Occupiers' Liabililty (Second Part) Flashcards
(58 cards)
Lowery v Walker
2.1.3.3. Distinguishing “Visitors” and “Non-visitors” : How Trespassers can be upgraded to “visitors”
-Plaintiff was not given (express) permission to enter the field
BUT –
-D had knowledge that the public habitually entered/used the field as a shortcut;
-D did not take any steps to prevent the public from entering the field.
- D knew that people were trespassing
Held: implied license/ permission applied and they were upgraded.
Edwards v Railway Executive
2.1.3.3. Distinguishing “Visitors” and “Non-visitors” : How Trespassers can be upgraded to “visitors”
- D erected a fence to prevent entry on to the embankment, repaired it several times & fence was in bad condition the day of the accident
- A child got electrocuted.
“that knowledge of itself constitutes the children licensees, in my opinion, carries the doctrine of implied licence much too far…though no doubt where the owner of the premises knows that the public or some portion of it is accustomed to trespass over his land he must take steps to show that he resents and will try to prevent the invasion.”
Held: child a trespasser
Phipps v Rochester Corp
2.1.3.3. Distinguishing “Visitors” and “Non-visitors” : How Trespassers can be upgraded to “visitors”
- Two children passed across grassland which was part of a building site located on a housing estate that was in the process of being developed by the defendants.
- The developers had dug a deep trench for the purposes of sewage for the houses and the boy, aged five, fell in and broke his leg.
-The children lived locally and were in the habit of using the land to which the defendants had not taken any steps to prevent from happening.
Held: Children were implied licensees
“there must be something more”
“a class of people who form something of habit”
Cooke v Midland Great Western Railway of Ireland
2.1.3.3. Distinguishing “Visitors” and “Non-visitors” : How Trespassers can be upgraded to “visitors”
Doctrine of Allurement
-Allurement, Attraction, Temptation
No steps taken to prevent access to the turntable.
Conclusion – Child was a licensee (implied license/ permission)
““(…) it does not seem unreasonable to hold that, if they allow their property to be open to all comers, infants as well as children of maturer age, and place upon it a machine attractive to children and dangerous as a plaything, they may be responsible in damages to those who resort to it with their tacit permission “
Jolley v Sutton [2000]
2.1.3.3. Distinguishing “Visitors” and “Non-visitors” : How Trespassers can be upgraded to “visitors”
“(…) it has been repeatedly said in cases about children that their ingenuity in finding unexpected ways of doing mischief to themselves and others should never be underestimated. For these reasons, I think that the judge’s broad description of the risk as being that children would “meddle with the boat at the risk of some physical injury” was the correct one to adopt on the facts of this case.”
-Abandoned boat = allurement
-Local Council put a note saying that they will take the boat after 14 days and they did not.
-Boat should have been removed
Conclusion - Children were licensees. (implied license/ permission)
Does the doctrine of allurement still apply nowadays?- Yes, note case date (2000)
2.1.3.4. Distinguishing “Visitors” and “Non-visitors” : “visitors” can be downgraded to trespassers
Visitors become trespassers when they exceed the bounds of their permission
Permission can be limited in 3 ways –
-Permission can be limited to certain spaces
-Permission can be time-limited
-Permission can be limited to certain purposes
Gould v. McAuliffe
2.1.3.4. Distinguishing “Visitors” and “Non-visitors” : “visitors” can be downgraded to trespassers
Factors taken into account to determine if a visitor has become a trespasser:
1. Notice informing that an area is out of bounds?
2. For contractual entrants = what areas were included in the leased premises?
- The claimant was a customer in a pub who when looking for the toilets, went through an unlocked gate into a private area, where she was attacked by a dog. - The defendants argued that although she was a visitor to the pub, by going into a private area she had become a trespasser.
Held: Pub liable. The person was not downgraded to a trespasser. The court rejected this because it was not clear that the area was private. They held that if an occupier wants to restrict access to part of the premises, they must take reasonable steps to inform visitors of it.
The Calgarth
2.1.3.4. Distinguishing “Visitors” and “Non-visitors” : “visitors” can be downgraded to trespassers
Factors taken into account to determine if a visitor has become a trespasser:
-The purpose for which the permission was granted
-A ship (The Calgarth) had a right of way to pass through a set of locks to access a dock.
-However, instead of just passing through, the ship used the passage to access another area it had no right to enter.
-The owners of the dock objected, claiming the ship had trespassed by going beyond its permitted use.
Held: The ship trespassed. They were downgraded to a trespasser.
“When you invite someone into your house to use the staircase, you do not invite them to slide down the banisters.”
