Occupiers' liability

Question 1

Does an occupier owe a common duty of care to all their visitors?

Answer 1

Yes

• Occupier’s Liability Act 1957 governs duty owed by occupiers to visitors
• Occupier’s Liability Act 1984 governs duty owed by occupiers to non-visitors

Question 2

What type of loss is occupier’s liability concerned with?

Loss caused by…

Answer 2

Loss caused by state or condition of premises or things done or omitted to be done during occupation of such premises

Question 3

Does an ‘activity’ on the premises come under occupier’s liability?

Answer 3

No, occupier’s liability relates to ‘state of premises’ rather than activity on it

A separate negligence claim would be more appropriate

Tomlinson - C dived into shallow water of lake, hit head and sustained serious injury - HOL held risk of C suffering injury did not arise from any danger due to state of premises but from C’s acitivity of diving into shallow water

Question 4

What type of loss can a visitor claim for?

Answer 4

Personal injury and property damage

But an OUP MCQ said loss of work can be claimed

Question 5

What is the duty of care owed to visitors by the occupier of a premises?

Answer 5

Take such care as is reasonable in all circumstances to see that visitor will be reasonably safe in using premises for the purposes for which they were permitted by the occupier to be there

Question 6

What must be established re C and D to find an automatic duty of care?

Answer 6

That C is a visitor and D is an occupier

Question 7

Who is an ‘occupier’?

Answer 7

Someone who has a sufficient degree of control over the premises

Question of fact

Question 8

Will the owner always be the occupier?

Answer 8

No! Liability is based on occupancy/control and not ownership

Question 9

In these 4 situations, who is the occupier…

1. Landlord does not live in property
2. Landlord retains some part of premises like common areas
3. Landlord issues a licence
4. Occupier employs independent contractor

From Wheat - Ds owners of pub who granted managers licence to use top floor of private accomodation and paying guests - C (paying guest) fatally injured while using staircase with faulty handrail - who was occupier of the stairs?

Answer 9

1. Landlord not living on property = tenant is occupier
2. Landlord retains some part of premises like stairways = they are the occupier of those parts
3. Landlord issues a licence = they remain an occupier
4. Occupier employs an independent contractor = occupier is generally responsible

Question 10

Can there be multiple occupiers?

Answer 10

Yes! Sufficient degree of control can be shared with others

Exclusive occupation not necesary

Question 11

What is a ‘premises’? Is it limited to buildings?

Answer 11

Any fixed or moveable structure, including any vessel, vehicle or aircraft

Obviously land and buildings. mainly

Has included a ladder

Question 12

Who is a (lawful) ‘visitor’?

Answer 12

Persons who have express or implied permission to be on occupier’s premises

Inc those with lawful authority or contractual permission to be on prem

Question 13

Can express/implied permission be limited?

So that visitor becomes trespasser?

Answer 13

Yes

e.g. ‘no unauthorised entry’

Question 14

How can express permission be limited?

3 different ways

Answer 14

1. Area
2. Time
3. Purpose

Question 15

If limiting express permission by area, what does this mean for visitor entering a denied area and what must the occupier make clear and ensure about the sign?

Answer 15

• Means visitor might not be owed a duty if visitor enters an area to which they are denied permission
• Occupiers must make clear as to areas where visitors are denied access and location of any sign must be appropriate

• Pearson - child in animal enclosure at a circus was attacked by a lion - no signs indicating this was a private area = she was a visitor
• Darby - inconspicuous sign in a car park saying no bathing in pond but car park not next to sign and a lot of other information on sign - court held D had not done enough to turn C into trespasser

Question 16

If limiting express permission by time, what must be the case?

Answer 16

Must be made clear to visitor e.g. opening hours

Stone - manager of pub permitted function to be held upstairs after licencing hours, at 1am guest fell down stairs and died = guest was a visitor

Question 17

If limiting express permission by purpose, what does this mean for visitor if they go beyond purpose they were invited on to premises for?

Answer 17

They will no longer be a visitor - and may become a trespasser - if they go beyond purpose they were invited onto premises for

Tomlinson - made clear to C lake was to be used for canoeing, fishing and windsurfing only - once C started swimming he became a trespasser not a visitor

Question 18

How does implied permission exist and what are the 2 classic examples? How can this be limited?

