SQE 1 - Tort Law (Occupier's Liabiilty)

What is occupier's liability?

A type of TORT where one owning or holding land owes a duty to people coming onto the land.

Which legislation governs occupier's liability for visitors?

Occupier's Liability Act 1957.

This act also covers people who enter a premise in exercise of a right conferred in law.

Which legislation governs occupier's liability for non-visitors?

Occupier's Liability Act 1984.

Who is considered a visitor under the Occupier's Liability Act 1957?

A visitor is someone the occupier has invited or permitted to be on the premise

Who is considered a non-visitor under the 1984 Act?

A non-visitor is a person who enters premises other than visitors, e.g. an unwanted neighbour.

A non-visitor will also be considered a trespasser. [Make a flashcard distinguishing trespasser from non-visitor)

What is a visitor?

A lawful visitor to premises is one that has a right to enter (e.g. police), or that is invited (e.g. hotel guests) or one whose presence had not been objected to (e.g. postal man delivering mail)

What is a trespasser?

A trespasser is someone who enters a premises unlawfully.

They have neither permission from the occupier nor any other legal right to be on the land.

What is an occupier?

An occupier is the person with the legal right to control of the premises.

There can be more than one occupier.

What are the key terms under OLA 1957?

1. Occupier

2. Control

3. Premises

4. Visitor

Wheat v E Lacon & Co Ltd [1966]

- Occupier

The brewery and the managers to whom they had let their public houses were both deemed to be occupiers under the OLA 1957, when a guest staying at the pub died after falling down the stairs.

Control

Control can also refer to a legal right to control the premises, even if the defendant does not take physical possession of the premise.

Harris v Birkenhead Corporation [1976] - the council were held to be occupiers' of derelict property after they took control over the property but did not secure it and a young child wandered and was injured when she fell through a vandalised window.

Premises

The definition is wide and includes 'any foxes or moveable structure, including any vessel, vehicle or aircraft'. s1(3)(a))

Jolley v Sutton London Borough Council [2000] - the court found an abandoned boat on council ground to be premises.

Visitor

Lawful includes:

a. those with express permission, for example a friend you invite

b. those with implied permission, fore example, a deliveryman dropping off a parcel

c. those under contract, for example workmen carrying out work under a contract for service

d. those with a right to enter, for example the police

The court recognises situations where a claimant may start off as a visitor but their behaviour or restrictions by an occupier means that they cease to be a visitor and they fall outside the OLA [1957] - for example a customer in a supermarket is a visitor, they have an implied permission to enter and shop. However, should they stray into the loading bay through a door with a sign prohibited the public, they would no longer be a visitor and become a trespasser.

Does the occupier have to be the owner of land?

An occupier may not necessarily be the owner of the land. The occupier will have an element of control over the premises, may not even be it sit on the premises and may have joint responsibility with another.

What is the duty of care under OLA 1957?

s2(2) states the 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 un using the premises for the purposes for which he is invited or permitted by the occupier to be there'.

This is a similar standard of care as with negligence.

Essentially, where the visitors are vulnerable and have dull knowledge of this vulnerability, the court will expect the occupier to take steps to guard against it. e.g. an open window on a second-floor property would not fail to make a visitor reasonably safe, however, the occupier would be in breach of the Act if a blind person was visiting and fell out of the window, suffering injury (Pollock v Cahill)

What is the type of damage cover under OLA 1957?

The act covers personal injury (including death) and property damage.

What are the factors to consider when determining an occupier's liability under OLA 1957?

Think about the basic principles of negligence the court will take into account, e.g.:

- what is reasonable in the circumstances

- likelihood of harm

- the nature of the danger

- the type of visitor and the purpose of visiting

- the seriousness and longevity of the risk

- the cost of prevention and whether there were any warning signs

Is the duty of care for either (1) ensuring the visitor is reasonably safe on the premises, or (2) ensuring the premises is safe?

The duty of care dictates that a visitor is reasonably safe of the premises. If a warning sign is displayed or an area cornered off advising visitors of the dangers of a certain part of the occupiers' premises, the duty will be complied with.

What are the special categories in the OLA 1957?

OLA 1957 allows for deviation from the usual standard of care in respect of:

- children

- skilled workers

What is the deviated standard of care in respect of children under OLA 1957?

s2(3)(a) OLA 1957:

- An occupier must be prepared for children to be less careful than adults.

