Tort Law: Occupiers Liability

OLA 1957: What is the definition of an Occupier under Lord Denning?

An occupier has “a sufficient degree of occupational control” which can be proportionate (Wheat V E Lacon)

OLA 1957:What is the case that states Legal Ownership can constitute control?

Harris V Birkenhead Corporation

OLA 1957:What is the case that states there is a possibility of no control?

Bailey V Armes

OLA 1957:What is the definition of a Premises?

Occupiers Liability Act 1957 (S1(3)(a))

“any fixed or moveable structure”

OLA 1957:What are the types of lawful visitors?

Invitees

Licences (express/implied)

Contractual Permissions

Statutory Rights of Entry

OLA 1957:What is the definition of an invitee?

A person who has been invited to enter premises and who have expressed permission to be there

OLA 1957:What is an expressed licence?

Person who have expressed or implied permission to be on the premises for a particular period or purpose

OLA 1957:What is an implied licence?

Repeated use by trespassers which the D does not stop or take any action to stop when they’re aware of it (Lowery V Walker)

OLA 1957:What is a contractual permission?

Those who have contractual permission to be on premises (ticket)

OLA 1957:What is a Statutory Rights of Entry?

Those given a statutory right of entry, such as metre readers or police officers exercising a warrant

OLA 1957:What does it state about lawful visitors exceeding their permission?

If a lawful visitor exceeds the permission they have for being on the premises, they may become a trespasser

(The Calgarth)

OLA 1957:What does it say under S2(2) OLA 1957 about keeping the visitor reasonable safe in the circumstances?

Keep the visitor reasonably safe in the circumstances, NOT PREMISES

OLA 1957:What is does it state about reasonable safety in Laverton V Kipasha Takeaway Supreme?

Reasonable safety is not complete safety (Slip resistant floor)

OLA 1957:What does it say about Slip, trips and falls in Dean and Chapter of Rochester Cathedral V Debell?

Slip, trips and falls do not mean it was not reasonable safe even if minor defects could cause foreseeable chance of an accident or an injury

OLA 1957:Where does it state that the duty is not indefinite and cannot be claimed for pure accidents?

(Cole v Davies- Gilbert, The Royal British Legion and Others)

OLA 1957:What does it state about Children under S2(3)(a) 1957 OLA 1957?

Held to a higher standard of care- subjective to the age of the child

OLA 1957: What is the case that states you must guard against allurements and what are they?

Allurements are harmful things that may attract a child (ie berries)
(Glasgow Corporation V Taylor)

OLA 1957: What are expected of parents to protect their child?

Parents are expected to reasonably safeguard against risks- i.e, building works

(Phipps V Rochester Corporation)

OLA 1957: What does it state about the harm under the duty of care for children?

Harm must be foreseeable, but the exact cause of harm need not to be

(Boat falling on you- Jolley V London Borough of Sutton)

OLA 1957: What case states that workers must guard against risk lined to their job?

(s2(3)(b): Roles v Nathan (Carbon Monoxide Chimney)

OLA 1957: What does it state about risks not incidental to their work under workers duty of care?

Risks not incidental to their work are not protected (Ogwo V Taylor- Fire fighter injured by something incidental)

OLA 1957:What does it state about obligations in respects of risks under workers duty of care?

OLA does not impose an obligation in respect of risks willingly accepted by their visitors (S2(5) OLA 1957)

OLA 1957: What does it state about passing liability onto an independent contractor?

Can pass liability for an injured visitors to a negligent contractor providing three conditions are met (S2(3)(B) OLA 1957)

OLA 1957: What is the first condition which must be satisfied to pass liability onto the contractor?

Reasonable to subcontract the work (more complex=more reasonable)

Hazeldine V Daw & Son Ltd (Lifts)

OLA 1957: What is the second condition which must be satisfied to pass liability onto the contractor?

The Occupier checked competence of the contractor (Insurance/references)

Bottomley V Todmorden Cricket Club

OLA 1957: What is the third condition which must be satisfied to pass liability onto the contractor?

Occupier checked completion (Less competent, contractor, more need for experts)

Woodward V Mayor of Hastings

OLA 1957: What does it mean if all the conditions are met under the Independent Contractor?

If all conditions met, occupier has a defence- C claims from contractor

OLA 1957: What does it state about an occupiers duty to supervise?

Unsafe system of work did not mean occupier was liable- Occupier could not be reasonably expected to supervise

OLA 1957: What are exclusion clauses for residential occupiers?

Residential Occupiers are able to amend or exclude liability by providing oral/written warnings S2(1) OLA 1957

OLA 1957: Can traders (businesses) restrict liability?

