Occupier's Liability

Statute lays down that the occupier owes a duty of care to visitors to ensure that they are safe when visiting his premises. This is one of the few areas of tort that is covered by statute. Although there are relevant common law ideas as well. Occupiers Liabilty is applicable to both lawful and unlawful visitors.

Occupiers Liability Act 1957
This act governs the duty of care owed to lawful visitors.

Who is the Occupier?
The act does not define precisely who the occupier is, but common law is relevant here. The common law test that is to be applied is that of "OCCUPATIONAL CONTROL", or who has control over the premises in question. The omnipresent Lord Denning said that complete control over premises wasn't necessary, just sufficient control. This was stated in the ce of:

Wheat v E Lacon and Co Ltd [1966] AC 522

''Pub/B&B with a flight of stairs at the back, guest falls down them. The courts stated that both the landlord and the brewery had occupational control.''

And along with not needing complete control, the occupier does not even need to be physically there:

Harris v Birkenhead Corporation [1976] 1 WLR 279

''Local authority control of properties ready for demolition. A four year old fell out of window. Court held local authority responsible with occupational control.''

Who is the Visitor?
As this act is about a duty of care owed to visitors, it is important to know who the visitor is. A visitor is a person who has either express or implied permission to enter the premises according to common law.


 * Express - e.g. inviting a mate over to watch tv.
 * Implied - e.g. the postman.

This can also include people who can exercise a legal right to be there, such as the emergency services.

The Premises
The premeses are any buildings, land or houses and also include "any fixed or moveable structure" S1(3)(a).

The Common Duty of Care
The good old reasonable man is used here, as well as the guidelines laid down in S.2:


 * (3a) That an occupier must be prepared for children to be less careful than adults, and
 * (3b) That an occupier can expect a person in the exercise of his calling, to appreciate and guard against any special risks ordinarily incident to it.
 * (4a) That a warning may discharge the duty of care.
 * (4b) That the occupier is not liable for the fault of an independent contractor is s/he ated reasonably procided he or she acted reasonably in selecting the contractor, and took reasonable steps to ensure that the work was properly carried out.

Children
Children don't get their own special catagory but as section 2(3)(a) says, you must be prepared for them to arse about.

Glasgow Corporation v Taylor [1922] 1 AC 44

''Seven year old at a botanical garden. There was a bush with big red berries on it and he eats them. Sadly he dies as they were the berries of a belladonna plant. The courts said that the bush should've been at the very least fenced off and a warning placed, if not removed.''

But this can be contrasted with:

 Liddle v Yorks (North Riding Corporation) CC  [1934] 2 KB 101

''Children climbing up mound of earth in order to jump off wall (trying to demonstrate to his friends how bees flew...). Eventually injured himself. Courts said that it was obvious even to a seven year old that jumping from a great hight would cause injury.''

As mentioned above, some dangers are obvious even to a small child. In the case of  Phipps v Rochester Corporation  [1955] 1 QB 450 Justice Devlin created the Prudent Parent Test, which is well demonstrated in:

 Simkiss v Rhondda BC  [1983] 81 LGR 460

''Two little girls were sliding down the side of a mountain on a blanket. They flew over a thirty foot bluff and were injured and their parents said that the local authority should have fenced the area off. However, the courts said prudent parents would've told their kids not to play on dangerous land.''

But different approaches can be followed:

 Jolley v Sutton LB  C  HL 18th May 2000

Two teenage boys on the afformentioned boats. Thought they were doing it up. It fell and one of them was paralysed. Lord Hoffman, "inginutity of children of finding unexpected ways of doing injury to themselves, never underestimate this".

Skilled Visitors
The occupier is entitled to expect the skilled visitor in the exercise of his special calling to appreciate and guard against any special risk which normally accompanies his profession.

 Roles v Nathan  [1963] 1 WLR 1117 (Denning, again)

''Two chimney sweeps in commercial premises. Warned by engineer not to go into the chimneys whilst the flue was alight due to fumes. They did anyway and suffocated. Court held that the premises weren't liable as it was reasonable to expect that such specialists would have realised the risks.''

But just because people are skilled doesn't mean the occupier can discharge all of his responsibilities:

 Salmon v Seafearer Restaurants Ltd  [1983] 3 ALL ER 729

''Defendent's restaurant caught fire due to his own negligence and a firefighter was injured when he came to put it out. The court held that he owed a duty of care to the firefighter, same as any other visitor, as long as the firefighter exercised his trained fireman skills to a reasonable standard.''

This approach was later approved by the House of Lords in  Ogwo v Taylor  [1988] AC 431.

Indeed, the only way to escape liability with skilled persons is when they "act foolhardy".

Warnings
S.2(4)(a) states that an occupier shall be discharged of his obligation if he has warned the visitor, but only if it was sufficient to enable the visitor to be reasonably safe. A warning isn't always enough in itself, in  Roles v Nathan  Denning said that sometimes a warning just isn't enough and that the occupier may have to constuct some kind of physical barrier to keep their visitors away from the danger. But there is no need to do so in a case where the danger is so obvious and it is up to the individual to keep themselves safe, such as the case of  Staples v West Dorset DC  [1995] 93 LGR 536 where some dickhead slipped on a sea wall which was obviously covered in algae.

Ordinary Visitors
e.g. an adult, a customer or a postal worker.

