Flashcards in Week 3- Occupier's liability Deck (31)
What is the difference between the purposes of the Occupiers liability act 1957 and the 1984 act?
The 1957 act applies to visitors to premises whilst the 1984 act applies to non-visitors, including trespassers.
For the purposes of the 1957 act, what can suffice as being 'occupied'? What qualifies something as being occupied by a person?
The preliminary below sets out who can suffice as an occupier, and its broadness is qualified by the point that it relates to anyone having control over ANY FIXED OR MOVABLE STRUCTURE including any vessel, vehicle or aircraft.
-This is further qualified, following wheat v Lacon, to mean that anyone who has effective control over these structure.
What is the importance with regards to how the damage to the visitor occurs?
What therefore is the duty of premises owners?
-Must be decided whether the damage arises from a danger associated with the premises. The 1957 act sets out ‘occupancy duties’ (concerned with the physical state of the premises) contrasted with ‘activity duties’ (concerned with the activities carried out on the premises).
-ONLY DANGERS ASSOCIATED WITH THE STATE OF THE PREMISES ARE WITHIN THE SCOPE OF THE ACTS- otherwise negligence may apply.
- “Not only the existence, but also the content and extent of such duties (such duties being positive duties to the visitors of premises), would be influenced by—even modelled upon—the ‘common duty of care’ set out in the 1957 Act, which is a duty to take such steps as are reasonable to ensure that the visitor is reasonably safe.”
What does Poppleton v Trustees of Portsmouth Youth activity committee 2008 show about the extent of the duty owed by the property owner?
Facts- the claimant was engaged in the risky activity of using a climbing wall and attempted a very dangerous manoeuvre which was beyond his level of ability.
Significance- the defendant’s premise occupier did not owe any further duty of the care to the claimant and his injuries did not derive from the condition of the premises, instead from the incompetence of the claimant on these premises, engaging in an activity.
-Defendants did not need to warn neither visitors nor trespassers of obvious hazards and in this case the claimant took the risk of an obvious hazard.
What are the protected interests of a claimant under the 1957 act?
The protected interests under the 1957 act is for both personal injury and damage to property, so long as it derives from the state of the premises.
For the purposes of the two acts, who counts as an occupier?
The occupier is he who has effective control over the ‘fixed or movable structure including building, vessel, vehicle or aircraft’.
Facts and significance of Wheat v Lacon 1966?
Facts- the defendant brewers owned a pub and entrusted a manager to run the business, who lived under a service agreement with his wife at the pub (on the first floor). The claimant and her husband were staying as guests of the managers wife, and the husband suffered a fatal fall down the stairs. It was found that a handrail, which was too short, combined with poor lighting, were contributing factors to his fall. It was contended whether the brewers were liable as occupiers.
Significance- the House of lords found that the defendants were occupiers of the first floor of the premises and owed the common duty of care under the 1957 act. However, they had not breached this duty. The defendant brewers, and their managers, could be simultaneous occupiers of the premises, even if they occupied different parts of the premises. In this case, they both occupied the first floor of the pub (which was private) as well as the public portion of the pub as well.
--The duty of care owed was that of “in all circumstances of the case” it is reasonable to see that the visitor will be reasonably safe. The fact that the visitors were in the private portion of the pub meant that the duty of care owed was not the same as if the injury had been suffered in the public part of the pub, where D would be expected to take reasonable care with regards to furnishings, lighting, the floors etc.
What is the extent of the occupiers duty of care?
The above duty, as set out in the 1957 act, is owed to all those who would have been classed either as invitees, or as licensees, at common law.
-“it should also be noted that the duty owed under the 1957 Act is only a duty to keep the visitor safe FOR THE PURPOSES FOR WHICH HE IS INVITED OR PERMITTED by the occupier to be there (section 2(1))”
-Invitees were those who has been expressly invited by the occupier onto the premises, whilst licensees have a general and legal permission to be there, whether that is express or implied.
-The same duty is imposed regardless of invitee or licensee, but obviously only where they act in accordance with the reason for which they are on the premises.
Roles v Nathan 1963 facts and significance?
Facts- The two claimants were brothers who acted as chimney sweepers. The chimneys had become dangerous, and they had been warned by a heating engineer of the risks of their specialist jobs. He had to order everyone out of the building when the levels of carbon monoxide got too high. The brothers became abusive and ignored the orders, returning to the building after being forcibly removed. They were found dead in the basement the next day.
Significance- The defendants had not breached their duty of care, and the dangers were special risks associated with the job. Had the brothers followed the engineer’s advice, they would have been safe.