Cant restrict liability for death or personal injury from negligence

(S65 Consumer Rights Act 2015)

OLA 1957: Can a warning notice act as a defence, if so in what circumstances?

A warning notice may act as a defence providing “In all circumstances it kept C reasonably safe”

S(2)(4)(a)) OLA 1957

OLA 1957: What is the condition if the premises is extremely dangerous under warning notices?

If the premises is extremely dangerous, the visitor should be given specific notice

(Rae V Mars UK Ltd)

OLA 1957: What does it state about obvious dangers under warning notices?

Need not warn against obvious dangers

Darby V National Trust

OLA 1957: What are the remedies under Occupiers Liability for lawful visitors?

Claimant is able to claim for personal injury and property damage

OLA 1957: What are the relevant defences for Occupiers Liability?

• Volenti

• Contributory Negligence

• Exclusion Clauses (not apply for 1984)

• Warning Notices

OLA 1957: Why is it fair that lawful visitors must be kept reasonably safe?

To be a lawful visitor the claimant, must be an invitee, have a contractual right, a licence or a statutory right of entry

OLA 1957: Where was it seen that lawful visitors must be kept reasonably safe?

Common Law definition of lawful visitors

OLA 1957: Why is it fair that lawful visitors must be kept reasonably safe?

The lawful visitor would not be on the land without the permission of the occupier and therefore it is reasonable for the law to impose a duty on the occupier to keep the visitor reasonably safe. This is especially the case with children and allurements (Glasgow Corporation V Taylor) as children cannot be expected to mitigate the risk themselves

OLA 1957: However what type of test is reasonable safety?

An objective test, this can make it impossible for some occupiers to meet this duty. For example, elderly people or those with cognitive difficulties may not be able to keep their properties reasonably safe for some lawful visitors such as postman.

OLA 1957: How is it an advantage if the courts have respected fault by restricting the definition of “reasonable”?

Emphasis is put on the claimant to ensure their own personal safety

OLA 1957:What is the case for where emphasis is put on the claimant to ensure their own personal safety?

Laverton V Kapisha Takeaway

OLA 1957: Why is it an advantage that the courts have restricted fault?

The fact that reasonable safety does not mean “complete safety” means that claimants are expected to protect themselves and prevents the occupier having to go to unreasonable expense to prevent every possible risk. This also helps to prevent compensation culture- by limiting claims

OLA 1957: However, what can it be argued that this has caused some degree of for occupiers and claimants?

It could be argued that this has caused some degree of uncertainty for occupiers and claimants. As the occupier does not have to ensure complete safety of the visitor, but reasonable safety; where this line is to be drawn is not always certain in fringe cases

OLA 1957: How does the establishment of occupational control respects the principle of fault which is fair?

A defendant is only liable to the extent to which they control the property

OLA 1957: What is the case which shows that a defendant is only liable to the extent to which they control the property?

Wheat V E. Lacon

OLA 1957: Why is it an advantage that a defendant is only liable to the extent to which they control the property?

The fact there can be more than one defendant, based on who has the most control, means those who are most at fault are held most accountable; it also enables a better allocation of loss as those with the highest level of control are more likely to have insurance or capital to pay for the damages- ensuring restitution (a key aim of tort law)

OLA 1957: However, what can the focus on occupational control lead to?

Unfairness where no one party can be said to have control. For example, in Balley V Armes no party was deemed to have occupational control and therefore no damages were paid despite the injury suffered by the claimant

OLA 1957: What does the balance between parental and occupiers responsibility not being clear?

This creates uncertainty in the law and makes it harder for lawyers to advise clients

OLA 1957: What is the case which shows parental responsibility and occupiers responsibility?

Glasgow Corporation V Taylor and Phipps V Rochester

OLA 1957: What may it lead to if the courts have made clear that children should be protected from allurements, theyve also indicated that parents are expected to assist in keeping their children safe. Its not clear where the occupiers duty ends and a parents starts?

Children are more accident prone which may lead to occupiers being advised to put in more protective measures than necessary, at greater expense, than they need to- which is a poor allocation of capital. Equally, its unfair to hold children are at fault for the failings of their parents

OLA 1957: However, whilst there is uncertainty in some instances what can it be argued to be?

Common sense. For example, in Phipps the children were playing on a building site and so its obvious that parents should prevent their children from playing in such places

OLA 1984: Historically was there a duty of care owed to unlawful visitors (Trespassers) if so where and when did it change?

Historically no duty of care : Addie V Dumbreck but changed: British Railway Board V Herrington to ‘a duty of common humanity’

OLA 1984: What is the definition of a trespasser?

