This is an extract of our Occupier's Liability document, which we sell as part of our GDL Tort Law Notes collection written by the top tier of Cambridge/Bpp/College Of Law students.
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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
?????Or property damage: OLA 1957 s1(3)(b) o 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). o 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. o 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'.
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': o C climbed down steps staying in a B&B in a pub; pub owned by brewery; managed by the Richardsons, the managers. o 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: o Wheat v Lacon: managers & brewery in that case [though claim failed]
o Collier v Anglian Water Authority: seaside promenade; water board & local authority = occupiers [though authority was liable]. o AMF International v Magnet Bowling: independent contractors and their employers = occupiers. o 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). o 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' o 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).
? ?? ? S1(2): visitor = same as at common law.
? ?? ? Visitor =
o (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 o (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. o (3) Express permission o (4) Implied permission o (5) Doctrine of allurement o (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) o 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. o 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. o Edwards v Railway executive: repeated trespass does not itself imply a licence ? you need clear evidence of conduct of occupier to show implied permission. o 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. o 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 3
allowed public to use land for general recreational purposes; not all reckless activities, here getting drunk and running away from a taxi.
? ?? ? Children & doctrine of allurement o Glasgow Corp v Taylor: occupier has poisonous berries; knew would attract child; child given implied licence. o NB, since 1984 Act, no need to legally transform a trespasser into a visitor, because 1984 Act gives rights to trespassers. o But referred to in (not used to change status to visitor) o Re strengthening DoC, Jolley v Sutton LBC: did not use allurement to change status; but said need to take extra care if something on property attractive to children: so used to make duty of care stronger. o Keown v Coventry Healthcare: courts won't use legal fictions to make a child a 'visitor' when child has rights under 1984 Act. Re a fire escape attractive to child, was a trespasser, exceeded purpose. o Phipps v Rochester Corp: a trench that was not concealed was not an allurement; occupier can assume parental care will apply; 5 yr old went blackberrying with sister; fell into large trench; D was entitled to assume children wouldn't come on. Limitations on visitor, might be turned into trespasser: (1) area; (2) time; (3) purpose
? ?? ? (1) Restriction by area (The Calgarth; Pearson v Coleman): o The Calgarth: Lord Scrutton, gave eg: when you invite someone into your house; you don't invite them to slide down the bannister. o Geary v JD Weatherspoon: C injured sliding down barrister; she consented to the risk (used volenti) defence, so didn't need to decide appropriate claim (OLA or common law). o Darby v National Trust: sign in car park said 'no swimming'; but sign not next to lake, only in car park ; so still a visitor. o Harder to transform child visitor into trespasser: Pearson v Coleman Bros: 7 yr old at circus; went to wee in a secluded area lion mauled her through cage; D argued wasn't supposed to be in that area, trespasser; but circus hadn't taken enough steps to restrict that area, especially given no toilet there, especially given was a child (no signs/banners); so she remained a visitor. o So to restrict by area, signs must be clear as to areas denied (Pearson) and in an appropriate location (Darby v National Trust)
? ?? ? (2) Restriction by time
4 o Stone v Taffe: lock in at pub; although outside licensing house, pub was holding a party; not a trespasser, if a time limit imposed it must be clear.
? ?? ? (3) Restriction by purpose o R v Smith and Jones (criminal case): accused went into father's home with a friend to steal 2 TVs; exceeded permission by stealing ? trespasser. o Tomlinson v Congleton: C went into a lake; clearly signed posted not for swimming ? purpose. So 1984 OLA claim for trespasser instead. o Harvey v Plymouth CC: C injured in area where occupiers (Council) knew there were general recreational activities; but carrying out activities (getting drunk, running away from tax) exceeded permission ? trespasser. o Keown v Coventry: child, climbed on fire escape ?
trespasser DUTY, automatic, s2(1)
??? ?Duty automatically arises, s2(1)
??? ?Once shown visitor & occupier ? automatic DOC.
??? ?Owed to 'all visitors' [except if excluded/restricted, see below]
BREACH (a) Standard
??? ?S2(2), standard: 'take such care as is 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'. (also Laverton v Kiapasha)
??? ?NB: about making the visitor reasonably safe; not the premises themselves.
??? ?It relates to the 'state of premises' rather than 'an activity' on the premises, which would call for a general neg claim.
??? ?[this is an extension of common law duty to act as a reasonable man, objective test]].
? ?? ? Owed to all visitors, personal characteristics can be considered -- Haley v London Electricity Board [NOT an occupiers case, but can apply] the blind should be considered as potential users of a highway.
? ?? ? Tomlinson v Congleton, apply general negligence factors:
? ?? ? Following cases, although C injured, no liability (not absolute duty, just 'reasonable'), had discharged duty, no breach: o Laverton v Kiapasha: C had drunk 10-12 bacardis; wearing
1.5 inch heels; water on floor of kebab shop; fell. Occupier had put non-slip tiles down; mat by door; mopped up where possible ? had taken 'reasonable' care to ensure
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