-The specialist job the claimants were undertaking meant that the occupier was exempt from liability so long as he allowed the claimants to guard against the risks ordinarily associated with the special Job, under s2(4)(a) of the OLA 1957; this provided the defendants with a defence.
-Lord Denning “[The 1957 Act] has been very beneficial. It has rid us of those two unpleasant characters, the invitee and the licensee, who haunted the courts for years, and it has replaced them by the attractive character of the visitor, who has so far given no trouble at all.”
-An invitee was someone invited onto the premises, whilst a licensee was someone who merely had permission to enter the premises, a permission which caused trouble when it was only implied but could also be expressly conferred instead. With both classified as merely visitors, it was easier to apply the 1957 act.
Facts and significance of Tomlinson v Congleton 2003 UKHL with regards to the uncertainty of the purpose of visit under the 1957 act?
Facts- the claimant had broken his neck after diving head-first into a shallow lake, where swimming was not permitted. The claimant’s advisers conceded that he was in fact a trespasser when he dived into the lake, rather than a visitor (which he had been when he entered the property initially but argued that more should have been done to prevent him from swimming. It was decided that this did not matter too much because it was an inherently obviously risky activity. This was at a country park.
Significance- (Lord Hoffmann) Once he entered the lake, the common duty of care was no longer owed under the 1957 act, as he was no longer a visitor. The 1984 act was therefore triggered, and imposed a lesser duty, as to both incidence and scope, than the 1957 act. Parliament should not be able to “force duties upon unwilling hosts” to protect unwelcome trespassers (policy reason; even more so where the trespasser decides to indulge in an inherently risky activity)
- “The 1984 Act provides that even in such cases a duty may exist, based simply upon occupation of land and knowledge or foresight that unauthorised persons may come upon the land or authorised persons may use it for unauthorised purposes. But that duty is rarer and different in quality from the duty which arises from express or implied invitation or permission to come upon the land and use it.” (for visitors)
-The duty owed under the 1984 act is only owed where the occupier has knowledge which ought to alert him to the existence of the danger which the trespasser/ claimant is subject to. Trespassers often derive from visitors.
- “it should also be noted that the duty owed under the 1957 Act is only a duty to keep the visitor safe for the purposes for which he is invited or permitted by the occupier to be there (section 2(1))”
What is the actual duty to take care (common duty of care) under the 1957 act (s(2)(2))?
What positive obligations may exist?
“The duty owed by the occupier is 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 … ’ (section 2(2)).
“This is clearly a negligence-type duty, since it turns on acting reasonably. However, it is also clearly a duty to take steps, and this is obviously capable of including positive elements in the form of obligations to repair, fence, warn, and so on. Equally, it is an ‘objective’ duty, focused on whether the premises are ‘reasonably safe’. The existence of some reasonably foreseeable risk of harm does not show that the premises were not reasonably safe eg some risks are inherent (the risk of a stove being left on in a kitchen; whilst this is reasonably foreseeable, it does not mean that the state of the premises are such that the visitor is not reasonable safe)
Facts and significance of Fairchild v Glenhaven Funeral services 2002 UKHL
Facts- the claimant had worked for a number of employers, all of which had negligently increased his exposure to asbestos, causing him to contract a form of cancer which caused him to die (his wife suing on his behalf). There were joint claimants with similar experiences too. However, due to the nature of asbestos-related cancer, it takes a while (20-50 years) before the cancer develops from the single asbestos fibre, and it was therefore impossible to know from which employer Fairchild developed the illness. Furthermore, the balance of probabilities test could not be satisfied, as on no balance of probabilities was it more likely to be one of the named employer than not. They had all contributed.
Significance- The claim against the employers under the 1957 act failed because the injury has arose not out of the state of the premises but the activities which were carried out on such premises. Illustrating the limited scope and meaning of the 1957 act.
How might warnings discharge the duty of care under the 1957 act, and what is the extent of the duty that warnings are required for?
-An occupier may be able to discharge their duty by issuing relevant and appropriate warnings. This will only be so if the warning is sufficient to keep the visitor safe as far as it is reasonably expected of the occupier in all circumstances; eg a sign which says that a bridge is dangerous should also provide an alternative safe route for the visitor.
-It is a duty to make sure that the visitor is safe, rather than the premises being safe, so a warning must be sufficient for the particular claimant to be made reasonably safe. This may be adjusted for children to be even more clear, unless it can be said that they would be accompanied by an adult.
-Recent cases eg Staples v West Dorset district council 1995 PIQR 439, have shown that adults do not need to be warned of obvious dangers. In this case, the claimants failed in their action after falling on an obviously dangerous algae-covered surface, which was aggravated by exposure to sea water too.