A trespasser is a person who either has no permission or has gone beyond permission

S1(3) OLA 1984

Calgarth

OLA 1984: What does it state about occupiers owing a duty to trespassers?

Occupiers owe a duty to trespassers where a danger on their premises causes injury

S1(1)a OLA 1984

OLA 1984: How many conditions must an occupier be aware of in order for a duty arise?

There are three conditions an occupier must be aware of for a duty to arise

S1(3) OLA 1984

OLA 1984: What is the first condition which an occupier must be aware of for a duty to arise for a trespasser?

Occupier knows of the dangers or has reasonable grounds to believe it exists

OLA 1984: What is the second condition which an occupier must be aware of for a duty to arise for a trespasser?

Occupier knows, or has reasonable grounds, to believe the other person sis in the vicinity or that they may come into the vicinity

OLA 1984: What is the third condition which an occupier must be aware of for a duty to arise for a trespasser?

They may be expected to guard against the risk

OLA 1984: What does it mean if all three conditions which an occupier must be aware of are all satisfied?

Occupier must take such steps as reasonable to keep C safe from the specified danger

S1(4) OLA 1984

OLA 1984: The standard of care is objective but what are the variety of factors considered?

• Nature of premises

• Degree of danger

• Practicality of precautions

• Age of trespassers

OLA 1984: What does it state about obvious dangers for trespassers?

D is not liable for obvious dangers

(Ratcliff V McConnell)

OLA 1984: What does it state about timing for trespassers?

Affects decisions

(Donoghue V Folkstone properties)

OLA 1984: What does it state about economic factors regarding trespassers?

D need not spend huge money guarding against obvious dangers, especially if funds are limited; D must also take some personal responsibility

(Tomlinson V Congleton Borough Council)

OLA 1984: What does it state about the knowledge of C’s presence regarding trespassers?

D is not liable if they do not know of presence

(Higgs V Foster)

OLA 1984: What does it state about the knowledge of danger regarding trespassers?

D cannot be liable for a danger they did not know about, ie fiberglass submerged in water

S1(3)

OLA 1984: What does it state about it not being the premises that was at fault, but what C was doing?

Falling off a fire escape, when showing off to friends= no liability. Not the premises that was at fault, but what C was doing

Keown V Coventry Healthcare NHS Trust

OLA 1984: What does it state about about obvious dangers?

Baldaccino V West Wittering

It was an obvious danger and the injuries are not from the state of the premises

OLA 1984: What does it state about warning signs under trespassers?

The duty can be discharged providing that the occupier provides a warning of the danger or discouraging the risk

S1(5) OLA 1984

OLA 1984: What is an example of where a warning notice was used for trespassers?

(Westwood V The Post Office)

Injured after entering a room that had a warning notice on the door. This was sufficient for an adult- questionable for a child, it would depend on the circumstances

OLA 1984: What is the remedies for occupiers liability to unlawful visitors?

claimant is only able to claim for personal injury and not for property damage

S1(8) OLA 1984

OLA 1984: What are the defences for occupiers liability to unlawful visitors?

• Volenti

• Contributory Negligence

OLA 1984: How does the 1984 Act respect the principle of fault and is fair?

The occupier must be aware, or have reasonable grounds to be aware of the danger and the presence of the trespasser?

OLA 1984: Where was it seen that the occupier must be aware or have reasonable grounds to be aware of the danger and the presence of the trespasser?

S1(3)(a) and (b) OLA 1984

OLA 1984: Why is it an advantage if the occupier must be aware or have reasonable grounds to be aware of the danger and the presence of the trespasser?

This is fair as the occupier cannot be described as being at fault for dangers that they did not know about. Moreover, they did not invite the trespasser onto their land and therefore it would be unfair to expect them to take responsibility for them on their premises which they did not guarantee to be reasonably safe

OLA 1984: What can it be argued that S1(3) encourages occupiers to simply do?

Avoid looking for dangers as, if they do so, they can attract more liability than they would if they did not undertake such investigations. An occupier deliberately not looking for dangers is arguably just as much at fault

OLA 1984: How is it seen that judges have interpreted the law to achieve a fair balance between claimants and defendants?

The introduction of obvious dangerous means that occupiers do not have defend against every risk

OLA 1984: Where is it seen that there has been an introduction of obvious dangerous means that occupiers do not have defend against every risk?

Tomlinson V Congleton Borough Council

OLA 1984: What can occupiers do not have defend against every risk lead to?

Better allocation of capital by the occupier- this is especially the case in relation to public authorities, like in Congleton, who may not have the funds to do everything reasonably possible to make a particular danger safe on their premises. The claimant must also take some accountability for their own fault

OLA 1984: How is it seen as being problematic that occupiers do not have defend against every risk lead to?

