Occupiers Liability

Occupiers liability

a branch of negligence developed by statute where occupiers owe a duty to people who come onto their premises. There are two key statutes:

• The Occupiers Liability act 1957 applies to lawful visitors

• The Occupiers Liability act 1984 applies to trespassers

Occupier definition

The is no statutory definition of occupier so the test for deciding whether a person is the occupier is found in case law. The key concept is control, although physical occupation isn’t necessary (Harris v Birkenhead)

Wheat v Lacon

The manager of a pub was an occupier because he had control of the premises. He lived with his wife in the pub but was not the owner of the premises

Bailey v Armes

Neither of the parents who owned the flat nor the supermarket had a sufficient degree of control over the roof areas to be occupiers

Premises

Broadly defined in s.1(2) and includes land, buildings, houses, as well as vehicles and fixed or moveable structures such as lifts, ladders and bouncy castles

Visitor or tresspasser

• A lawful visitor is someone who has express or implied permission to enter the premises, and those with a contractual or legal right to enter (OLA 1957 applies)

• A trespasser is usually a person who has no permission or authority to be on the occupiers premises, or someone who exceeds permission (OLA 1984 applies)

Geary v Wetherspoon

C attempted to slide down a banister of a pub staircase and fell injuring herself. There was no liability under either act as “duty of care will only cover dangers due to the state of the premises”

Liability to lawful visitors

Section 2(2) of the OLA 1957 states “to take such care as in all the circumstances is reasonable to keep the visitor reasonably safe for the purpose for which they are invited to be there”

Laverton v Kiapasha takeaway

A customer slipped on a takeaway floor after the rain. The owners had fitted slip resistant tiles and mopped regularly. The owners had taken reasonable care to ensure their customers were safe. there is no duty to keep visitors completely safe.

Rochester cathedral v Debell

Claimant tripped due to a minor defect in a bollard in the pavement. There is no duty to maintain completely safe premises, the court recognises that accidents do occur and Visitors must care for their own safety as well

Cole v Davis-Gilbert

A duty owed cannot last indefinitely. C trapped her foot in a hole left from a village fete 2 years prior

Child visitors

S.2(3)(a) OLA 1957 provides that an occupier must be prepared for children to be less careful than adults (Glasgow corp v Taylor) and (Perry v Butlins)

Jolley v Sutton LBC

A 14 year old boy and his friend found an abandoned boat on a council estate that eventually fell on them whilst working on it. The court found the council breaching their duty of care, as it would be attractive to children.

Phipps v Rochester

the claimant was a 5 year old who was injured after falling down a trench dug on an open piece of ground. The fault lay with the parents not the council as the child was so young

Bourne Leisure v Marsden

2 year old child drowned when he evaded attention of parents, and the fence was not high enough. Sometimes accidents occur and there was no liability from anyone

Professional visitors

S.2(3)(b) states An occupier may expect that a person in the exercise of his trade will appreciate and guard against any special risks which they ought to know about through their work

Roles v Nathan

Two chimney sweeps died from inhaling poisonous fumes, despite being warned about the danger. The claim failed because they should have been familiar with the risk due to their job

Defences to a claim by a lawful visitor

An occupier may use the following defences to a claim brought under the 1957 OLA

• Independent contractors

• Warning notices

• exclusion causes

• Contributory Negligence

• Consent (Volenti)

Independent contractors

where visitor is injured due to a danger created by an independent contractor, there is a defence under S.2(4)(b) OLA 1957, provided 3 conditions

• It was reasonable to hire a contractor.

• reasonable precautions were taken to ensure the contractor was competent.

• If the nature of the works allows, reasonable checks were taken to inspect the work.

Haseldine v Daw

The claimant was killed when a lift plunged to the bottom of a shaft after being negligently repaired by a contractor. The court decided the occupier was not liable as it was reasonable to hire a contractor.

Bottomley v Todmorden Cricket Club

A guest was injured during a firework display. The club was liable because they failed to exercise reasonable care to choose safe and competent contractors

Woodward v Mayor of Hastings

A child was injured on school steps that were left icy after workmen had cleared the snow off them earlier. The occupiers were liable as they failed to reasonably check the quality of the work

Warning notices

S.2(4)(a) OLA 1957 provides that the occupiers liability is discharged if he or she gives effective warning of the danger. The warning must be sufficient to enable the visitor to be reasonably safe

Rae v Marrs

The claimant entered the door of an unlit shed and fell into a deep pit just before he had a chance to switch his torch on. The warning sign was not sufficient to keep visitors safe because it could not be seen.

Staples v West Dorset

The claimant slipped on algae covered rocks at the seaside. there was no need for a warning sign as the danger was so obvious a visitor should have been aware

Liability to trespassers

The OLA 1984 applies to trespassers. A trespasser who suffers injury due to the state of D’s premises may be able to claim for personal injury (but not property S.1(8). In Siddorn v Patel the danger arose due to C’s dancing on a roof rather than the condition of the premises

Duty of care to trespassers

A duty will only be owed under S.1(3) OLA 1984 if:

• (A) they are aware of the danger or has reasonable grounds to believe it exists

• (B) They know or has reasonable grounds to believe that the trespasser is in the vicinity of the danger

• (C) The risk is one which, in all the circumstances, they may be reasonably expected to offer the other some protection

Rhind v Astbury

As the occupier did not know o a submerged fibreglass container resting on the bottom of a lake on its premises, no duty was owed to a trespasser who injured himself jumping into the lake S.1(3)(a)

Higgs v Foster

The claim failed in this case because the occupier had no reason to suspect that the trespasser would come into the vicinity of the danger S.1(3)(b)

Donoghue v Folkestone properties

The claimant was injured when he dived into a harbour in the middle of a winters night. the occupier did not owe a duty as they would not expect that a trespasser might be present or jump into the harbour at that time of day or year

Tomlinson v Congleton

The claimant was injured diving into a lake after ignoring a sign that said dangerous water, no swimming. There was no duty owed under S.1(3)(C) as it wouldn’t be reasonable to offer protection against a natural feature of the lake.

Standard of care OLA 1984

the standard of care under S.1(4) OLA 1984 is

“to take such care as in all the circumstances is reasonable to see that the trespasser does not suffer injury on the premises by reason of the danger concerned”

Ratcliff v McConnell

A 19 year old student climbed over a locked gate after dark and dived into an outdoor swimming pool. he was seriously injured, but the court held there was no liability as there was an obvious danger.

Keown v Coventry NHS trust

an 11 year old boy climbed a fire escape to show off and was badly injured when falling. the out decided that the occupier owed no duty as the accident happened through his own dangerous behaviour

Defences to trespasser claims

• Warning notices, it would have to make the danger clear (Westwood v post office)

• Contributory negligence

• Consent (Volenti)