Occupiers Liability Occupiers Liability Occupiers liability generally refers
Occupier’s Liability
Occupier’s Liability Occupiers' liability generally refers to the duty owed by land owners to those who come onto their land. Occupiers' liability is perhaps a distinct form of negligence in that there must be a duty of care and breach of duty, causing damage. The rules of remoteness apply to occupiers liability in the exact same way that they apply to negligence claims. Liability can arise on occupiers for omissions since their relationship gives rise to duty to take action to ensure the reasonable safety of visitors.
Occupier’s Liability The law relating to occupiers' liability originated in common law but is now contained in two major pieces of legislation: Occupiers Liability Act 1957 - which imposes an obligation on occupiers with regard to 'lawful visitors‘ Occupiers Liability Act 1984 - which imposes liability on occupiers with regard to persons other than 'his visitors‘ Different levels of protection are expected under the two pieces of legislation with a higher level of protection afforded to lawful visitors.
Occupier’s Liability Occupiers Both the Occupiers Liability Acts of 1957 and 1984 impose an obligation on occupiers rather than land owners. The question of whether a particular person is an occupier is a question of fact and depends on the degree of control exercised. The test applied is one of 'occupational control' and there may be more than one occupier of the same premises: Wheat v E Lacon & Co Ltd [1966] (manager of pub, rented private quarters out – had O. C) Physical occupation is not a requirement; Harris v Birkenhead Corp [1976](Council liable for house after serving compulsory notice, in control of premises)
Occupier’s Liability Premises OLA 1957 s. 1(3) ‘fixed or movable structure, including any vessel, vehicle and aircraft’ This has included; Ship in dry dock, vehicle, lift, a ladder! Reville v Newbery (1996) Needs to be dangerous conditions on the land or dangerous conduct amounting to dangerous conditions by the occupier (not just a single act that could be done by anyone)(shed, allotment, shot fired…)
Occupier’s Liability Occupiers Liability Act 1957 The Occupiers Liability Act 1957 s. 1(2) imposes a common duty of care on occupiers to lawful visitors. The protected damage under the Occupiers Liability Act 1957 includes death, personal injury and damage to property.
Occupier’s Liability Lawful visitors – Adult visitors Lawful visitors to whom occupiers owe the common duty of care for the purposes of the Occupiers Liability Act of 1957 include: Invitees - S. 1(2) Occupiers Liability Act 1957 - those who have been invited to come onto the land therefore have express permission to be there. Licensees - S. 1(2) Occupiers Liability Act 1957 - those who have express or implied permission to be there for a particular purpose.
Occupier’s Liability Lawful visitors – (cont…) Lawful visitors to whom occupiers owe the common duty of care for the purposes of the Occupiers Liability Act of 1957 include: Those who enter pursuant to a contract - s. 5(1) OLA 1957 - For example paying guests at a hotel or paying visitors to a theatre performance or to see a film at a cinema. Those entering in exercising a right conferred by law - s. 2(6) OLA 1957 - For example a person entering to read the gas or electricity meters.
Task 1:
Occupier’s Liability The common duty of care is set out in s. 2(2) Occupiers Liability Act 1957; S. 2(2) - 'The common duty of care 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’. Laverton v Kiapasha Takeaway Supreme (2002) The Claimant slipped on excess rainwater which had gathered on the floor of the premises. Court of Appeal held that it was not reasonably practicable perfection to expect the owner of the premises concerned to mop up rainwater as it came in. They did not have to make the shop ‘completely safe’
Occupier’s Liability The common duty of care Thus the standard of care varies according to the circumstances. The legislation refers to two particular situations where the standard may vary; S. 2(3)(a) - an occupier must be prepared for children to be less careful than adults…the premises must be reasonably safe for a child of that age S. 2(3)(b) - an occupier may expect that a person in the exercise of his calling will appreciate and guard against any special risks ordinarily incident to it so far as the occupier leave him free to do so
Occupier’s Liability Allurement principle / Liability to children The courts are more likely to imply a license if there is something on the land which is particularly attractive and acts as an allurement to draw people on to the land. Under s. 2(3) The occupier’…must be prepared for children to be less careful than adults…’ and as a result ‘…the premises must be reasonably safe for a child of that age’. Taylor v Glasgow City Council [1922] (7 yr old, poisonous berries, botanical garden) Phipps v Rochester Corporation (1955) (5 yr old, trench, unaccompanied) Devlin J: “He is entitled to assume that normally little children will be accompanied by a responsible person…The responsibility for the safety of little children must rest primarily upon the parents”
Occupier’s Liability S. 2(3)(b) Common calling / carrying out a trade This provision applies where an occupier employs an expert to come on to the premises to undertake work. The expert can be taken to know and safeguard themselves against any dangers that arise from the premises in relation to the calling of the expert. For example; if an occupier engages an electrician, the electrician would be expected to know the dangers inherent in the work they are employed to do.
