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Flashcards in Occupier's Liability Deck (50)
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1

Tomlinson v Congleton Borough Council (2003)

The *key* case in Occupier's Liability.

Natural features of land can count as 'premises'; in this case, and abandoned quarry.

Warning signs are important signals of where you are authorised to be. Majority proceeded on the basis that passing a ‘Dangerous Water- No Swimming’ sign changed C’s status. But Longmore LJ and, then, Lord Scott (in obiter) were unprepared to accept this. When, exactly, does 'paddling' become 'swimming'? Thus, any duty owed was surely corresponding to the 'visitor' category.

Lord Nicholls and Hoffmann held: "It seems to me that Mr Tomlinson suffered his injury because he chose to indulge in an activity which had inherent dangers, not because the premises were in a dangerous state" [26] (i.e. this did *not* concern the 'state of the premises').

Lord Hoffmann writes: “…there is an important question of freedom at stake. 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" [46].

See Lord Hobhouse at [81]: "The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen."

See also Lord Scott at [94]: "Of course there is some risk of accidents arising out of the joie de vivre of the young, but that is no reason for imposing a grey and dull safety regime on everyone."

See Hoffmann vs Hobhouse in obiter: Shooting on the land? Speedboating? = the 'state' of the premises.

Finally, the HoL emphasised the importance of considering the social utility of D’s act (e.g. for the public interest). Given the titanic importance of this case, it seems that the social utility of D's actions has become an important factor for consideration.

2

Occupier's Liability Act 1957

s.1:
(1): "The rules enacted by the two next following sections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of *premises* owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them." [There is thus a preliminary question as to whether the act is engaged in at all; i.e. concerning the 'state of the premises']

(2): 'Visitors' are the equivalent of the common law invitees/licensees

(3): "The rules so enacted in relation to an occupier of premises and his visitors shall also apply, in like manner and to the like extent as the principles applicable at common law to an occupier of premises and his invitees or licensees would apply, to regulate—
(a) the obligations of a person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft; and
(b) the obligations of a person occupying or having control over any premises or structure in respect of damage to property, including the property of persons who are not themselves his visitors."


(4): A person entering any premises in exercise of rights conferred by virtue of—
(a) section 2(1) of the Countryside and Rights of Way Act 2000, or
(b) an access agreement or order under the National Parks and Access to the Countryside Act 1949,
is not, for the purposes of this Act, a visitor of the occupier of the premises [i.e. shifted to the 1984 Act].

s.2: Extent of occupier’s ordinary duty -
(1): "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."

(2): "The common duty of care 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."

(3): The known vulnerabilities of the claimant can alter standard: "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
(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;
(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."

(5): preserves volenti non fit inuria as a defence.

(6): Those who enter 'by right' (e.g. police and emergency services) need not be categorised as 'visitors' to be afforded the same protection.

s.5: Act extends to cover contractors.

3

Occupier's Liability Act 1984

s.1:
(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…"

(2): definition of 'occupier' is to be found in s.2 OLA 1957 [which in turn refers to one who owes a 'common duty of care']

(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."

(5): "Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk."

(6): preserves the volenti non fit inuria defence.

(6A): rules out liability for risks arising as a natural feature of the landscape (but preserves the chance of a claim where risk is deliberately created)

(8): "Where a person owes a duty by virtue of this section, he does not, by reason of any breach of the duty, incur any liability in respect of any loss of or damage to property."

4

Jolley v Sutton LBC (2000) [also seen in the Legal Causation deck]

A small boat 'count' as 'premises' for the purposes of the OLA 1957.

The foreseeability of risk is also different when dealing with children -be prepared for children to endanger themselves in unexpected ways! So nature and foreseeability different. All that is required, then, is that foreseeability that injury would happen in 'some' way.

5

Furmedge v Chester-Le-Street BC (2011)

A 'posh' bouncy castle can be viewed as a 'premises' for the purposes of the OLA 1957.

