Avoiding Occupier Notes

Avoiding Occupier’s Liability

Entrusting Work to Independent Contractors

• Situation where visitor suffers loss owing to independent contractor’s negligence in carrying out the work

  • Loss may come from

    • Manner in which contractors conduct themselves whilst on premises

    • Defect in premises owing to poor workmanship

• So, where visitor suffers damage due to “faulty execution of any work of construction, maintenance, or repair”, Occupier not normally liable if

  • S.2(4)(b): Reasonable to entrust work to independent contractor.

    • Giliker: which is accepted as being fulfilled when normally work entrusted to independent contractor

  • S.2(4)(b): Occupier took reasonable steps to satisfy self that contractor was competent.

    • Assumption of competence can be made unless occupier knows of previous incompetence

      • Lord Keith in Ferguson v Welsh [1987]: As long as occupier has reasonably chosen seemingly competent contractor

        • Is not up to occupier to supervise them all of the time

          • And only has to supervise if it comes to his attention that unsafe system of work is being used.

    • Although does extend in some circumstances to check X is a member of their trade’s association or holds relevant qualifications.

  • S.2(4)(b): Occupier took reasonable steps to satisfy self that work had been done properly.

    • Ferguson v Welsh [1987]:

      • Lord Keith:

        • Would be going a very long way to hold that an occupier of premises liable to the employee of an independent contractor

          • arising not from the physical state of the premises

            • but from an unsafe system of work adopted by the contractor.

    • Three factors pertinent here

      • Nature of work undertaken

      • Character of Occupier

      • Evidence of risk left by contractor’s work

    • Haseldine v Daw: C injured when life in block of flats fell to bottom of shaft owing to negligence of contractors paid to repair lift

      • Scott LJ:

        • The landlord of a block of flats does not profess any technical skill with lifts

          • Since he can’t rely on his own judgement, his duty of care requires him to seek this advice

        • Having done this, holding him liable would make him an insurer for an independent contractor’s negligence.

    • BUT would be hard to argue that Occupier not liable if obvious risk left owing to negligence of independent contractors

      • Woodward v Mayor of Hastings [1954]: C, a pupil at a school which D was responsible for, was injured falling down icy steps negligently left in this condition by a cleaner.

        • Du Parqu LJ:

          • D is liable - The craft of the charwoman may have its mysteries

            • But there is no quality in the nature of the work which the cleaning of a snow covered step demands

Exclusion Clauses

• Liability under the Act may be limited by an express term of a contract/ notice given to visitors

  • S.2(1) An occupier owes the same duty, the “common law duty”, to all his visitors

    • Except insofar he is free to and does extend, restrict, modify or exclude his duty to any visitor by agreement or otherwise

  • S.2(5)

    • The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted by his visitor ([to be determined by normal common law rules])

  • Occupier can limit liability by displaying notice that people can see when entering

    • White v Blackmore (1972):

      • Lord Denning:

        • Courts are reluctant to hold warning/exemption notices as being binding

          • Unless drawn to attention of entrant

            • And assent given by entrant to terms

        • Otherwise was not part of the contract and therefore inapplicable.

  • Or through clause in contract visitor enters under

• However, either course may engage UCTA 1977 if two requirements are satisfied:

  • Requirement 1: Term/notice must attempt to exclude or restrict liability for negligence

    • Unfair Contract Terms Act 1977:

      • S.1(1): “Negligence” means the breach of

        • (c) the common duty of care per OLA 1957

        • BUT (b) not a stricter duty

      • S.2(1) Personal Injury

        • A person cannot by reference to a contract term or a notice exclude or restrict his liability for death or personal injury

          • resulting from negligence

        • s.14 defines what a notice is (e.g. sign at entrance)

      • Other damage S.2(2)

        • In the case of other loss or damage

          • A person can’t restrict liability resulting from negligence, except so far as the term or notice

            • Satisfies the requirement of reasonableness.

      • S.2(3)

        • Where contract term or notice purporting to exclude...

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