Occupier’s Liability S. 2(3)(b) Common calling / carrying out a trade This provision applies where an occupier employs an expert to come on to the premises to undertake work. Roles v Nathan [1963] (D not liable, chimney sweeps, carbon monoxide, D advised turn off boiler) Salmon v Seafarer Restaurant [1983] (D liable, fireman, fryer fire) The duty owed to a fireman was not limited to the exceptional risks associated with fighting fire but extended to ordinary risks
Occupier’s Liability Dangers arising from actions undertaken by independent contractors S. 2(4)(b) Occupiers Liability Act 1957 An occupier is not liable for dangers created by independent contractors… IF …the occupier acted reasonably in all the circumstances in entrusting the work to the independent contractor and took reasonable steps to satisfy himself that the work carried out was properly done and the contractor was competent.
Occupier’s Liability Dangers arising from actions undertaken by independent contractors S. 2(4)(b) Occupiers Liability Act 1957 Three requirements to evade liability 1. It was reasonable to have given the work to an indpt contr. Haseldine v Daw & Son Ltd (1941) 2. The contractor must be competent to carry out the task Bottomley v Todmorden Cricket Club (2002) 3. The occupier must check the work has been done properly Woodward v The Mayor of Hastings (1945)
Occupier’s Liability: Limitations/Defences applicable to Occupiers Liability Act 1957 Consent/Volenti non fit injuria - s. 2(5) OLA 1957 - the common duty of care does not impose an obligation on occupiers in respect of risks willingly accepted by the visitor. It appears that there is no need to establish an agreement. The question of whether the risk was willingly accepted is decided by the common law principles Contributory negligence - Damages may be reduced under the Law Reform (Contributory Negligence) Act 1945 where the visitor fails to take reasonable care for their own safety. Warning notices / Exclusion Clauses - s. 2(1) OLA 1957 allows an occupier to extend, restrict, exclude or modify his duty to visitors in so far as he is free to do so.
Occupier’s Liability: Limitations/Defences Warnings Notices Under s. 2(1) It may be possible for an occupier to discharge their duty (complete defence) by giving a warning of the danger. Roles v Nathan [1963](warning re: boiler) However, S. 2(4)(a) Occupiers Liability Act 1957 provides that a warning given to the visitor will not be treated as absolving the occupier of liability unless in all the circumstances it was enough to enable the visitor to be reasonably safe. Rae v Mars (UK) Ltd (1990) (Deep pit, dark shed, warning insufficient) There is no duty to warn against obvious risks; Staples v West Dorset District Council [1995] (wet algae, slipped)
Occupier’s Liability: Limitations/Defences Exlusion Clauses Under s. 2(1) It may be possible for an occupier to discharge their duty (complete defence) by giving a warning of the danger. However, s. 2(1) Unfair Contract Terms Act 1977 ‘A person cannot…restrict his liability resulting from PI or death caused by negligence’ And, s. 65 Consumer Rights Act 2015 ‘A trader cannot by…consumer notice exclude or restrict liability for death or PI resulting from negligence’
Is this a valid warning sign?
Occupier’s Liability Remedies OLA 1957 s. 1(2) Damages for death / PI. s. 1(3) Damages for damage to property
Task 2: Copy (pg 234)
ISAS: Lawful Visitors I – D may be liable for death/injury/damage to property under Occupier’s Liability S – Acc to Occupier’s Liability Act 1957 which imposes an obligation on occupiers with regard to 'lawful visitors’ A– 1. Occupier; 'occupational control' 2. Premises; s. 1(3)(a) land buildings, fixed and movable structures, including any vessel, vehicle or aircraft. 3. Lawful visitors; S. 1(2) invitees, S. 1(2) licencees, s. 5(1) pursuant to contract, s. 2(6) right in law 4. Duty of Care; S. 2(2) - 'The common duty of care 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. ’ S. 2(3)(a) - an occupier must be prepared for children to be less careful than adults (Allurement principle) S. 2(3)(b) - an occupier may expect that a person in the exercise of his calling will appreciate and guard against any special risks ordinarily incident to it Dangers from independent contractor 5. Defences/Limitations; s. 2(5)Volenti non fit injuria, Contributory Neg, Exclusion of liability, Warnings/signs, trespassers, invitees who exceed their permission, person exercising a right of way, S – If all elements satisfied D may be liable for compensation for death, PI s. 1(2) or personal property (s 1(3), so long as no limitations nor defences apply
Occupier’s Liability Occupiers Liability Act 1984 The Occupiers Liability Act 1984 s. 1(1)(a) imposes a duty on occupiers in relation to persons 'other than his visitors‘. This includes trespassers and those who exceed their permission. Whilst it may at first appear harsh to impose a duty on occupiers for those that have come on to their land uninvited and without permission, liability was originally recognised at common law for child trespassers where the occupier was aware of the danger and aware that trespassers, including children would encounter the danger. British Railways Board v Herrington [1972] (electrified rail)