D, project manager of a public event, was the occupier of a large PVC exhibition space which came loose and killed people. D’s employees had dismantled, transported, re-mantled and acted as stewards and they should have appreciated the risk to visitors.

6

Pearson v Coleman Bros (1948)

Child searching for a toilet still an invitee (i.e. a visitor post-1957) when she was mauled by a lion after wandering off in a circus.

7

The Carlgarth (1926)

"When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters, you invite him to use the staircase in the ordinary way in which it is used" (Scrutton LJ).

Thus, behaviour can 'shift' you between categories.

8

Geary v J D Wetherspoon (2011)

C slides down the bannisters in a pub, falls and fractures her spine. Held: No liability; C's behaviour 'shifted' her category as per the OLA.

9

Kolasa v Ealing Hospital NHS Trust (2015)

C climbed over a wall and fell 30 feet.

"…although when the Claimant was brought to the hospital and was put to wait in A&E he was a visitor to the hospital and was owed the common duty of care under section 2(2) of the 1957 Act, his act of climbing over the wall was not an act covered by his general permission to be on the site as a patient nor was it part of the permission given by the Defendant to patients leaving the site after, or even without, treatment. He was, therefore, no longer an invitee or visitor but a trespasser."

Claim thus dismissed.

This has subsequently been subject to some criticism; see Spearman.

10

Spearman v Royal Utd Bath NHS Trust (2017)

C suffers a hypoglycemic attack and is taken to hospital. Within 15 minutes he wanders away from the emergency department, climbs five flights of stairs, steps over a barrier and falls into the courtyard.

Held: Approach in Koalsa of whether C is in an authorised place not solely determinative. The hospital was eventually held liable.

"A person's state of mind and intention is an important additional factor. If a patient, who is a lawful visitor to a hospital (whether the Emergency Department or any other department) has finished his or her treatment and is leaving, he or she does not cease to be a visitor in general until they leave the hospital premises. The position may be different if they deliberately enter an area marked "no entry", or "private" or know that they are entering a part of the hospital where they have no right to be. But if the patient simply makes a mistake and goes the wrong way, it could not possibly be suggested that such a person was now a trespasser. So here, intending to leave the Emergency Department, Mr Spearman, in his confused state of mind, thought (wrongly but honestly) that he needed to go upstairs to get out and, indeed, go over the barrier to get out. His belief meant that he remained a lawful visitor and, in my judgment, he did not become a trespasser at any time material to this case."

11

Snook v Manion (1982)

Permission to enter premises can be revoked but must be clear and within a reasonable time period.

Use of ‘the reply given in Arkell v Pressdram’ (i.e. 'fuck off') was, apparently insufficient to revoke permission for policemen to be on the premises.

12

Cavalier v Pope (1906)

An occupier was akin to a ‘bouncer’; moreover, the mere fact that the owner has a contractual duty to e.g. fix things does *not* mean he is the occupier.

13

Wheat v Lacon (1966)

The key case in resolving what constitutes an 'occupier'.

D, a brewers firm, leased a pub to R as manager and licensee. R and Mrs R lived in a flat above the pub, but with *no* resulting property right or tenancy. D allowed R to have guests stay. C’s husband, a guest, was found dead at the bottom of a set of stairs in the pub, with an incomplete handrail, and no working light at the top. C sued R and D under the 1957 Act. Failed against R but appealed on the claim against D

Held: D were occupiers either, per the majority, because a company can *occupy premises through its employees*, or, per Denning, because they had *(factual) control of the premises, despite not being in physical occupation*. But no breach of the resulting duty. Being incomplete was not enough to make the handrail dangerous and the bulb had been removed by an unknown T.

‘Control’ has gone on to be the decisive concept. Denning started from the idea that the person with ‘immediate supervision and control’ was an occupier: "There is no doubt that a person who fulfils that test is an "occupier." He is the person who says "come in." But I think that test is too narrow by far. There are other people who are "occupiers," even though they do not say "come in." If a person has any degree of control over the state of the premises it is enough."

