Occupiers liability

Question 1

a tort scenario in EOY is on OL

Answer 1

c

Question 2

What is occupiers’ liability?

Answer 2

• Concerns the duty of care owed by those who occupy real property, through ownership or lease, to people who visit or trespass.
• It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises.

Question 3

What two acts deal with occupiers’ liability?

Answer 3

• The Occupier’s Liability Act 1957 deals with lawful visitors
• The Occupiers’ Liability Act 1984 with trespasses

Question 4

What is ‘real property’?

Answer 4

• Some kind of building or structure either through full legal ownership or someone that is leasing the premises.
• Whoever is in control of the property is the occupier

Question 5

What are occupiers?

Answer 5

• No statutory definition of an occupier. They are basically anybody who is deemed to be in control of a premises
• Generally they are the ones who have an insurance policy to meet the claim
• Wheat v Lacon & Co. Ltd (1966)
• Harris v Birkenhead Corporation (1976)
• Sometimes decisions as to who the occupier actually is can be odd. Bailey v Armes (1999)

Question 6

What is a premises?

Answer 6

Like occupier, there is also not statutory definition for premises. Most interpret it as meaning any fixed or moveable structure, vessels, vehicles or land

Question 7

Who is classed as a ‘lawful adult visitor’?

Answer 7

• Invitees
• Licensees
• Those with contractual permission
• Those with statutory rights of entry - police, meter readers etc.

Question 8

Examples of cases including ‘lawful adult visitors’?

Answer 8

• Laverton v Kiapasha Takeaway Supreme (2002) - The responsibility on the occupier is to make sure that the visitor is safe to at least a reasonable level.
• Cathedral v Debell (2016) - Absolute safety cannot be guaranteed. Dean and Chapter of Rochester
• Cole v Davis-Gilbert, The Royal British Legion and others (2007) - Sometimes in cases the claimant might win, but then lose on appeal.

Question 9

How does occupiers liability work with children?

Answer 9

• Extra special duty of care since children are less careful than adults
• Subjective, depends on the age of the child. Glasgow Corporation v Taylor (1922)
• Sometimes the occupier is not found liable because the child affected was not supervised by an adult or parent. Phipps v Rochester Corporation (1955)

Question 10

How does occupiers’ liability work with people carrying out a trade or calling?

Answer 10

• If a tradesman is working on a premises, then the occupier will owe them a duty of care
• If however, the tradesman has failed to protect himself from any special risks, then the occupier may not be liable. Roles v Nathan (1963)
• (However, the injury must be related to the actual trade, if it is caused by something else, the occupier is liable)

Question 11

How does occupiers’ liability work for independent contractors?

Answer 11

• If a lawful visitor is injured by a workman’s negligent work, then there is a case where the occupier may be able to pass the defence onto them instead.

S 2(4) 1957 Act. 3 requirements have to be met here however:

1. The work given to the contractor must ideally have been specialist and complicated. In other words, something the occupier would not have been able to do themselves. Haseldine v Daw & Son Ltd (1941)
2. The contractor hired must be competent to carry out the task. The occupier should check references, insurance etc. Bottomely v Todmordern Cricket Club (2003)
3. The occupier needs to check that the work has been properly done. Woodward v The Mayor of Hastings (1945)

Question 12

What are the type of defences to a claim by a lawful visitor?

Answer 12

• Contributory negligence - works in the same way as regular negligence defences.
• (Consent) volenti - same as in negligence also
• Warning notices - can act as a complete defence
• Exclusion clauses [s 2(1) of the 1957 Act]

Question 13

What is an exclusion clause?

Answer 13

Where there is something in the print which will exclude the occupier from any duty

Question 14

What is the legal test of causation?

Answer 14

• Wagon man case.
• The Wagon Mound (1962) - This is the test for proximity of damage; in other how remote was the possibility of damage or injury in a claim. You have to look at the chain of causation
• (The possibility of damage or the foreseeable of it)

Question 15

How does liability for trespassers work: the Occupiers’ Liability Act 1984?

Answer 15

• Occupier owed the trespasser no duty at all
• Change from the House of Lords with the Practice Statement 1966
• Duty of ‘common humanity’ to trespassers - British Rail Board v Herrington (1972). 1984 Act comes in as a result
• The 1984 Act only refers to personal injury, not damage to property
• S 1(3) - Occupier is aware of the danger
• They are aware that others may come into the vicinity of the danger
• They may be expected to offer some protection
• The greater the risk, the more precautions that need to be taken
• The age of the trespasser may be taken into account, but in other cases it may not

Question 16

What are the factors affecting liability in the 1957 Occupiers Liability Act?

