Tort -> Occupiers Liability

The Occupiers Liability Act 1957 applies not only to land and buildings but also to fixed and moveable structures, including any vessel, vehicle or aircraft.

Occupier: any person who has a sufficient degree of control over premises (Wheat v Lacon - landlord and tenant of pub both owed duty of care to guest injured on stairs. However, no breach on the facts).

Visitors – under s.1(2) the occupier owes a duty of care to all lawful visitors. Express or implied permission defined as a lawful visitor i.e. invitees, licensees, people entering under a contract, people with a legal right to enter. Trespassers do not fall within this scope.

Note: a person may be a visitor in one part of premises and not another (Campbell v Shelbourne Hotel).

s.2(2) states that an occupier has a duty of care to ensure that in all circumstance visitors will be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there for. (Simms v Leigh RFC - P injured by hitting concrete wall surrounding rugby field. D not liable as injury foreseeable but so improbable that it was not necessary to guard against it).

Children - An occupier must be prepared for children to be less careful than adults (s.2(3)(a)). Therefore, if an occupier admits children to the premises the child visitor must be reasonably safe.

• Occupiers must not lead children into temptation (the allurement principle (Glasgow Corp v Taylor - 7 year old died after eating poisonous berries in park. D knew of the berries but took no precautions against children).
• However occupiers are reasonably entitled to assume small children are accompanied by an adult (Phipps v Rochester Corp).

Experts – s.2(3)(b) occupiers can expect experts who come on his property to guard against inherent risks. Occupiers may assume professional visitors will guard against risks that are within their professional knowledge (Roles v Nathan). However occupier still owes a duty to professional visitors as seen in Salmon v Seafarer.

An employer may still be liable for failing to provide safe system of work (General Cleaning v Christmas).

Independent Contractors – s.2 (4) states there’s no liability for ‘faulty execution of any work or construction, maintenance or repair by an independent contractor…’ providing

• It was reasonable to entrust the work (Haseldine v Daw).
• A competent contractor was hired.
• If necessary the occupier checked work was carried out properly (Woodward v Mayor of Hastings).

Three key points:

• The standard of care is the same as for negligence as there’s no need to guard against the unforeseeable (Bolton v Stone).
• Duty only exists while the visitor carries out authorised activities.
• The visitor must be kept safe, not premises.

Avoiding liability

Warning Signs: s.2 (4) warning relieves liability if ‘in all circumstances it was enough to enable the visitor to be reasonably safe’. However what is sufficient warning is a question of fact in each case, as in others but in certain circumstances a warning maybe insufficient and a barrier maybe needed (Rae v Mars (UK)).

• If the danger is obvious to all, the occupier can assume the visitor will take care (Staples v West Dorset D.C).

Exclusions: s.2 (1) exclusions are allowed ‘by agreement or otherwise’, so can exclude by a term of the contract or by a communicating notice (Ashdown v Samuel Williams).

• Excluding liability to person entering by a legal right is not possible nor is excluding liability when bound by a contract to admit strangers to a contract.

Defences

Contributory Negligence: It applies to cases where plaintiffs have, through their own negligence, contributed to cause the damages they incurred as a result of defendants negligence.

Volenti: latin for “to a willing person, no injury is done”, this doctrine holds that a person who knowingly and willingly puts himself in a dangerous situation cannot sue for any resulting injuries s2 (5).

• If risk is fully understood (Simms v Leigh RFC).
• Mere knowledge of a risk is insufficient to raise defence (White v Blackmore).
• Where claimant has no choice then there is no consent (Burnett v British Waterways).
• Express warnings of claimant entering at own risks are probably caught by Unfair Contract Terms Act.

Occupiers Liability to Trespassers

Occupiers Liability Act 1984 applies mainly to trespassers.

Traditionally no duties were owed to trespassers except when intentional or recklessly inflicted harm.

Section 1(3) provides that a duty will be owed by the occupier 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; 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.

The duty is to take such care as is reasonable in all the circumstances of the case to see that the non-visitor does not suffer injury on the premises by reason of the danger concerned (s1(4)).

Revill v Newbury - D liable for shooting trespassing burglar through door. A duty of care is owed to trespassers engaged in criminal activities. D used greater violence than was justified in lawful self-defence.

The duty can be discharged by taking steps to warn of the danger concerned, or to discourage persons from incurring the risk (s1(5)) (Westwood v Post Office).