In this case, D had retained sufficient control in that they had complete control over the bottom of the building, and also over the private parts of the building, as they had not given Rs a tenancy and could enter for repairs. As such, this case confirmed that you could have multiple occupiers (dependent on the degree of control) but, as Lord Morris stressed: "Measure and the content of that duty were *not*, necessarily, the same."

14

Dawson v Page (2013)

Returning to the house to check on the builders and walk your dog has been held to retain enough 'control' of premises.

15

Harris v Birkenhead Corporation (1976)

Possession is not necessary; it is enough that D had asserted their right to dispossess the owner to establish 'control' - even if they actually had not completed the dispossession when C, a child, wandered into the abandoned house and injured themselves.

16

Ferguson v Welsh (1987)

The plaintiff sought damages for personal injury. A council had engaged a competent contractor to carry out demolition works. Unknown to the council, the contractor sub-contracted the works to two brothers who worked in a highly dangerous manner. One of the brothers employed the plaintiff, Mr Ferguson, to help them, and Mr Ferguson was injured when part of the building collapsed.
Held: The council was not liable. Assuming section 2 applied, the council was not liable under 2(4) having engaged a contractor it had reasonable grounds for regarding as competent, and there was no evidence to support any inference that the council or its responsible officers knew or ought to have known that its contractor was likely to contravene the prohibition on sub-contracting. There was no difficulty in finding the plaintiff to be a licensee of one person and at the same time a trespasser as against the defendant

"If it be the case that one only of such occupiers authorises a third person to come onto the land, then plainly the third person is, vis-a-vis that occupier, a lawful visitor. But he may not be a lawful visitor vis-a-vis the other occupier" (Lord Goff).

"In special circumstances, on the other hand, where the occupier knows or has reason to suspect that the contractor is using an unsafe system of work, it might well be reasonable for the occupier to take steps to see that the system was made safe...It is possible to envisage circumstances in which an occupier of premises engaging the services of an independent contractor to carry out work on his premises may, as a result of his state of knowledge and opportunities of supervision, render himself liable to an employee of the contractor who is injured as a result of the defective system of work adopted by the employer. But I incline to think that his liability in such case would be rather that of joint tortfeasor that of an occupier." (discussing a scenario where merely employing a competent IC is not sufficient to discharge a duty under OLA; there is an added duty on the occupier to supervise and check the work of the IC).

17

Shtern v Cummings (2014) (UKPC)

Even if owning land gave D - the controlling shareholder and owner of the land *on which* the hotel *in which* C had been injured by a faulty fridge - some degree of control over the structure of the building, she was not responsible for day-to-day running, so lacked the *necessary control*. May have been an occupier for other purposes, e.g. faulty structure.

18

Fairchild v Glenhaven Funeral Services (2001 - CoA) [also seen in the Factual Causation deck]

The correct action in Fairchild was in negligence, not OLA. This was because ‘….a duty on those occupiers to see that Mr Fairchild was reasonably safe in using the premises for the purposes for which he entered them [was satisfied, as he] encountered no dangers in his use of the premises, as he would have done if he had fallen through an unguarded hole in the floor. It was what was going on in those premises which caused him harm" (Brooke LJ) (i.e. not to do with the premises themselves. Utilised as a controlling mechanism to limit liability found via omissions).

19

Keown v Coventry Healthcare NHS Trust (2006)

C climbed a fire escape for fun and fell. Held that the injury did not flow from the state of the premises, thus no liability as based upon C's own behaviour.