What is the deviated standard of care in respect of skilled workers under OLA 1957?

s2(3)(b) OLA 1957:

- 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.

Special duty of care: Children

The court will take into account the age of the child and the risk posed.

What are examples of cases that illustrate this?

SPLIT into 3 separate flashcards

Titchener v BRB:

- 15 year-old-boy was hit by a train whilst walking on the railway line. The court held no duty of care was owed due to the fact as a 15-year-old should be aware of the dangers associated with the railway.

Bourne Leisure v Marsdon:

- A two-year-old drowned in a pond at a holiday park. A small fence surrounding the pool did not prevent the boy from entering the pond. The court found that the danger of a pond to a small child if the child wandered off was obvious (to parents) and that it was not necessary for the occupier to emphasis that danger. The occupier was not liable.

Phipps v Rochester Corporations:

- A five year-old-boy playing on a building site being developed by the council dell down a trench. The court held the occupier could assume the parents would having responsibility for their children would not allow them to play on a building site. The occupier was not liable.

Special duty of care: Children

If there is a danger of allurement on the land the occupier will be expected to take greater care

What are examples of cases that illustrate this?

A 14-year-old was injured when an abandoned boat (on council owned land) he and his friend had been working on fell on him. The boat, which had been in situ for two years, posed an allurement to children and the council was liable for the claimant.

Special duty of care: Skilled workers

The occupiers still has a duty towards skilled workers but the court will look at the nature of the risk.

Skilled workers are expected to take extra care to guard against risks associated with their profession.

Roles v Nathan:

- Two chimney sweeps attending a property to work on the chimney flues were warned about the risk of working on flues where the vents were sealed but continued to do so and died due to carbon monoxide poisoning.

The court held that as specialist they were expected to know and guard against the risks of such danger.

What are the factors to consider when determining duty of care owed to a skilled working exercising his skill under OLA 1957?

Consider:

- the type of risk and whether it is an obvious risk the skilled worker should have been aware.

e.g., an electrician injured due to failing to switch the electric off at the mains and working on wiring would not be successful in claiming against an occupier as knowledge of the risks of electricity are integral to the electrician's work.

How does s2(4)(a) OLA provide protection to occupier's via warnings?

Provides protection where claimants have been warned about the danger, however, the warning will not absolve an occupier from liability unless i all circumstances it was enough to enable the visitor to be reasonably safe.

This means that the court will consider the type of danger and the warning given and ascertain whether the warning was enough to keep the visitor reasonably safe.

Are occupier's expected to warn against dangers that are obvious, what case illustrates this?

No, if the danger is obvious, the occupier does not need to warn against it and can rely upon the openly apparent risk posed by the danger to alert the claimant to potential danger.

e.g. Derby v National Trust:

- Signs around a pond they knew the public swam in did not fund them in breach of s2 OLA 1957 as the court held the notices would have told the claimant no more than he knew due to the obvious risk posed by swimming in open water.

Will occupier's be liable if they fail to adequately warn of a danger that is not obvious, which case emphasises this?

If the danger is not obvious the occupier will be held liable if they fail to adequately warn visitors.

e.g. English Heritage v Taylor:

- C fell over a sheer drop whilst visiting Carisbrooke Caste, The court found that the drop was not obvious and the defendant should have placed a sign warning of the drop.

Summarise the factors which should be considered when dealing with warning signs and risk pose

Nature of warning:

- Is the warning clear?

- Does it adequately reflect risk posed?

Nature of danger:

- Is the danger obvious?

- Are there hidden dangers?

Nature of visitor:

- Is the visitor a child?

- Is more than a sign needed?

What is the circumstance where an occupier will not be liable of an independent contractor OLA 1957?

Where a occupier employs an independent contractor to undertake work, and a visitor is injured due to the faulty execution of that work, the occupier will not be liable if they have discharged their duty of care.

What are the three requirements of OLA 1957 for an occupier to discharge duty of care regarding an independent contractor?

1. Entrusted the work to a competent contractor

2. Taken reasonable steps to ensure the contractor was competent

3. Taken reasonable care to ensure the work was properly done.

In what context, can the discharge of duty regarding independent contractors apply?

s2(4)(6) stipulates that the work must be work of 'construction, maintenance or repair'. The more technical and complex the work, the more likely the duty of care will be discharged by engaging a reputable contractor.