 Laverton v Kiapasha  [2002] EWCA Civ 1656

''Lady slipped on takeaway floor in high-heels as it was raining outside and other customers shoes had made the floor wet. Manager had placed a warning sign, a doormat and slip resistant tiles and he mopped up regularly. Admittedly the floor was wet and he wasn't able to mop up as often as he'd've wished as the restaurant was very full that night. The Courts held that the manager was not liable, the 1957 Act only requires that the occupier take reasonable care to ensure his visitors are reasonably safe, he need not guarantee their safety. That would make this almost strict liability.''

Similarly in the following case, related to injuries occuring whilst partaking in a voluntary act:

 Poppleton v Portsmouth Youth Activities Committee  [2008] EWCA Civ 646

Guy climbing and jumped, blah. Courts held not liable as he was an idiot and the occupiers couldn't protect his from a risk he decided to take.

Exclusion of Occupiers Liability
S.2(1) states that the occupier may "restrict, modify or exclude his liability to any visitor by agreement or otherwise". This has been restricted under the Unfair Contract Terms Act 1977, but still applies (e.g. Ashdown v Samuel William & Sons Ltd [1957] 1 QB 409).

Occupiers Liability Act 1984
This act governs the duty of care owed to unlawful visitors. Before the act was legislated the law took a very hard-line approach to unlawful visitors. In the case of  Robert Addie & Sons (Collieries) Ltd v Dunbreck  [1929] AC 358 a four year old boy was crushed to death under a haulage system belonging to the colliery and the courts held that the company did not owe a duty of care as he was a tresspasser.

The position appeared to be softened by 1972 however with the case of  BRB v Herrington  AC 877, when a boy got badly burnt whilst tresspassing on a railway line as the courts held that there was a duty of care owed by the railway board, the common duty of humanity.

This all caused a lot of controversy and so parliament stepped in with the 1984 act which in now tresspassers, those who enter land in the exercise of rights conferred by an access agreement and persons lawfully exercising a right of way.

Conditions
The three conditions that must be met, as laid down in S.1(3), in order for a duty of care to be owed are:


 * 1) he is aware of the danger or has reasonable grounds to believe that it exists;
 * 2) he knows or has reasonable grounds to believe that the non-visitor is in the vicinity or that he might come into the civinity of the danger; and
 * 3) the risk is one aginst which, in all the circumstances of the case, he may reasonably be expected to offer the non-visitor some protection.

''Basically, you can't electrify your house or lay man-traps around the place. Dammit.''

 White v St Albans City and District Council  [1990] The Times 12 March

''Claimant took short cut over the defendent's land. Fell down trench. Court held that he knew about the danger but the defendent had no reason to believe this man would be in the vicinity''. how cool.

 Donoghue v Folkstone Properties  [2003] EWCA Civ 231

''Some twat felt like a midnight swim in Folkstone, Kent, harbour. He dived in from a slipway and smacked his head on an underground structure and was paralysed as a result. Court said they weren't liable as they had no reason to expect he'd be swimming.''

 Higgs v W H Foster  [2004] EWCA Civ 843

''A police officer entered somebody's premises to observe their next-door neighbour. He didn't have permission or a torch and it turned out that the premises were a garage and he fell down the inspection pit and suffered knee damage. Court held that there was no liability, why the fuck would someone be in their premises that time of the night...''

If section 1.3 is met then the courts shall then go on to consider...

The Duty
S.1(4): to take care as is reasonable in all the circumstances of the case to see that the non-visitor is not injured on the premises by the danger concerned. This is an objective test. The standard of care owed varies dramatically, and with burgulars it is very low but it is still there:

 Revill v Newbery  [1996] 1 WLR 238

''An old man with an allotment was fed up with thieves stealing his vegetables and tools. He hid in his shed with a shotgun. He heard noises and poked the gun through a hole in the door and fired blindly. He hit the guy in the armpit and chest. The courts ruled that burglars have to be protected as well or else that would make them outlaws.''

Warning
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Sub-section 5 states that an occupier can discharge his duty by giving a reasonable warning of the dangers to discourage people from taking the risk. Again, children are a risk and some sort of physical barrier may be necessary.A good example is owning a vicious dog. You could say you've discharged your responsibility by putting up a sign.

But if you deliberately starved it to piss it off you've probably gone too far.

But should someone be held liable because some idiot ignored the warning and injured themselves anyway? In  Tomlinson v Congleton BC  [2003] EWCA Civ 231 they found yes, but the House of Lords later reversed that decision.

Children
 Keowan v Coventry Healthcare NHS Trust  [2006] EWCA Civ 39

11 year old kid jumped off a fire escape and suffered brain damage and sued under the 84 act. Court held not liable as the danger wasn't the fire escape but his knowledge and capacity at the time.

Exclusion of the Occupier's Liability
UCT Act 1977 would not appear to apply to the 84 act because in most ases the occupier is unaware of the trespasser and so he cannot impose conditions on his entry. Another factor is that UCT Act's definition of negligence only includes the common duty of care under the 57 act, it does not comment on the duty owed under the 84 act. But the point has not been satisfactorily resolved.

Conclusion
It would appear that the 1984 act has not produced a substantial change in practice to the type of claimant who will succeed in an action against an occupier.L,\',\"