This thus shows that s.1(3)(a) OLA 1984 (D must know, or have reasonable ground to know the danger exists (on their land)) is considered 'broadly'. More broadly, however - and considering s.1(3)(c) and the 'reasonableness' of offering protection - the Courts were doubtful as to whether the Act should be engaged *at all*:

“If it (healthcare trust) had to offer protection from the risk of falling from a normal fire escape, it would presumably have to offer the same protection from falling from drain pipes, balconies, roofs […], windows and even trees in the grounds. *This seems to me to be going too far*. I say this for two reasons. First, the resources of a National Health Service trust are much more sensibly utilised in the treatment and care of patients together with the proper remuneration of nurses and doctors rather than catering for the contingency (one hopes infrequent) that children will climb where they know they should not go. Secondly, if the courts say that such protection should be afforded, it will not just be a matter of putting a fence round a fire-escape or hiring an extra security guard. It is more likely that what will happen will be what in due course the judge found, at para 25, happened in this case. The trust has now built a perimeter fence round the entire site; there is only one entrance; anyone coming in is asked their business; children are turned away” (Longmore LJ).

Again, flowing out of Tomlinson: considering what the 'alternative' would be; how does the world look like if D has to ensure protection of such magnitude? If we take one step, will it go out of control?

(On the other hand - really? Not taking one step because you don't want to take the fifth step? Is that truly practical? Furthermore, is it reasonable for the Courts to deal with the Trust's budget?)

20

Edwards v London Borough of Sutton (2016)

Falling off a small footbridge engaged the occupancy duty. This seems to establish a 'fuzzy line' in the distinction between 'stuff happening on the land' and 'things you have chosen to do with your premises'.

21

Cunningham v Reading FC (1991)

It was held that allowing Bristol City fans to rip up concrete blocks and hurl them at C was fell within occupier's liability (state of premises was such that concrete could be dislodged) - despite the action being done by a third party.

The state of the premises was integral to the undesired behaviour. Moreover, the knowledge of this risk played a role in establishing a duty. Crumbling stadium quite different from an unpredictable shelf-ripper.

22

Revill v Newbery (1995)

Shooting at a trespasser constituted an activity (danger did not flow from the fact that there was shooting taking place on the land; it was simply the individual sitting there waiting).

23

Maguire v Sefton BC (2006)

Proactive system for allowing T to check gym equipment was sufficient to be deemed 'reasonably safe'.

24

Cook v Swansea City Council (2017)

A reactive system that waited for reports from members of the public that the car park was slippery was held to an *effective* proportionate response to the duty under s 2(2). CoA: what is the alternative? A proactive system is simply too costly; having some system in place is better than nothing.

25

Darby v The National Trust (2001)

When one dives into the water, the foreseeable risk is usually of drowning - not contracting a water-borne disease. Importance of 'predictable risk' vis-a-vis OL.

26

Simms v Leigh Rugby Club (1969)

The risk that a player would crash into a concrete wall 7ft from properly set out rugby pitch was too improbable to qualify as a breach of duty. Simply too improbable (that a rugby tackle would carry them 7 feet…).

27

Rochester Cathedral v Debell (2016)

The risk that visitors would trip over small pieces of concrete protruding from a bollard was thought foreseeable at First Instance but, on appeal, the *cost of prevention* proved decisive to overturn the decision:

"There is no recognition in the judgment that *not all foreseeable risks give rise to the duty to take remedial action*. The judge had to apply the concept of reasonable foreseeability taking a practical and realistic approach to the kind of dangers which the Cathedral were obliged to remedy. Had he done that, I do not think that he could have reached the decision he did" (Elias LJ).

28

Pollock v Cahill (2015)

D left an upper window open during the night and C, who was blind fell through it, paralysing himself. C’s ‘hugely competent’ ability to deal with being blind was of relevance to the obvious risk (s.2(3))! The open window constituted such an obvious risk.

29

English Heritage v Taylor (2016)

The risk was a non-obvious sheer drop into a moat from a path; warning signs would have been easy and cheap to erect.

30

Dornan v D.O.E. (N.I.) (1993)

Child falls from a non-rotten tree. Held: no breach in terms of OL. Children climb trees, some fall, some get injured; that is part of growing up. What we need something is less 'obvious' than this (non-rotten tree) to establish liability.