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Occupiers’ liability

Previous: Trespass

Introduction

Occupiers’ liability concerns the duty of an occupier of land towards those injured on that land. It is narrower than Donoghue v Stevenson [1932] liability and is generally governed by statute, in the form of the Occupiers’ Liability Act 1957, supplemented by the Defective Premises Act 1972 for lawful visitors, and the Occupiers’ Liability Act 1984 for non-lawful visitors. British Railways Board v Herrington [1972] also plays a part in liability for non-lawful visitors.

Lawful visitors

Common law

Under the common law, occupiers owe a limited duty of care to all lawful visitors. Visitors can either be contractual entrants (where liability depends on the contract), invitees (such as customers, who are to be protected from unusual dangers), licensees (people who enter for their own purposes, who are to be protected from concealed dangers) or trespassers (who are to be protected from intentional harm and recklessness). However, there is plenty of uncertainty in the common law, including, courtesy of London Graving Dock v Horton [1951], an inability of invitees to sue for known dangers, which undermines the volenti defence, and, from Slater v Clay Cross Co [1956], an inability to use occupiers’ liability in suing for activity which take place on land. This led to the legislature intervening with the Occupiers’ Liability Act 1957.

Occupiers’ Liability Act 1957

The 1957 Act serves a number of purposes. In section 1, the application of an occupier’s duty is defined. In section 2, this duty is explained. Section 3 is concerned with the duty owed to 3rd parties to contracts and section 5 is concerned with contractual entrants generally.

Who owes and is owed a duty?

  • s 1(1) – Use the common law to regulate occupiers’ liability to visitors for dangers due to the state of their premises and things done or omitted to be done on them.
    • There is some debate over whether the Act applies to activities carried out on premises, however it is irrelevant as the duty is now the same. It was said in Fairchild v Glenhaven Funeral Services [2002] that the duty owed does not cover the removal of asbestos.
    • Tomlinson v Congleton BC [2003] said that an injury caused by reckless act carried out by a lawful visitor could not be due to the state of the premises.
  • s 1(2) – Use the common law regarding invitees or licensees to say who owes and is owed a duty under section 2 of the 1957 Act.
    • ‘Who owes a duty’ was aptly answered in the case of Wheat v E Lacon [1966], where there were effectively two occupiers, one who licensed the use of one floor from the owner. A duty is owed by any occupier who has a sufficient degree of control over the part of the premises where the injury was sustained. Both were said to control different aspects of the staircase, although no liability was found for either occupier. Ferguson v Welsh [1987] ruled that someone who has express consent to enter is a lawful visitor and that a major contractor can be classed as an occupier, to the point that he can authorise the entry of sub contractors.
    • Lawful visitors are also those who have implied permission to enter. Implied permission may be revoked at any time. After giving a reasonable time to leave, reasonable force may then be used to remove the visitor from the premises. In Robson v Hallett [1967], sufficient time to leave was not given to a police officer before force was applied to ensure his exit. In Cooke v Midland Great Western Railway Co of Ireland [1909], implied consent was found for a child whose leg was crushed by a hidden danger. Though where repeated repair attempts were made to a fence to prevent non-lawful visitor in Edwards v Railway Executive [1952], an implied licence was not granted to tobogganing visitors. In Lowery v Walker [1910], an implied licence was found where a farmer placed a particularly vicious horse in a field to deter ‘shortcutters’ when one such person was injured.
    • The Calgarth [1927] said that permission to use the staircase did not give a visitor permission to then slide down the banister of that staircase, and in Harvey v Plymouth CC [2010], permission was not granted permission to run from an unpaid taxi over the defendant’s land; there was no liability for subsequent injury, the risk of which would have been obvious to intended users of the land. Ferguson v Welsh [1987] allowed contractors to permit entry to sub-contractors contrary to wishes of the main occupiers of land. An occupier may give ostensible authority to another person to grant and deny permission to be on the occupier’s land.
  • s 1(3) – An occupier also owes a duty to lawful visitors where he is the occupier of any fixed or moveable structure and to a visitor’s property.
  • s 1(4) – No duty is owed to highway users under the 1957 Act.

What is the duty?