As it means that claimants are unable to recover any form of damage- despite all parties accepting there was a danger on the land. This fails to meet one of the main aims of tort law: restitution

OLA 1984: How does The 1984 Act operate in a way which respects public policy?

Unlike in the 1957 Act, claimants can only claim for personal injury- not property

OLA 1984: What is the case which shows that claimants can only claim for personal injury?

S 1(8) OLA 1984

OLA 1984: What does it mean that claimants can only claim for personal injury?

Its the fault of the occupier, the costs of medical treatment are either covered by the occupier or their insurers. This protects public bodies, especially social care, who this cost would otherwise fall on. It also discourages trespassing as property damage is unrecoverable so the claimant is likely to end up at a loss

OLA 1984: However, what is it likely that where personal injuries are cased the cost of the personal injuries are and subsequent care will be in comparison to property?

Significantly higher than the property damage. This could be said to be a poor allocation of loss because these high costs would fall on the occupiers of their insurers which is not as wide as the whole of the state

OLA 1984:How is it seen that the 1984 Act treats children harshly?

Unlike in the 1957 Act the Act the 1984 rules apply equally to children

OLA 1984: Where was it seen that the rules apply equally to children?

Baldicino V West Wittering

OLA 1984: How is it seen that the 1984 Act treats children harshly?

Where a child trespasses on property that would otherwise not be unsafe, other than the child’s use of it, then there is no liability: irrespective of the level of harm suffered by the child. This is very different to how the Occupiers Liability Act 1957 applies (see Jolley V London Borough of Sutton)

OLA 1984: However, especially in respect of trespass what is it reasonable to expect parents to do?

Teach children not to trespass

Comparison 1957+1984: How is the 1957 Act is more protective of the claimant which is fair?

Once a danger is identified, the occupier must keep the visitor reasonably safe

Comparison 1957+1984: Where is it seen that once a danger is identified, the occupier must keep the visitor reasonably safe?

S2(2) OLA 1957

Compare

1(3) OLA 1984

Comparison 1957+1984: Why is it an advantage that once a danger has been identified the 1957 Act expects the occupier to ensure that the property is reasonably safe?

This applies even if the occupier does not know this was the case- which may seem unfair, especially as the 84 Act requires subjective knowledge, but under the 57 Act the visitor is invited there and so its reasonable that they are held to a higher standard as the visitor would not be there without their invitation

Comparison 1957+1984: However, how is it seen that The 1957 Act is unfair on the claimant in residential cases?

As its possible for them to exclude liability under s2(1) of the OLA 1957. This is not possible under the 1984 Act. This leads to the bizarre situation where a trespassing burglar in a residential property may have a better claim than a lawful visitor

Comparison 1957+1984: How is The 1957 Act seen as unfair to the defendant?

The obligations imposed in relation to children are unclear

Comparison 1957+1984: Where is it seen that the obligations imposed in relation to children are unclear?

Glasgow Corp V Taylor

Phipps V Rochester

Comparison 1957+1984: Unlike the 1984 Act which applies the rules equally to adult and child trespassers?

The 1957 Act expects occupiers to guard against allurements- unless parents can be expected to protect their children from them. This makes the scope of liability unclear which is unfair as occupiers may spend more than necessary to make up for potential parental shortcomings due to the fear of being held liable for not protecting from allurements

Comparison 1957+1984: Often as in Phipps, where parental responsibility starts is very clear and the courts are more likely to find?

Liability on behalf of the parents where it is clear that occupiers have taken steps to protect them children. As noted in Laverton, reasonable safety does not mean complete. It is reasonable for an occupier to assume young children will be accompanied by competent adults

Comparison 1957+1984: How does the 1984 act fails to respect key principles of tort law which is unfair to the claimant?

The 1984 Act specifically states the claimant cannot claim for property damage

Comparison 1957+1984: What is the section which covers the claimant cannot claim for property damage?

S 1(8) OLA 1984

Comparison 1957+1984: Unlike the 1957 Act, the 1984 Act does not allow claims for personal injury damage even where it can be proven that the defendant was at fault what does this mean?

This fails to meet several standards of tort alongside the requirement of fault: including putting the victim back into the position they were in, aiming to improve standards, and deterring occupiers from poor standards. This is not the case with the 57 Act as all types of damage can be recovered

Comparison 1957+1984: However, how is it hard to see how the 1984 Act is unfair on the claimant?

By not allowing them to recover property damage as man would argue by trespassing, they are responsible for the harms that come to them

Comparison 1957+1984: How is the 1984 Act unfair to the defendant?

A defendant attracts liability from actions caused by the claimant without any action or consent on the defendants