Answer 18

Permission exists because of occupier’s behaviour, for example…

• Postman has implied permission if they have to walk up a garden path to deliver letters
• People using shortcut have implied permision if they regularly use shortcut, D knows about this and does nothing about it

Can be limited by notice

Cf Edwards - spot on railway used as a shortcut on regular basis - fence repaired whenever damaged but beaten down by people wishing to use as a shortcut - C was hit by train = did not have implied permission as D took reasonable steps to prevent people using railway as a shortcut

Question 19

What is lawful authority and contractual authority?

Answer 19

Lawful authority = police officers with warrant/person with statutory right (e.g. gas board official) can enter premises as lawful visitors with or without permission
Contractual authority - implied term that entrant who enters premises under terms of contract is owed a common duty of care (unless express provision to contrary)

Question 20

Are those using a public or private right of way covered by statutory occupier’s liability?

Answer 20

• Public = No! Must rely on common law
• Private = yes

Question 21

Are those accessing National Parks regarded as visitors?

Answer 21

No but they are owed a duty of care

Question 22

What is the standard of care owed by an occupier to a visitor?

Answer 22

That of the reasonable occupier; reasonable care to see visitor will be reasonably safe in using premises for purposes for which they were permitted by the occupier to be there

Objective test

Question 23

How do personal characteristics affect standard of care owed?

Answer 23

Where the occupier is aware of a vulnerability of the visitor, they are reasonably expected to take steps to guard against it

Pollock - blind C visited friend and fell out open window on second floor - occupier must have regard to such known vulerability - blindness = open window unsafe = D should have warned C/ kept window closed

Question 24

What is the standard of care owed to child visitors?

Answer 24

Higher! An occupier should be prepared for children to act less careful than adults (especially where danger is an ‘allurement’ e.g. bush of poisonous berries)

Jolley 14 y/o started repairing boat abandoned by D council and it fell over and crushed him (was child’s fault) - council liable as it was reasonably foreseeable boat would be allurement to children

Question 25

When can a supervising parent be relied upon by an occupier? What must D do to the premises in this case?

Answer 25

* If it was reasonable for an occupier to **assume a child would be the subject of parental care** * D must make premises safe for child accompanied by an adult ## Footnote Phipps - C (5) went blackberrying with sister across large area of land being developed by Ds - C fell down trench dug by D's employee - trench would have been obvious to adult, and was held that prudent parents would not have allowed young child to walk across area in question and therefore Ds entitled to assume children would not come on to premises / would be accompanied by adult

Question 26

What is the standard of care for persons entering the premises in the exercise of their calling?

Answer 26

Occupier can reasonably expect visitior coming on premises to exercise skills to **appreciate and guard against any risks ordinarily incidental to it**; standard of care lower ## Footnote **Roles** - no liability where chimney sweeps died of carbon monoxide as this was a normal risk connected to their work and training which they should have protected themselves against

Question 27

How is it decided if a D has fallen below standard of care?

Answer 27

Same as negligence claim e.g. likelihood of harm, magnitude of harm, social value, cost of preventatitve measures etc. ## Footnote Tedstone - slipping on a small patch of water near swimming pool where D carries out regular inspections = no liability (reasonable D would not have done more)

Question 28

When considering reasonable steps that should be taken by D, what of D's will be taken into account?

Answer 28

The resources available to occupier ## Footnote Laverton - raining and D's takeaway shop floor wet, C slipped and broke ankle - D had slip-resistant tiles, doormat to limit water brought in on feet of cusotmers, and a system of mopping up water - D had done all reasonably expected of them (for business of that size)

Question 29

How can a D discharge their duty? Must it be in a certain form?

Answer 29

Where there is adequate **warning** of any danger (written, oral or visual) ## Footnote An occupier will satisfy the common duty of care if they warn the visitor of the danger and the warning was enough to enable the visitor to be reasonably safe

Question 30

What should a warning contain? | 3 things

Answer 30

What the danger is, where it is and how to avoid it

Question 31

Where would a warning not be necessary?

Answer 31

Where danger is very **obvious** e.g. sea wall covered in algae will obviously be slippery

Question 32

Can a warning also operate as an exclusion notice?

