independent contractors can be occupiers
s1(3)(a) OLA '57
Where to find the definition of 'premises'
any fixed or moveable structure, including any vessel, vehicle or aircraft
The definition of premises is wide and covers not only land and buildings but also....
London Graving Dock v Horton
Ship in a dry dock = premises
Wheeler v Copas
Scaffolding and ladders (moveable structure)
Jolley v Sutton LBC
Derelict boat left on a council state = premise
Gwilliam v W. Hertfordshire Hospital NHS Trust
Temporary splat wall = premises
s2(1) OLA '57
Which section says that the occupier has the right to limt the way in which a visitor behaves whilst on his premises, and if they deviate they can become a trespasser?
The Calgarth
When you invite a person into your house to use the staircase, you do not invite him to slide down the banister
When you invite a person into your house to use the staircase, you do not invite him to slide down the banister
The Calgarth
Pearson v Coleman Bros
Express permission can be restricted by area, but in this case, there were no signs or banners indicating that this was a private area
Stone v Taffe
Express permission can be restricted by time, but in this case, the manager of a pub had not made it clear that there was a time limite, and the claimant was still a visitor
R v Smith and Jones
Express permission can be limited by purpose - if a person goes beyond the purpose which they were invited onto the premises for, they may become a trespasser, as in this case
Implied permission
This is where a person has not been prohibited from entering the premises, nor have they been expressly invited, but their presence is not objectionable.
A postman
Best example of a visitor through implied permission
Lowery v Walker
Implied Permission
Visitor through implied permission. C was using a path as a short cut through D'd and was injured by a wild horse which D had put there.
The fact that D was aware of the presence of people on his land and he failed to stop or limit their presence amounted to an implied licence to enter the property
s2(6) OLA '57
Lawful authorities have a right to enter property which makes them a visitor for the purposes of the act, despite the wishes of the occupier of the land
s5(1) OLA '57
Those who enter premises pursuant to a contract are entitled to entry and are therefore visitors.
s2 OLA '57
'Duty' is defined in which section?
A duty is owed when the above conditions are satisfied
When is a duty owed?
s2(1) OLA '57
The common duty of care is owed to all visitors, except in so far as the occupier is entitled to extend, restrict, modify or exclude his duty
The duty of care is to ensure that the visitor is kept reasonably safe
What is the duty of care?
a reasonably competent occupier
What is the standard of the duty of care?
The standard of _____________
Objective test
Horton v Jackson
C argued that the golf club should have put a screen up to protect people on the golf club.
After 18,000 rounds of golf, there had been no accidents.
Putting a screen up is an unreasonable expectation
Laverton v Kiapasha
Claimant had been out drinking and slipped in the donner kebab shop. The shop had acted reasonably.
Clare v Perry
No Breach
There was no obligation on the defendant to erect a fence because it was not foreseeable that a visitor would jump off the wall.