  • s 2(1) – An occupier owes the same ‘common’ duty to all of his visitors, except where he is free to restrict that duty.
  • s 2(2) – The duty is to take reasonable care to ensure that visitors are reasonable safe in using the premises for their permitted purpose.
    • Note that the 1957 Act does not provide a duty of strict liability; an occupier need only take reasonable care. This is the same duty as is imposed in the tort of negligence. In Risk v Rose Bruford College [2013], there was no duty to prevent a 21 year old from jumping into a paddling pool, no responsibility had been assumed, and all reasonable care had been taken where there was responsibility.
    • Inspection regimes may be required in some circumstances. In Hall v Holker Estate Co [2008], it was reasonable to expect a dangerous goal post to be inspected each day, and in Tedstone v Bourne Leisure [2008], minute by minute inspections were not required, where a puddle may have then been noticed.
    • There will be liability if the outcome of a situation would have been different had a proper risk assessment been carried out. This was the case in Corbett v Cumbria Kart Racing Club [2013], where a sufficient inspection would have noticed an insufficient tyre wall. It was said in Wilson v GP Haden [2013] that non-compliance with a risk assessment is not a direct breach of duty, although in the circumstances, a pole decent should have been demonstrated.
  • s 2(3)(a) – An occupier must take precautions for children who are less careful than adults.
    • Where it is likely that children will enter upon an occupier’s premises, the occupier must take precautions, bearing in mind that children are often unaware of dangers which are obvious to adults. For example, in Maloney v Lambeth BC [1966], a child fell through some railings; the council were liable, and in Glasgow Corp v Taylor [1922], a tree of poisonous berries had not been fenced, resulting in liability for the council when a child ate some and then died.
    • In some cases, no duty has been found where children can be expected to be accompanied by adults. In Simkiss v Rhondda BC [1983], there was no liability where some children fell down a bank after their father abandoned them. Similarly, in Phipps v Rochester Corp [1955], the leading case, there was no liability in children falling into a trench where an adult could have been expected to be supervising them.
  • s 2(3)(b) – Experts must protect themselves from special risks incident to their calling where the occupier allows.
    • This means that if a contractor carries out a task dangerously, they cannot blame the occupier. In Christmas v General Cleaning Contractors [1952], no liability was found where a window cleaner balanced on the ledge of a window and fell. Similarly, in Roles v Nathan [1963], there was no liability in the death of two chimney sweeps who ignored warnings about carbon monoxide; the risk was incidental to their calling.
  • s 2(4)(a) – Can escape liability with warning signs which enable visitors to be reasonably safe
  • s 2(4)(b) – An occupier is not liable where damage is caused by the faulty work of a contractor, as long it was reasonable for the job to be entrusted to a contractor and reasonable steps were taken to ensure that the contractor was competent and the work was properly done.
    • This paragraph ensures that occupiers are not liable for a contractor’s work if that work was faulty and the occupier could not have discovered the fault.
    • However, a contractor will still be liable if he hasn’t checked the competency of the contractor. This was the case in Bottomley v Todmoren Cricket Club [2003], which involved some incompetent pyrotechnic display contractors. Similarly, in Woodward v Mayor of Hastings [1945], a cleaner’s work was not checked before a child slipped on a snowy step.
    • Checking insurance is one of the ways of checking ‘competency’. In Gwilliam v West Hertfordshire NHS [2002], involving a ‘splat-wall’ injury, the occupier believed that the contractor supplying the wall was insured; there was no liability when it was found that the contractor had not renewed his insurance. Payling v Naylor [2004] said that there is no need to check insurance for a door attendant managed by a third party and who had been employed with success for more than 18 months prior to the incident.
    • Where injury had occurred as a result of a contractor’s negligence, the contractor may be fully liable, as was the case in Hazeldine v Daw [1941] which concerned a lift which free-fell while the claimant was inside of it; or liability may be split, as it was in Alexander v Freshwater Properties [2012]. Here, the contractor’s faulty work was known to be so by the occupier. It should be noted that where a risk is due to the way in which work is carried out, and not the state of a premises, occupiers’ liability will not apply, according to Ferguson v Welsh [1987].

Contractual entrants

  • s 3(1) – A contract may not exclude the common duty of care defined in section 2.
    • Contracts may only enhance the duty of care owed by an occupier to a contractual entrant.
  • s 5(1) – The starting point for any duty owed under contract is the contract itself.
    • This point was well illustrated in Maguire v Sephton MBC [2006]. There was term implied in a gym membership contract that required machines to be safe. It was enough that the council had taken reasonable care to ensure their safe operation to negative liability towards the claimant.
    • Where an implied term cannot be found, the common duty of care from section 2 will be used by the courts.
    • A contract may exclude liability if that exclusion is bought reasonably to the attention of the entrant before the contract is completed. As such, in White v Blackmore [1972], there was no liability to a spectator killed at a race meeting as an exclusion which the occupiers had taken reasonable steps to bring to his attention excluded such liability. In Ashdown v Samuel Williams & Sons [1957], prior to the 1984 Act (below), it was said that where entry can be prohibited, liability can be discharged. However, one major caveat has now been imposed on an occupier’s ability to exclude liability for personal injury in a contract: the Unfair Contract Terms Act 1977. Section 1(1)(c) of this Act renders the whole act applicable to occupiers’ liability, and s 2(2) prevents the exclusion of liability for death or personal injury due to negligence. Any other exclusions regarding negligence must be reasonable (such as an exclusion of property damage). The 1977 Act does only apply to those contracting in the course of a business though.

