Occupier's Liability Notes

Tort Law: Occupier’s Liability

Claiming under statute CF common law

• Claims bought under OLA statutes relate to state of the premises.

• Revill v Newberry: D show C through hole in door; if just an activity, not connected with the state of the premises -> should be brought under common law not statute.

• Ogwo v Taylor

• Tomlinson v Congleton

• Fairchild v Glenhaven

Occupiers’ Liability Act (OLA) 1957 – for claims by visitors

LOSS

• PI

• Or property damage: OLA 1957 s1(3)(b)

  • AMF International v Magnet Bowling: claim for tearing clothes.

Loss Due to state of premises

• S1(1): ‘due to the state of the premises’.

• + s1(2)

• Revill v Newbery (a trespass case): Revill a burglar; shot by D on his allotment: although allowed claim, court said claim should have been brought at common law, was due to an activity on the premises, not due to state of premises (the duty is imposed ‘on an occupier as occupier’, not re activities unconnected to status as occupier).

  • Neill LJ:: the duty imposed by s1 1984 Act is the duty imposed ‘on an occupier as occupier’, whereas in this case whether he was an occupier was irrelevant to the act in question (shooting D), it would be the same of a third party (non-occupier) had fired the shot.

  • But court used the provisions of the s1 1984 Act to help define the scope of the duty owed in this case, re an intruder coming in middle of night. So they determined liability at common law, but using same lines as if considering breach of duty under s1 1984 OLA.

• Re ‘’things done or omitted’ on the premises: Revill v Newbery, quoting 1976 Law Commission Report: if the claim relates to an ‘activity’ done by occupier, it must be in his ‘capacity’ as an occupier. Neil LJ: duty is imposed ‘on an occupier as occupier’.

PREMISES, s1(3)(a)

• S1(3)(a): ‘any fixed or moveable structure, including any vessel, vehicle or aircraft’.

• Can include open spaces, public highways.

• Wheeler v Copas: a ladder = premises

• Furmedge v Chester-le-Street: an inflatable art installation = premises.

• Very broad.

Is D an OCCUPIER (s1(2))

• S1(2): refers to common law test: an occupier and visitors is same as person ‘who would at common law be treated as an occupier’.

• Sufficient degree of control:

• Wheat v Lacon, ‘sufficient degree of control’:

  • C climbed down steps staying in a B&B in a pub; pub owned by brewery; managed by the Richardsons, the managers.

  • Lord Denning: you can sue anyone who has sufficient control of the premises; you can have more than one occupier (in this case, both the Brewery (owners) and the Managers were occupiers).

• Can control someone other than owner, eg a tenant (Wheat v Lacon)

• Bailey v Armes, re flat roof on a supermarket; adjacent to D’s flat; neither party had ‘sufficient control’ over the roof area, neither was occupier.

• Can have multiple occupiers:

  • Wheat v Lacon: managers & brewery in that case [though claim failed]

  • Collier v Anglian Water Authority: seaside promenade; water board & local authority = occupiers [though authority was liable].

  • AMF International v Magnet Bowling: independent contractors and their employers = occupiers.

  • Furmedge v Chester-le-Street: re inflatable art installation. Occupiers = both the Local Authority and the organisers of the event (because the organising company had sufficient physical control over the premises).

  • Ferguson v Welsh: where multiple occupiers, the C might be a visitor in relation to one occupier; but a trespasser re the other.

• Independent contractors as occupiers, if have ‘sufficient control’

  • AMG International v Magnet Bowling: a contractor and owner = occupier.

• Absent owner can be an occupier (Harris v Birkenhead Corp, local authority occupier even though had never exercised control over property).

VISITOR?

• S1(2): visitor = same as at common law.

• Visitor =

  • (1) those with lawful authority (s2(6)):

    • eg firemen attending a fire (Ogwo v Taylor)

    • eg policeman with warrant (Snook v Mannion: implied licence of policeman to be visitor; can be rebutted; being told to ‘fuck off’ did not rebut their implied licence)

    • eg gas board officials

    • eg public entering recreation grounds with rights guaranteed by law

    • Other officials with statutory powers

  • (2) s5(1) implied under contractual term

    • Maguire v Sefton MBC: the duty of car into any contract is that under s(2) OLA, don’t get different duty from it being a contract.

  • (3) Express permission

  • (4) Implied permission

  • (5) Doctrine of allurement

  • (6) Public & Private right of way [[not covered on GDL]]

    • Those using public right of way not covered by OLA 1957/1984, reliant on common law.

    • Private right of way covered by OLA 1984, not 1957.

    • Under National Parks & Access to Countryside Act 1949: under 1984 Act.

• Express permission: eg invite someone around expressly [[but can be limited by area, time, purpose]

• Implied permission (a sort of legal fiction)

  • Courts use as a way to turn a trespasser into a visitor to give them rights [[before 1987, trespassers had no rights if injured]]. So treat pre-1987 cases with caution, because before that, trespassers had no rights.

  • Lowery v Walker (1911): occupier had land close to railway station; savage horse on his land injured C; public had been making a shortcut to railway station over D’s land for 35 years = implied licence. Occupier knew ppl used the land, didn’t do much to warn people off.

  • Edwards v Railway executive: repeated trespass does not itself imply a licence you need clear evidence of conduct of occupier to show implied permission.

  • British Railway Board v Herrington: child trespasser near railway line; had implied licence, because railway board knew children could be there and was aware of danger.

  • Harvey v Plymouth CC (2010), CA: implied licence does not extend beyond the scope of activities for which the licence has been expressly/impliedly given. Council had allowed public to use land for general recreational purposes; not all reckless activities, here getting drunk and running away from a taxi.

• Children &...

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