What are the facts of Haseldine v Daw & Son Ltd?

- Independent contractors

The occupier entrusted the maintenance of lifts at his block of flats to an engineering firm and when the lift failed and injured a tenant the court held that the technicalities of servicing a lift was not work that the occupier could reasonably expected to check.

Occupier could successfully discharge their duty.

What are the facts of Woodlands v Mayor of Hasting?

- Independent contractors

The occupier was held liable for failing to check that the cleaner tasked with removing ice from the steps at a school had done so properly, on the basis that clearing ice is straightforward.

Essentially, where the nature of the work carried out by the independent contractor is not complex, the courts expect the occupier to notice when the work is defective.

What is the Occupiers' Liability Act 1984?

Whilst OLA 1957 focuses on a common duty of care owed to 'visitors'. OLA 1984, relates to non-visitors (trespassers) who have neither the occupiers' express nor implied permission to be on the premises.

The Act also applies to people exercising a right of way and visitors to land covered by National Parks and Access to Countryside Act 1949.

The definition of 'occupier' and 'premises' stays the same.

What damage does OLA 1984 cover?

Damage to property is not covered, only personal injury (including death).

What is the duty of care under OLA 1984?

A duty of care does not automatically arise under OLA 1984. S1(3) outlines the three conditions must be satisfied to impose one:

(a) The occupier is aware of the danger or has reasonable grounds to believe it exists

(b) The occupier knows or has reasonable grounds to believe that the trespasser is in the vicinity of danger

(c) The risk is one against which in all the circumstances the occupier may reasonably be expected to offer some protection.

The risk of injury must be due to the state of the premises.

The claimant was seriously injured when he attempted a shallow dive in a lake managed by the defendant. Signs around the lake prohibited swimming. The defendant knew people swam in the lake and intended to plant vegetation to prevent access but due to financial restraints had not done so at the time of the accident.

Had the defendant breached their duty of care under OLA 1984?

This are the facts of Tomlinson v Congleton Borough Council. The court found that the risk arose due to what the claimant did on the premises, not because of the state of the premises. When the claimant ignored the signs prohibiting swimming, he became a trespasser as he exceeded his implied permission as a visitor of the park as he entered inot the water.

The court held that although D was aware of the danger and had reasonable grounds to believe trespassers in the vicintity swam in the lake, the risk was one which the defendnant could not reasonably expected to offer protection against. The court found that divinf into the lake involved obvious riks and that the defendnant should not be expected to guard gaisnt.

What is '(a) The occupier is aware of the danger or has reasonable grounds to believe it exists'?

- OLA 1984 duty of care element

The occupier has to know about the danger.

Example:

Rhind v Asturbuty Water Park

- Diving into a lake, ignoring signs stating 'private property. strictly no swimming allowe;, the claimant hit his head on a hidden fibreglass container, the existence of which the defendant had no knowledge. The court held that, as the occupier did not know nor had reasonable grounds to believe the container existed, there was no liability on the occupier.

What is '(b) The occupier knows or has reasonable grounds to believe that the trespasser is in the vicinity of danger'?

- OLA 1984 duty of care element

The occupier has to be aware of the existence of previous non-visitors.

Swain v Puri:

- Climbing through a gap in ahigh fence and climbing onto a factory roof, the 9-year0old cliamant fell through a skylift. The court held that the occupier did not know (nor had grounds to beleive) children were in the vicinity and the claim failed.

Likewise, the occupier must know that the non-visitors are 'in vicinity' of danger

Donoghue v Folkestone Properties:

- The occupier had knowledge that trespassers swam in the harbour in the summer but had no reason to believe they would do so in the winter and the claim failed.

What is '(c) The risk is one against which in all the circumstances the occupier may reasonably be expected to offer some protection.'?

- OLA 1984 duty of care element

The court will not impose a duty of care where it is unreasonable to do so:

Simonds v Isle of Wight Council:

- A 5-year-old injured on a swing on a playground near to a school field being used for sports day was owed no duty of care as playing fields could not be made hazard free and it was unreasonable to expect the school to fence off the playground.

How is the duty of care imposed by OLA 1984 less onerous than OLA 1957?

It is less onerous as occupiers only need to take 'such care as reasonable in the circumstances'. This includes factors such as:

- the type of risk involved - was the risk obvious or a hidden risk?

- the type of trespasser - children? vulnerable adults?