Answer 16

• Lawful visitors
• Children, special extra duty
• No need for occupier to be aware of the risk, they will still be liable
• Reasonable precautions to make the risk safe

Question 17

What are the factors affecting liability in the 1984 Occupiers Liability Act?

Answer 17

• Trespassers
• Generally no distinction between adults/ children
• Occupier needs to be aware of the risk to be liable
• Some precautions necessary
• No liability if the danger is obvious and the trespasser is an adult. Ratcliff v McConnell (1999)
• Time of day and time of year - Donoghue v Folkestone Properties (2003)
• Occupiers are not expected to spend lots of money risk proofing premises from obvious dangers - Tomlinson v Congleton Borough Council (2003)
• No liability if the occupier had no reason to suspect trespasser’s presence - Higgs v foster (2004)
• If the occupier is unaware of the danger, then they are also not liable - Rhind v Astbury Water Park (2004)
• Child trespassers and adult trespassers are covered by the same statutory rules - Keown v Coventry Healthcare NHS Trust (2006) and Baldaccino v West Wittering (2008)

Question 18

What are the defences to a claim by a trespasser?

Answer 18

• Contributory negligence
• Consent
• Warning in very clear terms
• E.g. Westwood v Post Office (1973)

Question 19

How does remedies relate to occupiers liability?

Answer 19

• Trespassers can only claim damages for personal injuries

Question 20

What are some issues in Occupiers’ liability that share the same issues as the tort of negligence?

Answer 20

• Cost,
• Delay
• Need to use lawyers
• Confrontation

Question 21

What are the differences between the 1957 and the 1984 Acts relating to personal injury?

Answer 21

• 1957 Act - Allows for personal injury and damage to property claims, whereas the 1984 Act only allows for personal injury
• Even in these circumstances however, personal injury claims might fail. In the Tomlinson v Congleton DC case, Lord Hoffman said that it would be unreasonable to expect occupiers to have to go over the top and spend vast sums of money to ensure the safety of trespassers

Question 22

What is the difference between an objective and a subjective approach?

Answer 22

• Objective: 1957 Act requires the occupier to do all in their ower to ensure that the visitor will be reasonably safe

. E.g. If a worker is injured at work because of dangerous equipment, the occupier will be liable, even if they were unaware the equipment was faulty

• Subjective: 1984 Act demands that the occupier needs to be aware or have reasonable grounds to believe that there is a danger before they are liable subjective

e.g. Donoghue v Folkestone Properties (2003). I.e. Its case-by-case

Question 23

How is the occupier’s duty established In both acts 1984 and 1957?

Answer 23

• The particular danger needs to be identified before the occupier’s duty can be established
• The 1984 Act requires actual knowledge of the danger, whereas this does not seem to be implied by the 1957 Act
• In Rhind v Astby (2004), the occupier had no knowledge of the danger, so what not liable
• The 1984 Act doesn’t seem to require the occupier to check for danger on their premises

Question 23

What are the difference of approaches to the 1957 and 1984 Acts?

Answer 23

1957 Act - Doesn’t require the court to consider whether the premises are safe for the particular visitor injured (unless they are a child)

1984 Act - Although trespassers have the right to make claims, judges have usually found ways of ruling against them

• Judges will usually raise the issue of an obvious danger when they feel the trespasser should have appreciated this
• Edwards v Sutton LBC (2016) also makes clear that when there is an obvious danger, this also applies to the 1957 Act.

Question 24

What is allurement?

Answer 24

• Something (dangerous) that attracts a child’s attention

Question 25

How does allurement apply to a OL case?

Answer 25

• Since there is no rule set as to age limit, if an ‘allurement’ exists, then if the damage or injury is not foreseeable, there may be no liability on the occupier.
• E.g. Jolley v London Borough of Sutton (2000)

Question 26

Examples of cases explaining occupiers?

Answer 26

• Wheat v Lacon & Co. Ltd
• Harris v BIrkenhead Corporation (1976)
• Bailey v Armes (1999) - sometimes decisions as to who the occupier is can be odd

Question 27

Why might warning notices not be a good enough defence?

Answer 27

• s 2(4) of the 1957 Act are ineffective unless they enable the visitor in all circumstances to be completely safe. Sometimes a sign alone won’t be enough to do this. Rae v Marrs (UK) Ltd (1990)
• However if the danger is obvious, then no additional warning is necessary. Staples v West Dorset District Council (1995)

Question 28

What is the defence of an exclusion clause?

Answer 28

• s 2(1) of the 1957 Act
• Where the occupier excludes their duty completely for any injury caused to a visitor by way of a warning, but unlike a simple warning sign, this must be made very clear on the sign
• (Can’t work with child visitors who may struggle to understand or restrict liability for death or personal injury resulting from negligence)