Occupier's Liability
Occupier's liability cases
- Created by: Laura
- Created on: 13-06-11 09:02
Occupier's Liability
Occupier's Liability
Act 1957
Who is the occupier?
Occupier's Liability
The 1957 Act covers lawful visitors.
Occupier is determined in Wheat v E Lacon & Co
A manager of pub given right to let out rooms & paying guest fell on unlit stairs. HL held both manager and employees could be occupiers.
So there can be more than one occupier - gives C greater choice of who to bring action against
Collier v Anglican Water Authority
A promenade formed part of sea defences for which water authority responsible for. Local authority owned land & repsonsible for cleaning it. When C injured due to disrepair, water authority liable rather than local authority.
Occupation not reliant on ownership, having control over premises is sufficient
Occupier's Liability
Definition of
Premises
Occupier's Liability
s1(3)(a) - any fixed or moveable structure includign any vessel, vehicle and aircraft
Common law definitions:
London Graving Dock v Horton - ships in a dry dock
Hartwell v Grayson - vehicles
Fosbroke-Hobbs v Airwork Ltd - aircraft
Haseldine v Daw & Son - lifts
Wheeler v Copas - a ladder
Occupier's Liability
Liability to
Lawful Visitors
Occupier's Liability
Under s1(2) lawful visitors include:
Invitees - people who have permission to enter AND whose entry is in material interest of the occupier e.g. friends on social call, postman
Licensees - people whose entry is of material interst of occupier e.g. customers
Implied License - as with licensees but need to prove conduct of occupier granted license, can also be created under contractual agreement e.g. painter (terms of contract determine extent of duty)
Legal Right to Enter - don't require permission e.g. meter reader, police officers
Occupier's Liability
Duty not
owed to...
Occupier's Liability
No duty owed under 1957 Act to trespassers OR:
Those using a private right of way
Those entering under an access agreement
Those using a public right of way (excluded by both Acts)
Occupier's Liability
Scope of
Liability
Occupier's Liability
s2(1) - occupier owes same duty to all visitors except insofar as he is free to do so and does extend, restrict, modify or exclude his duty to any visitors by agreement or otherwise
s2(2) - duty is to take such care as in all circumstances to what is reasonable to see that the visitor will be reasonably safe for the purpose of their visit
Standard of care is of the reasonable man - occupier merely obliged to guard against reasonably forseeable
Duty under 1957 Act only applies as long as visitor is carrying out activities authorised within terms of visit, if not they become trespasser
Duty is to keep visitor safe not maintain safe premises
Occupier's Liability
Scope of
Liability
Occupier's Liability
Fryer v Pearson
Family visitor injued by needle when kneeling on floor. Court held the occupiers had not breached duty as there was nothing to suggest they knew the needle was on the floor or had created the danger.
Ward v Tesco Stores
A customer slipped on spilled yoghurt. Court held that greater duty is owed by a shopkeeper to customers.
Occupier's Liability
Liability to
Children
Occupier's Liability
Under s2(3) the occupier must be prepared for children to be less careful than adults and so the premises must be reasonably safe for a child of that age
AO2 - the standard of care is measured subjectively for children
Moloney v Lambeth
4 year old fell through gap in railings guarding a stairwell and was injured. An adult couldn't have fallen through the gap. The occupier was liable as the premises must be safe for children.
Children do not appreciate risks as adults do.
Glasgow Corporation v Taylor
A 7 year old ate poisonous berries and died. The shrub was not fenced off in anyway - the occupier should have expected that a young child might be attracted to the berries and so was liable.
Occupier's Liability
Liability to
Children
Occupier's Liability
The existance of an allurement on its own is not sufficient grounds for liability
Liddle v Yorkshire CC
A child was injured jumping off a soil bank whilst showing off to his friend. D was not liable since the child had been warned away on numerous previous occasions
If danger is not forseeable, there will be no liability
Jolley v London Borough of Sutton
Children regularly played in an abandoned boat. When 2 young boys jacked the boat up to repair it, the boat fell on one injuring him. CA held that whilst the boat was an obvious allurement, the action taken by the boys was unforseeable and so there was no liability. HL reversed this stating that the broad description of the risk as being that children would 'meddle with the boat at some risk of physical injury'
Occupier's Liability
Liability to
Children
Occupier's Liability
Courts will sometimes take the view that very young children should be supervised by their parents/an adult, in which case the occupier will not be liable.
Phillips v Rochester
A 5 year old child was injured when it fell down a trench dug by D where the child frequently played. D was not liable as the court concluded that the parents should have had the child under proper control.
Occupier's Liability
People Carrying
out a Trade
Occupier's Liability
Under s2(3)(b) the occupier is entitled to expect tradesmen to guard against risks they should know about, and won't be liable if they fail to do so.
Roles v Nathan
CA refused to impose liability on occupiers when chimney sweeps died after inhaling carbon monoxide fumes. The sweeps should have accepted advice of occupiers to complete work with boilers off.
However, this depends on whether the normal safeguards could have averted the loss or injury
Salmon v Seafarers Restaurants
Owners of a chip shop liable for injuries to fireman which were unavoidable due to character of the fire.
Occupier's Liability
Liability for
Independant
Contractors
Occupier's Liability
Under s2(4) the occupier is not liable for any damage caused by danger due to faulty execution of any work or construction, maintenance or repair by an independant contractor.