- whether the risk could have been reduced

The courts also take into account the fact that the trespasser has not been invited onto the premises. e.g. had Rhind case been under OL 1957, the court would likely find that the occupier should have known about the container in the lack if 'visitors' has been swimming there and occupier would have been in breach of duty of care.

What is the violenti (consent) defence under OLA 1957?

The defence applies if the visitor knew, understood and accepted the precise risk.

What are the defences under both OLAs?

1. Violenti (consent)

2. Restrict/modify/exclude duty

3. Warnings

What is the violenti (consent) defence under OLA 1984?

The defence of consent is not specifically mentioned in the Act but it will apply in the same manner as it would for 1957 Act; ie if the visitor/trespasser knew, understood and accepted the precise risk the defendant would have a defence.

What is Restrict/modify/exclude duty defence under OLA 1957?

An occupier can restrict, extend, modify or exclude their liability.

The exclusion notice must be brought to the claimant's attention and the wording of the notice must cover the loss suffered.

What is Restrict/modify/exclude duty defence under OLA 1984?

Not specifically mentioned in Act but a D could use similar principles as the 1957 Act to restrict, modify or exclude liability.

What is Warnings defence under OLA 1957?

The warning must enable the visitor in 'all circumstances' to be safe.

What is Warnings defence under OLA 1984?

The occupier may discharge their duty to trespassers by giving warnings to discourage entry to trespassers. The occupier only needs to take 'reasonable steps' to alert.

Does contributory negligence partial defence apply to both OLAs?

Yes

The Law Reform (Contributory Negligence) Act 1945 applies and the court will reduce damages to the extent they find the claimant contributed to the injuries.

Applies to both acts (visitors and trespassers)

Is illegality a defence under OLA 1984?

No the defence of illegality does not apply to claims under the 1984 Act.

What is exclusion of liability under OLA 1957?

The OLA 1957 allows an occupier to seek to exclude or limit their liability by setting out a notice which allows the visitor to understand the conditions upon which the visitor is entering the occupier;s premises. By setting out the conditions to the visitor the occupier can attempt to prevent a duty of care arising.

What must an exclusion of liability under OLA 1957 do to be valid?

It must be brought to the visitor's attention.

What liability can be excluded under OLA 1957?

Liability for damage of ptoperty can be excluded. However, occupiers CANNOT exclude liability for death or personal injury.

What is an example of an exclusion of liability notice that would be successful?

A sign on a clear display before entry to a car park stating 'Vehicles are left in the car park at the owenr's risk .The management accept no respobnsbility for loss or dmage caused to any vehicles or its contents".

What is an example of an exclusion of liability notice that would be unsuccessful?

A notice in a car park stating "The management accept no responsibility for death or personal injury however caused on their premises' would be deemed a breach of UCTA which prevents exclusion for death and personal injury.

However, there is no such provision applicable to private premises, so an occupier of private premises could provide notice restricting, excluding or limiting their liability.

How does UCTA limit exclusion of liability and between which parties?

If the occupier is a trader or business, UCTA prevents exclusion of liability for death or personal injury.

- Covers business-to-business relations

How does the Consumer Rights Act limit exclusion of liability and between which parties?

If the occupier is a trader or business and the visitor is a consumer, the CRA prevents exclusion of liability and personal injury and protects consumers.

- Covers B2C relations.

Under s62 CRA - there is a requirement that warning signs and notices to be fair

what is exclusion of liability under OLA 1984?

Unlike OLA 1957, the OLA 1984 makes no reference to whether the occupier can exclude liability in respect trepasser. This may be an oversight by the legislature and it may be possible to exclude liability since it is not expressly forbidden or it may be that the legislature was of the opinion that it should not be possible to exclude liability for the basic level of protection afforded to trespassers.

Likewise, a trespasser would not be a consumer for the purpose of CRA 2015, nor would they be a business or trader for the purposes of UCTA 1977, therefore neither of these acts apply.

What is the Compensation Act 2006?

The acct allows the court to consider whether imposing a duty of care would prevent or discourage people from undertaking a desirable activity.

This could be volunteers organising charity or sports events and provides reassurance to those that failure to take precautions will not lead to a finding of liability if lose precautions would prevent the activity going ahead.

s2 of the amount provides that apologising should not amount to admission of liability.

This act is termed a 'compensation culture' and allows organisers of public events freedom to engage with the public without fears of claims.