Occupier's Liability - 1957

Who is an Occupier?

Definition (AO1)

No Statutory definition of an Occupier (O) so defined under common law. - “A person who has sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury.

An O does not have to own a premises or have to physically be at the premises.

Who is an Occupier?

Case

(Wheat v Lacon)

D’s were brewers who owned a pub. Employees managed the pub. C was staying in the private section with husband as paying guests. C’s husband fell down a dimly lit staircase and died.

Question was who was an O - Both the owners and licensees were found to be occupiers

Working out who is the occupier

Exam tips (AO2)

• O is likely to be the person who is most easily identified as having control over the premises and is most obviously seen to have the responsibility for the safety of visitors

• Question of FACT.

• Can be more than one occupier

• Both or all Os can be liable in respect of the same damage

• Courts are likely to look at whose insurance policy covers the premises and is likely to meet the claim.

What are Premises?

Definition (AO1)

No specific statutory definition but OLA 57 s.1 (3) indicates that a premises is any = “Land & Fixed or moveable structure including any vessel, vehicle and aircraft”

Common Law also includes: Houses, buildings and the land itself along with ships in a dry dock, lifts (Haseldine v Daw) & ladders

Who is a duty owed to (OLA 57)

Definition (AO1)

OLA 1957 imposes an automatic duty on occupiers of premises to all LAWFUL VISITORS (LF)

(Anyone on the premises with the O’s permission)

Who is a Lawful Visitor

Definition (AO1)

Someone with express or implied permission (E.g. repeat visits /right by law - emergency services) from the O to enter the premises or who has a right to be on the premises.

Anyone without permission or who exceeds their permission is a trespasser.

Children who are trespassing may be considered an LV if there is an allurement on the premises

Who is a Lawful Visitor - Express Permission

Definition (AO1)

• Written

• Oral or

• Contractual (Ticket)

Who is a Lawful Visitor - Implied Permission

Definition (AO1)

• Repeat visits

• Doctrine of allurement

• Entry to Communicate

• Statutory Power of Entry - emergency services

Permission can be implied through conduct or circumstances.

It is decided upon the fats of each case whether the O has impliedly given permission.

Who is a Lawful Visitor - Implied Permission - Repeat visits

Rule (AO1)

If an occupier knows or should know that people are repeatedly visiting but does nothing to stop it, then then visitors will have implied permission, unless they exceed the permission.

Who is a Lawful Visitor - Implied Permission - Repeat visits

Case (AO3)

(Lowery v Walker)

Local people used O’s field as a short-cut and O knew this. Without warning, O placed a dangerous horse into the field which attacked and injured the C.

Who is a Lawful Visitor - Implied Permission - Entry to communicate

Definition (AO1)

Where a visitor enters a premises in order to communicate with the occupier, there will be implied permission.

Who is a Lawful Visitor - Implied Permission - Entry to communicate

Case (AO3)

(Robson v Hallet)

D’s were convicted of assaulting a police officer in the execution of his duty. They appealed saying that the officer had opened the garden gate and stood on their front step and so were trespassers, meaning they could not be in execution of their duty.

Held that there is an implied permission to enter premises in order to communicate and so officers were not trespassing.

Who is a Lawful Visitor - Implied Permission - Statutory Power of Entry

Definition (AO1)

Under s.2(6) of OLA 1957

Those with Statutory powers of entry are visitors under the Act, such as meter readers, firemen and police officers with a warrant. This is the case, even if they do not have permission.

When may an LV become a trespasser

Definition (AO1)

When they exceed their permission in terms of:

• Time

• Space

• Purpose

“When you invite a person into your house to use the stairs, you do not invite him to slide down the bannisters”

When may an LV become a trespasser

Case (AO3)

(Geary v JD Wetherspoon PLC)

LV slid down a long swooping bannister in a refurbished building that was to become a pub.