Facts and significance of White v Blackmore 1972?
Facts- Mr white was a race car driver attending a race as a competitor, before returning to watch another race with his family. In the race programme, there were notices which would exclude liability for accidents, however caused. Mr White was standing behind the spectator’s rope when a cars wheel became entangled in the rope, throwing Mr White in the air and killing him. His wife sought to claim damages for negligence and under s2 of the Occupiers liability act 1957.
Significance- The claim was unsuccessful. The defendant’s argument that they had taken reasonable steps to exclude liability for ACCIDENTS and bring it to the claimants attention was accepted. They were entitled to exclude liability for accidents under the OLA 1957, and had sufficiently acted in bringing this to the attention of the spectators.
-The condition of entry was on the ticket.
-This may not necessarily be the case following the Unfair contracts terms act 1977 as such a term of contract would be void under the act.
What is an occupier entitled to do with regards to specialists performing their job at a premises?
-An occupier can expect a specialist to guard against risks ordinarily associated with his job. This is provided the occupier ‘leaves him free to do so’. It does not follow that no duty at all is owed in respect of ordinary risks of specialised work, however. “Section 2(3)(b) only provides that the occupier may expect the specialist to exercise a level of care appropriate to his or her calling. If the visitor exercises such skill and care and the risk nevertheless remains, then this subsection gives no reason to deny compensation to the injured party.” Ie the occupier is still liable for this negligence-like breach of duty, as any reasonable and ordinary person, not just the specialist, will be exposed to this unreasonable and unsafe thing.
What does the 1957 act say with regards to children? specifically in relation to guardians or lack thereof?
-Section 2(3)(a) shows that occupiers must be prepared for children to be less careful than adults with regards to their own safety.
- “The result of this was that if the child was so young that a degree of supervision by an adult ought to be expected, then the only required warnings are those that would be needed to alert a guardian to the danger. The relevant danger in Phipps (a trench in the ground) being obvious to an adult, there was no breach of the occupier’s duty. This was not a case where fencing the entire area was regarded as feasible or necessary, and this distinguishes it from cases where children wander onto the railway, for example.”
-Therefore, where there is no reasonable expectation that a child will enter a premise’s accompanied, the occupier would be expected to provide warnings which can be interpreted by children, to keep them reasonably safe for the purposes of their presence on the property, because no adult is expected to be there to guard them from risks.
What are occupiers entitled to expect from their visitors under the 1957 act?
Duty of visitors to be careful in general:
-Apart from specific references to children and experts, there is also reference to the “degree of care and of want of care” which would ordinarily be looked for in such visitors. Visitors must have regard for their own duty to look after themselves and act reasonably, foreseeing any risks which they self-induce eg falling downstairs in a pub after consuming great amounts of alcohol. The stairs themselves do not represent a sufficient risk which would dictate that the premises make visitors reasonably unsafe.
What can occupiers be expected to be protected against with regards to dangers created by independent contractors on their premises?
-According to s 2(4)(b) of the 1957 act, an occupier is not liable ‘without more’ for dangers created by independent contracts in the execution of ‘any work of construction, maintenance or repair’, and this has been extended/ interpreted to include demolition work, following Ferguson v Welsh.
Facts and significance of Ferguson v Welsh 1987 regarding the extent of liability for occupiers and 'special skill workers'?
Facts- a district council contracted with a company (s) to carry out demolition work on their premises. The council prohibited subcontracting of the work without permission. S nevertheless subcontracted the work to two brothers (w) who adopted unsafe work practices. The claimant was offered a job by the W brothers, and while assisting with the demolition work was seriously injured. The appeal to the HL concerned the possible liability of the council as the occupiers, under which they should owe the common duty of care, as occupiers of the premises.
Significance- The HL concluded that the council had not breached their duty of care under the 1957 act, although Welsh was held to be a visitor notwithstanding the fact that the original contractors were not contractually permitted to subcontract work.
Conversely, Lord Keith suggested that if an occupier has ‘reasonable grounds to suspect’ unsafe work practices, they may have a duty to supervise the contractor’s activities. Other Lords disagreed with this, including Lord Oliver who said “It is possible to envisage circumstances in which an occupier of property 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 than of an occupier.” Lord Oliver along with Lord Goff felt that Lord Keith’s comments would impose extensive and unjustifiable duties on occupiers.
What is the general point/ extent of the UCTA 1977?
