Discharging An Occupier Notes

Discharging common duty of care

Nature of Duty Owed

• Duty Owed

  • Single duty owed by occupier to all lawful visitors regardless of purpose of entering

    • S.2(2): “Common duty

      • To take such care as in circumstances is reasonable

        • To see that visitor is reasonably safe in using premises

          • For purpose for which visitor invited or permitted by occupier to be there

    • Giliker: Act is visitor-centric rather than property centric

      • So inviting a blind man onto the premises will lead to a greater duty to take care of visitor than if sighted person invited

      • Thus liability can arise where occupier merely fails to protect a visitor

        • From danger on the premises

          • Thus proximity, regarding Occupiers Liability, is not a requirement.

          • Merely that O has invited C onto the premises.

• Breaching Duty

  • Courts will have regard to the same general factors which would be considered in common law negligence action

    • E.g. Likelihood and foreseeability of risk materialising

    • Magnitude of loss if no steps taken

    • Difficulty in cost and practicality of taking precautions

  • S.2(3): Consider the “degree of care, and of want of care, which would ordinarily be looked for in such a visitor”

Special rules regarding children and professional visitors

• Children

  • S.2(3)(a): Occupier must be prepared for children to be less careful than adults.

  • Jolley v Sutton LBC [2000]:

    • Lord Steyn: Occupiers should not underestimate ingenuity of children to do injuries to themselves

      • And should therefore be prepared to take appropriate precautions.

  • Giliker: occupiers liability often wide when it comes to children

    • Occupier not always liable for children coming to harm

      • Phipps v Rochester Corp [1955]:

        • Devlin J:

          • Big children are curious and D should take reasonable steps to ensure they don’t bring themselves to harm

          • Small children lack any understanding or care

            • And it would not be right for D to have to take great steps to protect them (more so than with big children)

            • When it is clear that what they need is to be accompanied by a parent/guardian

        • Parents shouldn’t be able to abrogate blame onto D when they themselves should be taking due care of small children and not just letting them roam.

      • Simkiss v Rhondda BC (1983):

        • But occupiers should give due regard to the social habits of the neighbourhood when taking precautions

          • Thus if building site becomes routinely recognised as playground by unaccompanied children

            • Occupier has duty to ensure these children are reasonably safe.

        • However, there is no duty to fence off a mountain just on the off chance that small children come there.

• Professional Visitors

  • S.2(3)(b): Occupier can expect that person, in exercise of his calling

    • Will appreciate and guard against any special risks ordinarily incident to it

      • So far as occupier allows him free to do so

  • Giliker: essentially, if expert thinks they know best, they will be expected to take the required level of care for special risks their profession means they ought to be aware of.

    • Roles v Nathan [1963]: sweeps suffocate owing to monoxide poisioning which they claim to know about

      • Lord Denning MR

        • There are certain risks, appreciated by the 1957 Act s.(3)

          • Where occupiers are entitled to assume that men of their respective professions will know about and guard against

            • The risks to the sweeps here were special risks

              • But they were risks known by their calling

        • Might be a different result if the stairs of...

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