Defences

There are two common defences to claims made by lawful visitors in occupiers’ liability. The first is contributory negligence, whereby a claimant contributes to damage suffered due to their own contribution; an example being Revill v Newbery [1996]. The second is the defence of volenti non-fit injuria, illustrated by the case of Geary v JD Weatherspoon [2011]. A claimant who slid down the banister of a staircase in a Weatherspoon restaurant after drinking alcohol attained a fracture in his spine. No liability was found as it was said that the injury had been consented to.

Non-lawful visitors

The duty owed to non-lawful visitors is lower than that owed to lawful visitors. Prior to the Occupiers’ Liability Act 1984, which provides the duty owed to nan-lawful visitors today, the common law provided for an extremely low duty. R Addie & Sons v Dumbreck [1929] concerned a child entering upon property where a clear warning notice was visible: “trespassers will be prosecuted”. The child was crushed to death by a hidden danger, but no duty was said to be owed. As a side note, one should be aware that trespassers cannot actually be prosecuted for just entering upon land, trespass is a tort and not a criminal office. The notice in Addie v Dumbreck [1929] served simply to ask visitors not to enter. The case of British Railways Board v Herrington [1972] ruled that all occupiers owe a common duty of humanity to non-lawful visitors. This is not excludable and was breached where BRB failed to repair a known hole in a fence and a child was electrocuted on a rail.

Occupiers’ Liability Act 1984

The 1984 Act increased the duty owed to non-lawful visitors, and can be summarised as follows.

  • s 1(1) – This section dictates, in the place of the common law, what duty is owed by occupiers to non-visitors for the state of premises and things done or omitted to be done on them.
  • s 1(2) – See the 1957 Act for the definition of visitor.
  • s 1(3) – A duty is owed where (a) the occupier is aware or has reasonable grounds to be aware of a danger; (b) the occupier knows of a possible vicinity of a non-lawful visitor to his premises, and (c) the risk is one which the occupier may be reasonably expected to provide some protection against.
  • s 1(4) – The duty itself is to take reasonable care in the circumstances to prevent injury.
  • s 1(5) – The duty may be discharged in reasonable circumstances with warnings or discouragements.
  • s 1(6) – No duty to those who consent to the danger.
  • s 1(7) – No duty to highway users.
  • s 1(8) – No duty to the property of non-visitors.

Two contrasting examples of the 1984 Act in action can be found in Swain v Puri [1996] and Young v Kent CC [2005]. In Swain v Puri [1996], a 9 year old child fell through a skylight in the roof of a factory. No liability was imposed as the defendants had no knowledge of vicinity under s 1(3)(b) of the Act. However, in Young v Kent CC [2005], a 12 year old climbed on the roof of a school building and fell through the skylight. Climbing on the roof of a school was a common occurrence, therefore liability was found, especially given how easy it would have been to prevent such an action. Damages were reduced by 50% for contributory negligence though. In Keown v Coventry NHS [2005], no liability was found where an 11 year old climbed up a fire escape and then fell; the incident was not due to the state of the premises.

Liability can be found in an action by the occupier on land, according to Revill v Newbery [1996], in which a farmer was 1/3 liable when he shot some vandals trying to break into his shed. Liability for an omission was found Goldman v Hargrave [1967], where a fire was left to burn out.

Excluding liability

One important question is whether the Unfair Contract Terms Act 1977 applies to the 1984 Act. Explicitly, it doesn’t, though it may be possible to infer application from the 1957 Act; nothing is said in the Act. The likely answer to this question is that the 1977 Act does not apply, however there is still a non-excludable minimum imposed by British Railways Board v Herrington [1972]. Certainly in Tomlinson v Congelton BC [2003], there was no duty to protect against obvious risks, especially where doing so would diminish the social value of land for many.

Whoever has the benefit of a private right of way may sell it on, and no duty is owed to highway users under s 1(7).

Liability of non-occupiers

As a general rule, according to Billings & Sons v Riden [1958], non-occupiers only owe duties in negligence, and not under occupier’s liability. In Buckland v Guildford Gaslight & Coke Co [1949], this concept was extended to apply to trespassers, as confirmed in Revill v Newbery [1996]. However, landlords may owe duties to their tenants under the Defective Premises Act 1972.

Defective Premises Act 1972

  • s 4(1) – A landlord owes a duty to their tenants for defects in his property.
  • s 4(2) – The landlord needs to know of the danger (or ought to have known).
  • s 4(3) – Defect means the state of the premises from the landlord’s act or omission at the time of the tenancy.
  • s 4(4) – No duty if tenant obliged to repair.
  • s 4(5) – Imposed in any tenancy.

In Sykes v Harry [2001], a landlord was 20% liable for the carbon monoxide poisoning of the claimant due to a faulty fireplace. In Drysdale v Hedges [2012], a landlord was not liable for his tenant slipping on some steps as the tenant had control over the steps and they were not out of repair. The steps were also not a ‘common part’ of the premises, to which the landlord would owe a duty.

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