Answer 32

Yes! E.g. *These stairs are very dangerous, please take care (**warning**). Under no circumstances will the occupier be liable for any injury caused to those using the stairs (**exclusion notice**)*

Question 33

Can the duty owed by an occupier be delegated?

Answer 33

Generally, no

Question 34

What are the 3 requirements for an occupier to escape liability from a claim that arose from work carried out by an independent contractor? | Act reasonably in....

Answer 34

If occupier acted reasonably in... 1. **Hiring independent contractor** - must be shown it was reasonable to use contractor (would rarely be unreasonable) 2. **Selecting independent contractor** - taken steps to check they are competent (bar higher for official bodies than individual) 3. **Supervising and checking work is done properly** - can only do what is reasonable; depends on work in question

Question 35

Should supervision of an independent contractor always be to the same degree?

Answer 35

Expected to supervise for basic danger more than technical ones * Haseldine - lift plummeted to basement - caused by negligence of highly reputable lift engineers * Woodward - pupil at D's school injured himself on icy step left in dangerous condition by cleaner - as no technical knowledge required to realise danger, D was able and should have supervised contractor in question

Question 36

Is causation and remoteness assumed?

Answer 36

Yes (for some reason) - once loss suffered by C and D breaches duty, there is an assumption that they are satisfied | Same for non-visitors

Question 37

What defences can a D rely on?

Answer 37

1. **Volenti/consent** - C must be fully aware of risk and accept it 2. **Contributory negligence** - degree of care ordinarily looked for in a visitor (or child) 3. **Illegality**

Question 38

For the defence of consent to not operate, what will C not be?

Answer 38

**Fully aware** of a particular risk ## Footnote White - C spectator at car rally which had notices on sight stating that there was a danger - wheel from one of vehicles catapulted at C and killed him - consent did not apply as was not fully aware of risk caused by inadequte barrier Cf Tichener - 15 y/o consented to risk where she walked through gap in fence on to live railway line

Question 39

Summary of claims for duty owed to visitor under OLA 1957

Answer 39

Question 40

Does the occupier have a duty to take reasonable care to see that **non-visitors** (trespassers) do not suffer injury on their premises?

Answer 40

If certain conditions are satisfied | A different statute to visitors

Question 41

What type of damage is an occupier liable for re non-visitors?

Answer 41

Only physical injury and impairment to a person's physical or mental condition | **Property damage not recoverable**

Question 42

Are there different rules for the terms 'occupier' and 'premises' for non-visitors?

Answer 42

No

Question 43

What is a 'non-visitor' (trespasser)? | What is their presence to D? (2 things)

Answer 43

Someone who goes on to land without invitation and whose presence to D is: * Unknown; or * Known and D practically objects (e.g. Dumbreck - field used as play area by children who were warned out of area from time to time; but warnings disregarded)

Question 44

Is the duty owed by an occupier to a non-visitor automatic?

Answer 44

No - a 3 stage test must be satisfied

Question 45

What is the 3 stage test for when a duty is owed by an occupier to a non-visitor?

Answer 45

1. **'Know' about danger** (aware of danger/have reasonable grounds to believe it exists) 2. **'Know' other is in vicinity of danger whether lawful or not** (know or have reasonable grounds to believe that the other is in vicinity of the danger concerned or that they may come into its vicinity) 3. **Risk is one that they may reasonably be expected to offer the other some protection** against in all the circumstances | They = occupier

Question 46

What must occupier have actual knowledge of to be aware of the danger/have reasonable grounds to believe it exists? | Re stage 1

Answer 46

Actual knowledge of facts which would lead reasonable occupier to be aware of danger ## Footnote Rhind - C dived into lake and suffered head injuries on fibreglass container not visible from surcace; Ds had no knowledge nor reasonabel grounds to believe container was there and no duty owed

Question 47

What must occupier have actual knowledge of to know or have reasonable grounds to believe that other is in/may come into vicinity of danger? | Re stage 2

Answer 47

D must have actual knowledge of C's **presence** in vicinity **or** of facs which would create reasonable belief that there was another **likely to be present** ## Footnote Donoghue - C suffered injuries diving into D's harbour - no duty owed as although D was aware people swam in harbour during summer, were not aware they did during winter

Question 48

When will it be reasonable to protect the non-visitor against the risk? When C decides to do what will no duty usually be owed? | Re stage 3

Answer 48

* Different factors of breach considered e.g. costs of requiring occupier to make premises safer, whether danger obvious or hidden, severity of injury, child or adult * No duty usually owed where C freely chooses to engage in an activity that carries inherent risk

Question 49

What amounts to reasonable care for the occupier (for non-visitors)? | What factors will be considered?

