Occupiers' Liability Flashcards
(12 cards)
The two Occupiers’ Liability Acts:
Occupiers’ Liability Act 1957 - covers lawful visitors.
Occupiers’ Liability Act 1984 - covers unlawful visitors.
When is a duty owed - the questions to be asked:
Who is an occupier?
Who is a lawful visitor?
What are premises?
Occupiers, control of premises:
The occupier is the person who has, it is able to exercise, a sufficient degree of control over the premises.
Wheat v Lacon & Co Ltd [1966]
Defendants, Lacon & Co Brewery, let their public house to Mr Richardson to manage and allowed them to live upstairs. Mr Wheat was fatally injured after falling down a flight of poorly lit stairs while staying at the pub. Light bulb at the top had been removed, which meant he couldn’t see that the handrail finished three steps short at the end of the staircase.
HoL held both the brewery and Mr/s Richardson were occupiers, both owed a duty. Brewery had not relinquished complete control: ‘in order to be an “occupier”, it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice to say he has some degree of control. He may share control with others.’
However, neither party had fallen below the standard of care required of them. Not responsible for the acts of a stranger.
Visitors, by invitation or permission only:
An occupier only owes a duty of care to those they have invited or have given permission to enter or use the premises. Key question: ‘did the claimant have express, implied, permission to be in the premises?’
As Scrutton LJ notes: ‘when you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters.’
The occupier may change the terms of their permission and even revoke it entirely while the visitor is on the premises, changing the status of the ‘visitor’.
Signs merely stating ‘keep out’ may not be sufficient.
Premises:
Under the 1957 Act the definition of premises extends to: ‘any fixed or loveable structure, including any vessel, vehicle or aircraft.’
Standard of care, normal:
An occupier owes a positive duty to take ‘such cafe 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.’
‘Take reasonable care to provide reasonable safety.’
Bowen v National Trust [2011]
Claimant killed by a branch falling entirely without warning on a group of school children sheltering under a tree at Felbrigg Hall (National Trust owned). Claimants argues the defendant’s tree inspectors, for whom they are vicariously liable, failed to exercise reasonable care to spot the tree and tag it as requiring remedial action. Rejecting their claim, McKay suggested it was: ‘the cruelest coincidence’.
Standard of care, children:
Children invite into premises are owed a common duty like all other visitors. However, where a visitor is a child more may be required of the occupier to ensure that they are kept reasonably safe.
Occupiers will generally owe a higher standard of care to children than to older visitors.
Holley v Sutton London Borough Council [2000]
A boat had been abandoned for two years on land owned by the defendant. It was rotten. The claimant, 14, was crushed when the boat fell on him.
The HoL held the council liable, noting that the boat was likely to be a particular attraction - or an ‘allurement’ - to children.
Lord Hoffman stated: ‘children’s ingenuity in finding unexpected ways of doing mischief to themselves and there should never be underestimated.’
‘Responsibility on children must rest primarily on the parents.’
Standard of care, ‘persons in the exercise of a calling’:
Skilled visitors are expected to guard against special risks associated with their profession.
Roles v Nathan [1963]
Two chimney sweeps died whilst trying to mend the chimney if a coke-fired boiler. Though they had been warned repeatedly that the boiler room was dangerous and were told to leave, they had carried on working.
The CoA dismissed the claim under two heads: first, a householder can expect a specialist to appreciate and guard against dangers associated with their trade. Secondly, the warning had been sufficient to ensure that the sweeps were ‘reasonably safe’.
Lord Denning held: occupiers not liable for dangers which were special risks ordinarily incidental to their calling.
Standard of care, faulty execution of work:
The more technical the work, the more reasonable it will be to entrust it to an independent contractor.
Gwilliam v West Hertfordshire Hospitals NHS Trust [2002]
63 y/o claimant injured while using a splat ru run by an independent contractor at a charity fun day. Her injuries caused by contractor’s negligence. His policy had lapsed so was unable to meet her claim in full.
CoA denied vicarious liability, though the NHS Trust owed a DoC to check the contractor had adequate insurance, they had done enough to discharge their duty. It would be unreasonable to require the occupier to go any further by, for example, checking the specific terms of the policy.
1984 Act, establishing a duty:
In order for a duty to be owed:
1) The occupier is aware of the danger or has reasonable grounds to believe that it exists; and
2) The occupier knows, or has reasonable grounds to believe that someone is, or may come, in the vicinity of the danger.
3) The risk is one against which, in all circumstances of the case, the occupier may reasonably be expected to offer some protection.
Tomlinson v Congleton Borough Council [2003]:
Claimant hit his head on the bottom of a lake while attempting a shallow dive. Paralysed from the neck down. Swimming was forbidden, prominent noticed read: ‘dangerous water: no swimming’. Visitors regularly ignored these and the park rangers. Council knew this and had planned for years to plant vegetation on the ‘beach’ areas to deter people.
The claimant’s status as a lawful visitor to the park was limited to the time before he entered the lake.
HoL denied claim, there was no risk to the claimant due to ‘the state of the premises or anything done or omitted upon the premises’.
‘There was nothing about the mere Brereton Heath which made it any more dangerous than any other stretch of open water in England.’
1984, awareness of (or reasonable grounds to believe in the existence of) danger:
Rhind v Astbury Water Park Ltd [2004]
Claimant suffered serious head injuries after he hit his head on a fibreglass container diving into water in Cheshire to retrieve his football. Container was not visible from the surface as it was lying on the bed, covered in silt. As there were clear noticed near the water saying: ‘Private Property: Strictly No Swimming Allowed’ the claimant was a trespasser.
The defendants had no knowledge, nor reasonable grounds, to believe that the container was hidden beneath the surface of the mere, and so no duty was owed.