Reputable contractors will be covered by own insurance so c will still get compensation.
3 requirements:
Must be reasonable for occupier to have entrusted contractor (Haseldine)
Contractor hired must be competent to carry out task (Ferguson v Welsh)
If possible, occupier must check work - the more technical/expert the work, the less reasonable it is to impose the obligation (Woodward v Hastings)
Occupier's Liability
Liability for
Independant
Contractors
Occupier's Liability
Haseldine v Daw & Sons
Occupier not liable for negligent repair of lift - highly specialist skill
Ferguson v Welsh
Demolition contractors hired by local authority employed C. When he was injured due to unsafe working systems, the local authority was liable.
Woodward v Hastings
Occupiers liable when child was injured on school steps which were negligently left icy after cleaning off snow. Danger should have been obvious to occupiers.
Occupier's Liability
Liability for
Independant
Contractors
Occupier's Liability
Occupier has a duty to ensure the contractor is insured so he may stand the loss if found liable.
Gwilliam v West Hertfordshire NHS Trust
Trsust hired splat wall from contractors for fund-raising and C was injured because it was negligently assembled. Trust has insurance that ran out 4 days before. Court held there was a duty to check insurance.
Obligation may not apply where there are other means of assessing the independant contractors competence.
Naylor v Payling
C negligently thrown out of nightclub by bouncer and injured. C argued club failed to check whether independant contractor who hired bounce had insurance but CA held that the club had complied with a local scheme supported by local authority and police for whether bouncers suitable for work.
Occupier's Liability
Avoiding
Liability
Occupier's Liability
S2(4)a - Warnings - will remove liability where in all circumstances it was enough to enable the visitor to be reasonably safe. What is sufficient is decided in each case.
Rae v Mars
A warning was ineffective in respect of a deep pit inside the entrance of a dark shed, so the occupier was liable.
Beaton v Devon CC
C injured when riding bike through tunnel which was well lit and in good condition with 2 gullies that were well known running through it. The court held the occupier had done everything practical to keep the visitor safe.
Occupier's Liability
Avoiding
Liability
Occupier's Liability
S2(1) - Exclusion Clauses - occupier has the right to exclude liability 'by agreement or otherwise'
Ashdown v Samuel William & Sons
C was injured by negligent shunting of railway trucks while on the occupier's land and was unable to recover for injuries sustained in the shunting yard because notices excluding liability were sufficiently brough to her attention and she wasn o more than a contractual licensee when she entered.
Use of exclusion clauses subject to restrictions including:
- unavailable where persons entering under legal right
- probably fail against children who may not be able to fully understand
- Won't apply in the case of strangers
Occupier's Liability
Avoiding
Liability
Occupier's Liability
General Defences
Two possibilities: contributory negligence & volenti non fit injuria (consent)
Risk must be fully understood by visitor - Simms v Leigh RFC
No liability to rugby player when injury was sustained withing normal game rules
Mere knowledge of risk insufficient - White v Blackmore
General knowledge that 'Jalopy Racing' was dangerous didn't mean c had accepted inadequate safety arrangements.
If c had no choice, their consent cannot be used as defence - Burnett v British Waterways
C entering D's dry dock on a barge had no choice but to be there, so consent was unavailable.
Occupier's Liability
Liability
for Trespassers
Occupier's Liability
Occupier's Liability Act 1984 introduced to provide limited duty of care towards trespassers
Bird v Holbreck
Whilst this case didn't create any duty to protect a trespasser, it finally outlawed the use of mantraps
An occupier is still entitled to act reasonably to protect their property
Clayton v Deane
This case accepted an occupier's entitlement to use reasonabel deterrents to keep trespassers out - in this case broken glass on top of a wall, as long as it was reasonably visible.
Occupier's Liability
Liability for
Trespassers
Occupier's Liability
Common law could be particularly harsh on child trespassers
Addie v Dumbreck
Children frequently played near dangerous machinery and when one was injured there was no liability since he was a trespasser
The law has since changed to take into account the difficulties in getting children to appreciate danger.
BRB v Herrington
6 year old badly burnt on electrified railway. HL overruled Addie to establish a limited duty owed when occupier knew of danger and likelihood of trespass.
Occupier's Liability
Liability for
Trespassers
Occupier's Liability
The occupier will only owe a duty under s1(3) if they
a) are aware of the danger or have reasonable grounds to believe it exists
b) knows or believes the other is in the vicinity of the danger
c) the risk is one against which he may be expected to offer some protection
Tomlinson v Congleton Borough Council
Warning signs prohibited swimming/diving in a lake. C dived in and suffered paralysis. In the first instance the council was liable BUT in CA the council were not liable as the injury was not due to state of premises.
Occupier's Liability
Liability for
Trespassers
Occupier's Liability
Rhind v Astubury Water Park
C ignored notice saying 'Private Property, Strictly No Swimming' and was injured by objects below surface when he jumped in. Occupier had no reason to know of the objects so there was no liability.
Westwood v Post Office
A notice saying 'Only Authorised Attendant Permitted' placed on door of motor room was held to be sufficient warning for an intelligent adult.
Ratcliffe v McConnell
A warning notice was placed at shallow end of pool warning against diving and the pool was always locked after hours. C knew the entry was prohibited and was a trespasser. Claim unsuccessful as occupiers had done everything reasonable to prevent trespassers and injurty due to own reckless actions.
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