Answer 49

Standard of care is that of a **reasonable occupier** - when deciding what amounts to reasonable care factors considered include: * Nature of danger (hidden or obvious and degre) * Whether C was child or adult * Nature of premises (how dangerous they are e.g. building site) * Purpose of C (burglar or trespassing by accident?) * Whether occupier could/should have foreseen trespassing (more likely trespass = more measures to be taken) ## Footnote These are taken into account alongside the negligence breach factors (likelihood of harm, magnitude of harm, cost of preventative measures etc.)

Question 50

Is the duty of the occupier as onerous as that to a visitor for a non-visitor?

Answer 50

No - courts will take into account the fact the C is a non-visitor and D's duty will be less onerous E.g. **Swain** - D erected 7ft fence with barbed wire around factory - child snuck in and injured self - no breach; evidence of reasonable steps, no sign of previous trespass ## Footnote But cf Young - D council liable for C's injury who had fallen through school roof - children climbing on roof was a known risk which had not been protected against and had a low-cost solution e.g. fencing off

Question 51

Is it easier to satisfy the giving of a warning for non-visitors? With what non-visitor might this be harder for?

Answer 51

* Yes - D just needs to take reasonable steps to bring danger to C's attention to sufficiently discourage trespassing; notice will suffice * But may be harder with children who cannot read!

Question 52

Are causation and remoteness dealt with the same as visitors for non-visitors? | Presumed

Answer 52

Yes

Question 53

What defences can be argued in the case of non-visitors?

Answer 53

1. **Consent** - e.g. trespasser voluntarily engages in dangerous activity (Ratcliff - drunk student climbed over locked gate and broke neck diving into swimming pool - no breach anyway, but could not have been as C was well aware of risks and could not rely on intoxication) 2. **Contributory negligence** 3. **Illegality**

Question 54

Summary of claims for non-visitors

Answer 54

Question 55

What are the 4 restrictions on an occupier when using an exclusion clause to limit their liability to the visitor?

Answer 55

1. Section 3 OLA 2. UCTA 3. CRA 4. Common law

Question 56

Under Section 3 OLA, for whom can a DOC not be restricted or exclued by contract?

Answer 56

An occupier, where bound to allow people who are strangers to enter/use premises, cannot restrict or exclude the DOC owed to those **strangers** (as visitors) | Stranger = someone not entitled to benefit from contract (employees) ## Footnote E.g. if occupier contracts with X for X's employees to do work on occupier's premises - occupier cannot restrict/exlude any liability to them under OLA

Question 57

What cannot and can be restricted under UCTA?

Answer 57

* Cannot limit liability for death or personal injury * Can exclude/restrict liability for negligence if term/notice satisfies requirement of reasonableness (fair and reasonable to allow reliance on the notice)

Question 58

What cannot and can be restricted under CRA?

Answer 58

* Cannot limit liability for death or personal injury * Can limit liability if term/notice is fair - unfair = if contrary to requirement of good faith it causes significant imbalance in parties' rights and obligations under contract to detriment of consumer

Question 59

Under the common law, against what should restrictions be judged? | If earlier examples do not apply

Answer 59

Restrictions should be judged against principle of '**common humanity**'

Question 60

What is the principle of common humanity? Will it ever be unresaonable?

Answer 60

The minimum legal standard of care which can never be excluded by agreement or notice * Would a conscientious person with D's knowledge, skill and resources be resaonably expected to have done something which would have helped avoid the accident * May be unreasonable if cost/practicalities of making premises safe are minimal

Question 61

Is it possible to exclude liability for non-visitors?

Answer 61

Not clear - likely that same common law restriction would apply | CRA and UCTA would not