Seen that the activity (not the bannister) was unsafe

What is the duty owed by an occupier

Definition (AO1)

Under OLA 57 S.2(1) - An O owes the same duty, the ‘Common Duty of Care’ to all his visitors

OLA 57 S.2(2) - The common duty of care is a duty 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.

(Os need not gaurantee safety of visitors, merely take reasonable care only.)

What is the duty owed by an occupier

Case (AO3)

(Rochester Cathedral v Debell)

Trippers and slippers case. C won but D appealed and was successful.

Confirmed that O only had to keep LV Reasonably (not completely) safe.

Where must risk come from?

Definition (AO1)

The risk must come from the state of the premises and not the activity carried out on the premises.

Where must risk come from?

Case

(Poppleton v Trustees of the Portsmouth Youth Activities Committee)

Breach of Duty

Structure (AO2)

1. The Standard of Care

2. Special Visitors:

   • Child visitors

   • Very young children

   • Skilled Visitors

3. Liability of an O for the work of Independent Contractors (ICs) whose negligence harms visitors

4. Warnings

Breach of Duty - Standard of Care

Definition (AO1)

Occupier will breach his duty when he fails to meet the required standard of care (AKA The standard of the reasonable Occupier in keeping LV reasonably safe)

All circumstances must be taken into account

Visitors are expected to share responsibility for their own safety.

Breach of Duty - Standard of Care

Case (AO3)

(Tedstone v Bourne Leisure)

C was using D’s spa, slipped in a pool of water on the floor near the jacuzzi and was injured. Evidence showed that the water had not been there five minutes previously, had not gathered previously and would not have been detected by a reasonable system of checking.

D had not fallen below the required SOC and was not liable.

Special Visitors

Definition (AO1)

s.2(3) states that ‘The circumstances relevant for the present purpose include the degree of care, and want of care, which would ordinarily be looked for in such a visitor, so that in proper cases:

(a) An O must be prepared for children to be less careful than adults - Higher SOC

And

(b) An O 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 O leaves him free to do so. - Lower SOC

Special Visitors - Child Visitors

Definition (AO1)

s.2(3)(a) An O must be prepared for children to be less careful than adults - Higher SOC

Child visitors require a higher SOC since they are unable to foresee risk at the same level as an adult

Special Visitors - Child Visitors - Allurements

Definition (AO1)

“A child will be a lawful visitor if he comes on to the land to investigate something that is dangerous and attractive to children.”

When there is an allurement, a young kid (generally under 14) will transform from a trespasser into a LV and so OLA 57 (implied permission) applies

Special Visitors - Child Visitors - Allurements

Case (AO3)

(Taylor v Glasgow Corporation)

Ds owned Botanic Gardens of Glasgow (a park opened to public).

A boy (7) ate some poisonous berries from one of the shrubs and died. Held that berried represented “something in the nature of a trap. The berries looked alluring and as harmless as grapes or cherries… a concealed or disguised danger”

Shrub was not fenced off and there were no warning signs so Ds were liable.

-Parents were not expected to take care as child was allowed on land.

-At about 7+, parents can’t be held responsible for child’s actions.

-Os should know any dangers on their land so no defence of ignorance.

Special Visitors - Child Visitors - Allurements

Examples (AO2)

Attractions that may allure a child to premises include:

• Warning signs

• Abandoned Cars

• Food.

Special Visitors - Child Visitors - Very young children

Definition (AO1)

An O 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. It is their duty to see that such children are not allowed to wander about by themselves or at least to satisfy themselves that the places to which they do allow their children to go unaccompanied are safe.

Would not be fair to shift burden of looking after young children from parents to Os with accessible land.

Special Visitors - Child Visitors - Very young children

Case (AO3)

(Phipps v Rochester Corporation)

5yo boy and 7yo sister where walking across open ground used to develop a building site. Boy was not accompanied by an adult and was injured when he fell into an 8ft trench.

O was not liable.

Special Visitors - Child Visitors - Very young children and obvious risk

Definition (AO1)

Where a danger is obvious to a parent, an O is not required to explain these risks to parents or the children.