Tomlinson v Congleton Borough Council
2.1.3.4. Distinguishing “Visitors” and “Non-visitors” : “visitors” can be downgraded to trespassers
Factors taken into account to determine if a visitor has become a trespasser:
-The purpose for which the permission was granted
- Dived head first into the shallow lake.
- The park was open to everyone but they were not allowed to swim at all.
- Visitors was downgraded to trespassers.
“There is no dispute that (…) diving into the water, was to his knowledge prohibited by the terms upon which he had been admitted to the park. It is, I think, for this reason that the council owed him no duty under the 1957 Act and that the incidence and content of any duty they may have owed was governed by the 1984 Act. ”
2.1.3.4. Distinguishing “Visitors” and “Non-visitors” : “visitors” can be downgraded to trespassers
Factors taken into account to determine if a visitor has become a trespasser:
-The time for which the permission was granted
-A police officer lawfully entered the front garden of a house to speak with the occupier.
-This entry was based on an implied license—a common law principle that allows people (including police) to approach a front door to knock and speak.
-The occupier assaulted the officer and tried to forcibly remove him.
-The officer was still within the bounds of the implied license and had not been asked to leave before the assault.
2.2 Occupiers’ liability toward ‘visitors’- OLA 1957
2.2.1 The actionable damage for visitors
2.2.2 The content of the duty of care owed to “visitors”
2.2.3 Proving the breach of duty of care
2.2.1 The actionable damage for visitors
Claimant can obtain compensation for:
-injury or damage resulting to persons
-Damage resulting to goods
~ OLA 1957 s.1(3) (b)
2.2.2.1 The definition of the “common duty of care
OLA 1957, s. 2(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 or she is invited or permitted by the occupier to be there”.
Duty towards the visitor – Visitor, not premises, must be reasonably safe (ex. blind man- you might need to take extra measure for a blind visitor)
Duty to take care – mere omissions could lead to liability
OLA 1957, s. 5(1) – For contractual entrants
In the silence of the contract, the common duty of care applies
2.2.2.2. The standard of care - principle
“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 (…)”
Standard – reasonable care
What is reasonable to expect from the O depends on “all the circumstances”
Kiapasha (t/as Takeway Supreme) v. Laverton
-Drunk lady slipped on the wet floor
-The takeaway owners had installed non-slip tiles and mopped the floor regularly when it was wet.
Held: No breach of the duty of care – no liability
It was “not reasonable to expect the floor to be kept dry at all times”
(per Hale LJ)
2.2.2.3. The standard of care - principle
What does it mean to take “reasonable care”?
The OLA 1957, s. 2(3) –
“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.”
Special Factors (Reasonable Care)
Higher Standard of Care- children
Lower Standard of Care- A professional (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.)
2.2.2.3.1 The standard of care for Children
The OLA 1957, s. 2(3)(a) – “an occupier must be prepared for children to be less careful than adults”
But Phipps v. Rochester:
“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.”
However, the licensee was entitled to take into account that the children’s parents would not permit their children to play without protection in such an area. On this basis, it was held that the developer was not under a duty to take steps to reduce the danger. The responsibility rested primarily on the parents.
2.2.2.3.1 The standard of care for Children
Refer to the diagram in the ppt
2.2.2.3.1 The standard of care for “Skilled Visitors”
The OLA 1957, s. 2(3)(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.”
“Skilled visitors” are expected to take greater care in relation to special risks normally associated with their work compared to lay persons
Roles v Nathan
-The claimant, Mr. Nathan, was a chimney sweep employed to clean a chimney at a property.
-The occupier of the property warned Mr. Nathan that the boiler was in use and that the boiler room contained dangerous fumes.
-Mr. Nathan, a professional chimney sweep, entered the boiler room while it was still in operation, despite the warnings. He did this to carry out his professional duties as a chimney sweep.
-Mr. Nathan was exposed to lethal carbon monoxide fumes and later died as a result.
Held: No duty of care. No Occupier’s Liability
Salmon v. Seafarer Restaurants
-The claimant, Mr. Salmon, was a fireman who entered the defendant’s fish and chip shop (Seafarer Restaurants) in the course of his duties.
-He was injured when an explosion occurred while he attempted to tackle a chip pan fire.
-The fire had resulted from the occupier’s negligence in managing the premises.
Held: Duty of Care
2.2.3. Proving the Breach of Duty
2.2.3.1- Ordinary factors being taken into account
2.2.3.2- Proving the discharge of the duty of care
2.2.3.1. Ordinary factors factors being taken into account
Tomlinson v. Congleton BC
“Even in the case of the duty owed to a lawful visitor undersection 2(2) of the 1957 Act (…) 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.”