Occupier’s Liability The circumstances giving rise to a duty of care S. 1(3) Occupiers Liability Act 1984 An occupier owes a duty to another (not being his visitor) if: (a) He is aware of a danger or has reasonable grounds to believe that it exists (b) He knows or has reasonable grounds to believe the other is in the vicinity of the danger or may come into the vicinity of the danger (c) The risk is one in which in all the circumstances of the case, he may reasonably be expected to offer the other some protection
Occupier’s Liability If all three of these are present the occupier owes a duty of care to the non-lawful visitor. s. 1(4) - the duty is to take such care as is reasonable in all the circumstances of the case to see that the other does not suffer injury on the premises by reason of the danger concerned. Considerations: 1. Obvious danger 2. Time or day/Year 3. Need not spend lots of money making premises safe from obvious dangers 4. Not liable if no reason to suspect trespasser 5. Not liable if no reason to suspect danger
Occupier’s Liability s. 1(4) - the duty is to take such care as is reasonable in all the circumstances of the case to see that the other does not suffer injury on the premises by reason of the danger concerned. Considerations: 1. Obvious danger Ratcliff v Mc. Connell [1997] (trespassed, outdoor pool, jumped wall, no liability for injuries)
Occupier’s Liability s. 1(4) - the duty is to take such care as is reasonable in all the circumstances of the case to see that the other does not suffer injury on the premises by reason of the danger concerned. Considerations: 1. Obvious danger 2. Time or day/Year Donoghue v Folkestone Properties Ltd [2003] (trespass on slipway harbour, dived into sea, midnight – no liability)
Occupier’s Liability s. 1(4) - the duty is to take such care as is reasonable in all the circumstances of the case to see that the other does not suffer injury on the premises by reason of the danger concerned. Considerations: 1. Obvious danger 2. Time or day/Year 3. Need not spend lots of money making premises safe from obvious dangers Tomlinson v Congleton [2003] (lake, signs, diver ignored)
Occupier’s Liability s. 1(4) - the duty is to take such care as is reasonable in all the circumstances of the case to see that the other does not suffer injury on the premises by reason of the danger concerned. Considerations: 1. Obvious danger 2. Time or day/Year 3. Need not spend lots of money making premises safe from obvious dangers 4. Not liable if no reason to suspect trespasser Higgs v Foster (2004) (PC, investigating a crime, pit)
Occupier’s Liability s. 1(4) - the duty is to take such care as is reasonable in all the circumstances of the case to see that the other does not suffer injury on the premises by reason of the danger concerned. Considerations: 1. Obvious danger 2. Time or day/Year 3. Need not spend lots of money making premises safe from obvious dangers 4. Not liable if no reason to suspect trespasser 5. Not liable if no reason to suspect danger Rhind v Astbury Water Park (2004) (submerged fibreglass, lake, ignored sign)
Occupier’s Liability Child Trespassers Children are treated the same as adults in this type of claim Keown v Coventry Healthcare NHS Trust (2006) (11 yr old, fire escape, no danger in state of premises: boy’s actions, D not liable) Baldaccino v West Wittering (2008) (14 yr old, dived off beacon in low tide, obvious danger, not liable)
Occupier’s Liability Defences Volenti non fit injuria / Consent - s. 1(6) OLA 1984 - no duty of care is owed in respect of risks willingly accepted by the visitor. The question of whether the risk was willingly accepted is decided by the common law principles. Ratcliff v Mc. Connell [1997] (trespassed, outdoor pool, jumped wall, no liability for injuries) Contributory negligence - Damages may be reduced under the Law Reform (Contributory Negligence) Act 1945 where the visitor fails to take reasonable care for their own safety. Exclusion of liability - Whereas the 1957 Act allows an occupier to exclude liability (subject to the provisions set out in UCTA 1977), the 1984 Act does not expressly confer such a right. But a warning notice may be effective if it warns of the dangers in clear terms. Whether this works for a child depends on age and understanding of the child.
Occupier’s Liability Remedies Occupiers Damages s. 1(8) Liability Act 1984 for death / PI. no right for damages to property.
ISAS: Lawful Visitors I – D may be liable for death/personal injury under Occupier’s Liability S – Acc to Occupier’s Liability Act 1984 S. 1(1)(a) imposes a duty on occupiers in relation to persons 'other than his visitors' A – 1. Duty of care to another (not being his visitor); s. 1(3) – if (a) He is aware of a danger or has reasonable grounds to believe that it exists (b) He knows or has reasonable grounds to believe the other is in the vicinity of the danger or may come into the vicinity of the danger (c) The risk is one in which in all the circumstances of the case, he may reasonably be expected to offer the other some protection 2. s. 1(4) - the duty is to take such care as is reasonable in all the circumstances of the case to see that the other does not suffer injury on the premises by reason of the danger concerned. (5 considerations & child trespasser) Defences; s. 1(6) Volenti non fit injuria, Contributory Neg, Exclusion of liability (uncertain as not explicitly mentioned in Act) S – If all elements satisfied D may be liable for compensation, so long as no defence applies
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