-The act applies where a visitor enters in the course of the business (whether his own or another)
-The result of this act is that liability is extended under the 1957 act to include liability even when there is a contract term or a notice given to visitors in an attempt to exclude themselves from liability where there is personal injury or death resulting from negligence. This is however confined to business liability, where a premises’ is used for the furtherance of a business. If people enter for educational or recreational use, there is no business liability unless the business revolves around providing recreational or educational experience.
What is the reasonableness requirement under the UCTA 1977?
The “reasonableness” test
(1) In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act … is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.
What is the extent of liability under the 1957 following the UCTA 1977?
The result of this act is that liability is extended under the 1957 act to include liability even when there is a contract term or a notice giving to visitors in an attempt to exclude themselves from liability where there is personal injury or death resulting from negligence. This is however confined to business liability, where a premises’ is used for the furtherance of a business. If people enter for educational or recreational use, there is no business liability unless the business revolves around providing recreational or educational experience.
- The UCTA 1977 is only applicable where there is a visitor and that visitor is not a consumer. In addition, the occupier must be occupying a business premises. There need not be an actual business relationship between the occupier and the claimant, so long as the consumer is there in the furtherance of a trade, craft or profession.
How does the protection of the plaintiff differ under the 1957 act, when either the UCTA 1977 or CRA 2015 is applicable?
As a result of the Consumer Rights act 2015, the above statute (UCTA 1977) will only be relevant with regards to occupier’s liability where the person enters in the exercise of a trade, craft of profession (business). Otherwise, the provisions in the following Consumer Rights act 2015 will apply, eg for a consumer of the business, such as a customer.
What is the general operation of the UCTA 1977?
Under UCTA 1977, in cases of business liability, it is not possible to exclude or restrict liability for personal injury or death (section 2(1)). In the case of other damage (and property damage is covered by the 1957 Act), any attempt to exclude or restrict liability is subject to the test for reasonableness set out in section 11.
What is the general operation of the CRA 2015?
Under CRA 2015, similar provisions apply to prevent exclusion of liability for personal injury or death where a trader is dealing with, or giving a notice to, a consumer (section 65). In the case of other damage, the test for fairness (operates in the same way as the reasonableness test under UCTA) set out in section 62 will apply. The reasonableness being how reasonable the defendants attempts to restrict their liability is, eg with reference to the obviousness of their message to consumers, the mode by which they do so etc.
-As mentioned, the visitor must be a consumer of the occupiers' business, whilst they may not be under the UCTA.
What duty does an occupier owe to non-visitors as a result of the 1984 act? in what situations do these obligations arise?
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.
What is the duty owed by an occupier under the 1984 act expected to protect the non-visitor from and how can it be discharged?
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.
Facts and significance of Herrington v British railway 1972?
Facts- A six-year-old boy was electrocuted and suffered severe burns when he wandered from a park onto a live railway line, which was surrounded by a fence, although part of it had been pushed down and created a gap often used as a short cut. The railway board was aware of the gap for several months prior but did nothing to fix it.
Significance- A duty was owed by D to the claimant, departing from previous authority, and despite the fact that the child was a trespasser on the railway line, the defendants were negligent and owed a duty of care to the trespasser. His presence on the railway line was reasonably foreseeable and the railway board was aware of the broken fence. This case showed that a duty of care was owed to trespassers in certain circumstances as well, but it was not clear what this duty of care was until the enactment of the 1984 act.
Why is the duty to non-visitors under the 1984 act said to be less broad than the duty owed under the 1957 act?
What type of damage/ injury is the 1984 protective against?
- The duty is understood to be a lesser duty than that owed under the 1957 act, and not every non-visitor is owed a duty on every occasion. S1(3) sets out whether a duty of care is owed in the 1984 act, and there is no concurrent provision in the 1957 act, as this is always owed.
-The duty does not arise if D is unaware of the danger or has no reason to believe that it exists. This is further extended because no duty exists if D has no belief or reason to believe that the non-visitor is in or likely to come into the vicinity of the danger. This is subjective and relies on the knowledge of D. Where there is no knowledge of hidden dangers, there is no positive duty under the 1984 act to check for such dangers in relation to non-visitors, but there is a positive duty under the 1957 act for legal visitors, as it would be expected that D would undertake a risk assessment to make sure that there were no hidden dangers and the premises was reasonably safe, especially as they expect visitors to enter.
-Only applies to the protection of personal injuries
-In addition, the duty will only be owed if the risk is one against which the occupier may reasonably be expected to offer the non-visitor protection against. This will be adjusted based on the individual trespasser; an adult would be expected to take more care than a child and be more adverted to potential risks and take reasonable care of themselves, and the occupier will be judged subjectively, with regards to what he could reasonably be expected to do to guard against the risk, with reference to his personal circumstances eg experience, money etc.