The essential principle of the case, that a defendant should not be liable for an injury caused by obvious and inherently risky activity voluntarily undertaken by the claimant
c/f Ward v Tesco Stores
Ward v Tesco Stores
Breach
Claimant slipped on a wet floor near a swimming pool. The occupiers may be expected to know that the floor might be wet and it would be reasonable to take precautions. C/F Clare v Perry
Cunningham v Reading FC
Breach
Policeman was hit by a concrete missile thrown by football hooligans. Premises were in a dilapidated state and this allowed the hooligans to break off bits of concrete and thus the occupier was in breach by not guaranteeing the safety of the visitor
s2(3)(a) OLA '57
Children
Higher standard of care for children Which section warns that children are less careful than adults and greater care may be needed to protect them from harm
Phipps v Rochester Corporation
Children
Prudent parent test - ie. if a prudent parent would not have allowed a child to play on a building site, there is no liablity for the defendant. Parents should take responsibility for the act of their children.
Simkiss v Rhondda BC
Children
Prudent parent test (again)
If the child's father did not see the bank as being dangerous, why should the council?
Liddle v Yorkshire CC
Children
Obvious risk
Jumping off a high wall is an obviously dangerous action, known to even a 7 year old
Titchener v BRB
Children
Obvious risk
15 year old boy should have known the risks attached to walking on a railway line at night. Court will consider the risk involved and the age/awareness of a child.
Glasgow Corporation v Taylor
Children
Doctrine of allurement
Child died from eating poisonous berries
Court held that the council should have taken greater measures to draw attention to the danger (by placing signs up).
Jolley v Sutton LBC
Children
Doctrine of allurement
Doctrine also applied to teenagers (in this case, age 13 and 14). It was reasonably forseeable that children may approach an abandoned boat
Doctrine of allurement
Children
An occupier who is aware that something on his land is dangerous would act as an allurement to children must take greater care
Defined in Glasgow Corporation v Taylor
Perry v Butlin's Holiday World
Children
Must make land very safe for small children, especially in places where there is likely to be less parental supervision.
Here, a 3 yr old child was injured falling off a low brick wall
s2(3)(b) OLA '57
Qualification of the standard when there are experts or specialists visiting the premises. Less of a duty of care owed.
Roles v Nathan
No liability as the chimney sweeps did their work without extinguishing the boiler. This was a normal risk that the chimney sweeps should have been aware of and the occupier had also warned them about the risk
Ogwo v Taylor
Firefighter was injured in the course of fighting the fire, but it was a result of the occupier, and not the firefighter.
s2(4)(a) OLA '57
Warnings - may discharge an occupier's duty, but only when it is enough to enable the visitor to be reasonably safe in all the circumstances
Staples v West Dorset District Council
No duty to warn of obvious dangers
Was the risk very obvious? Risk posed by wet algae making rocks slippery was so obvious it did not require prior warning
Darby v National Trust
No need to warn of obvious dangers
A 'no swimming' sign was not required.
s2(1) OLA '57
Section which preserves the common law right that the occupier can:
...in so far as he is free to and does extend, restrict, modify, or exclude his duty...
s1(3) UCTA '77
UCTA only applies for business liability
"...from things done or to be done by a person in the course
of a business (whether his own business or another's)", or "...from the occupation of premises used for business purposes of the occupier".
Therefore, this extends to liabilities incurred in the course of business activities but also to liabilities arising in respect of the occupation of business premises.
s1(1)(c) UCTA '77
Breach of the Occupiers' Liability Act '57 is defined as negligence
s2(1) UCTA '77
Liability for death or PI cannot be excluded
s2(2) UCTA '77
Liability for damage to property can be excluded, subject to the requirement for reasonableness in s11 and schedule 2
s2(3) UCTA '77
States that the fact that a person is aware of an exclusion clause/notice does not in itself mean that they have consented to the risk (UCTA)
BRB v Herrington
principle of 'common humanity': this represents the very minimum legal standard of care which can never be excluded by either agreement or notice.
non-delegable
As a general rule, the duty owed by an occupier to a visitor is ______ __________
s2(4)(b) OLA '57
Where building, construction, repair or renovation is
carried out by an independent contractor, the occupier may escape liability if he acted reasonably in entrusting the work to the independent contractor
reasonably
the occupier must show that he acted ___________ in:
1. hiring an independent contractor.
It must be shown that it was reasonable to use an independent contractor for the job in question, eg the complexity of the task.
2. selecting the independent contractor.
Was it reasonable to choose the independent contractor in question, eg qualifications, experience, etc.?
3. supervising and checking the work was properly done.
Haseldine v Daw
Servicing a lift was technical work that the occupier could not reasonably check. His duty was discharged by engaging a reputable contractor.
Woodward v Mayor of Hastings
Low complexity.
Clearing ice from steps.
Occupier should have checked that the work was done properly - duty was not discharged.
Cork v Kirby
Causation
'But for test' applies
The Wagon Mound No. 1
Damage must be reasonably forseeable
s1(3)(b) OLA '57
OLA only applies to damage to people and property NOT pure economic loss.
s2(5) OLA '57
Defence of volens applies where the claimant agrees to run the risk. It preserves the common law position.
White v Blackmore
Volenti
knowledge of the risk is not enough and the claimant must have a free choice and the opportunity not to run the risk.
Was not warned of the inadequate barrier
s1 Law Reform (Contributory Negligence) Act 1945
Courts have the discretion to reduce damages where they were in part caused by the claimant, to an amount which is just and equitable
s2(3) OLA '57
Allows the defence of contributory negligence
Sayers v Harlow UDC
Example of contrib neg case
Revill v Newbury
Case example of contributory negligence (although this is strictly an OLA 84 case)
In theory yes, subject to the caveat in BRB v Herrington
If not in business liability, can a person complete exclude all liability, even for death and PI?
We simply don't know what the outcome would be - sometimes an occupier may be able to exclude all liability but note the caveat from Herrington v BRB, (albeit that that concerned a child).
SUMMARY
If the occupier and the independent contractor are both joint occupiers (AMF International; Anglican Water Authority - multiples), then the main occupier will try and shift liability to the IC using the defence in s2(4)(b) to shift liability onto the contractor, which, if successful, will mean that the IC is the main defendant and the other occupier has discharged his liability.

If the IC is NOT an occupier (fails to satisfy the test from Wheat v Lacon), the main occupier will still try and discharge his liability using the defence of s2(4)(b). If successful, he will not be liable, and the IC CANNOT be liable either because he is not an occupier (and you need to be an occupier to be a defendant for the purposes of the ACct.

Claimant would need to find an alternative means of suing the IC.