Special Visitors - Child Visitors - Very young children and obvious risk

Case (AO3)

(Bourne Leisure Ltd v Marsden)

Special Visitors - Skilled Visitors

Definition (AO1)

Duty owed to persons “carrying out to a trade or calling” (i.e. professionals / contractors -

s.2(3)(b)

Where a risk normally arises in the course of a person’s work, the O is entitled to expect such a person to appreciate and guard against any special risks which are part of the visitors job (the occupational hazard).

Only a risk relevant to the trade in question can allow O to escape liability.

Special Visitors - Skilled Visitors

Case (AO3)

(Roles v Nathan)

2 brothers were booked as chimney sweeps to clean flues. Flues had become dangerous from carbon monoxide and O told the brothers to leave. O’s ignored instruction and were forcibly removed and told to come back the next day. The brothers came back later that evening to finish the job and died.

O was not liable.

(Salmon v Seafarer Restaurants)

O of a fish and chip shop, negligently stated a fire. A fireman exercising his special skills was injured in an explosion.

Held that the O would be liable as he had created a special or exceptional risk.

Liability of Occupiers for the work of Independent Contractors whose negligence harms visitors

Definition (AO1)

Under s.2(4) OLA 1957 -

Where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor (IC) employed by the O, the O is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an IC and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the IC was competent and that the work had been properly done.

Liability of Occupiers for the work of Independent Contractors whose negligence harms visitors

Steps to be taken (AO2)

When assessing if IC is competent:

• Research the trader i.e. on check a trade

• References

When checking the work after completion:

• Check the work had been properly done, as long as it is reasonable (not necessarily reasonable to check work on a roof)

Liability of Occupiers for the work of Independent Contractors whose negligence harms visitors

Cases

(Bottomley v Todmorden Cricket Club) - Did not check competence

D hired IC to provide a firework display. D not check IC competence which would have revealed that he was not competent

(Haseldine v Daw) - Not reasonable to check work

V injured by a lift which crashed in block of flats, not reasonable for O to check the work in the lift since it was so specialist, it was reasonable to entrust the work to the firm without checking after

(Woodward v Mayor of Hastings) - Reasonable to check

V slipped on a step at school. O was liable as reasonable to check that IC had completed the work since no specialist knowledge was required to check the work.

Warnings

Definition (AO1)

Under s.2(4)(a) of OLA 1957

“A warning is not enough on its own unless it keeps the visitor reasonably safe in all the circumstances.”

• The O does not have to fix the premises, a warning may be enough.

• Look at cost / practicality for warning.

• The warning must be clear and specific.

• Warnings do not have to be given for obvious risks.

• Warnings can be expressed (signs) or implied (high fences) but should be clearly visible and explain the danger

Warnings

Case (AO3)

(Woollins v British Celanese)

D had put up a sign warning of a dangerous roof. As it was not visible, D was still liable

OLA 1957 Further notes

• Liability can arise from acts or omissions of the O.

• Meaning that if O omits to put right a problem with the premises he did not originally cause, he can still be liable for it.

• Duties of an O are not limited to avoiding causing injury to visitors, but also include a duty not to damage property of the visitor or others under s.1(3)(b)

• Factual and legal causation must be established.

Available Defences under OLA 57

• Consent under s.2(5) - Same rules on consent in negligence apply (Geary v JD Wetherspoon plc)

• Under s.2(1), an O may restrict or exclude altogether the DOC owed to his Vs through use of signs (Ashdown v Samuel Williams & Sons Ltd) -

• Under Unfair Contract Terms Act (UCTA 1977):

• Under s.2(1)liability for death or personal injury cannot be excluded

• Under s.2(2) - other types of loss can only be excluded if reasonable to do so.

• Under s.1(3)(b) - The O of a business premises can exclude liability for visitors admitted for a recreational or educational purpose which is outside the O’s business.