Nature Of The Duty To Lawful Visitors Notes

Occupier’s Liability Act 1957

0. Actionable Damage

• S.1(1)

  • Rules... shall have effect, in place of the rules of common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises

    • So personal injury and property damage

• Includes damage to property not from visitors so long as brought by a visitor

  • S.1(3)(b) regulates... the obligations of a person...in respect of damage to property

    • Including the property of those themselves who are not visitors

• Does the Act only apply to “occupancy” duty?

  • What the difference?

    • Occupancy Duty: Arises from the state of the premises, not things done on them

      • This is definitely governed by the OLAs

    • Activity Duty: Arises from things done on the premises

      • Under old law, this was only dealt with under ordinary negligence principles

  • Unclear from the Act

    • Activity duty? s.1(1) [the Act shall apply] “in respect of dangers due to the state of the premises or to thing done, or omitted to be done on them”

    • BUT occupancy duty only? S.1(2): [the act shall] “regulate the nature of the duty imposed by law in consequence of a person’s occupation or control of the premises”

  • Case law suggests occupancy duty only

    • Portsmouth Youth Activities Committee v Poppleton

      • May LJ

        • The judge rejected Mr Poppleton's claim in so far as it alleged breach of s.2 of the Occupiers Liability 1957 .

          • There was absolutely nothing wrong with the state of the premises

            • and there was no relevant breach of duty to people other than Mr P arising from Mr P's activities.

1. Is D an occupier?

• From the Act

  • S.1(3)(a) The rules so enacted... shall apply...to regulate

    • the obligations of a person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft

  • s.1(2) accordingly for the purpose of the rules so enacted the persons who are to be treated as an occupier...

    • are the same as...the persons who would at common law be treated as an occupier

• Common law

  • Wheat v E. Lacon & Co Ltd [1966]:Mr W fell down some badly lit stairs at pub he was staying in and fractured his skull, killing him. C, his widow, claimed damages against L, the owners of the pub, and R, the licensees who actually lived and worked in the pub, for negligence causing death.

    • Lord Denning:

      • Occupier – someone who has sufficient control of premises

        • That they will be liable if they don’t take care towards a visitor injured on them

      • Where owner does not let premises but allows people to stay as licensees

        • He is regarded as being sufficiently in control of the structure to impose duty on him for all legal visitors

      • No difficulty with the fact that three people in this case could be said to be occupiers

        • They all owed a duty to do what was reasonable to the visitor to ensure their safety.

• Giliker: key question = no whether person is in actual occupation but whether they exercise control over the premises?

  • Harris v Birkenhead Corp [1976]: LA served notice of compulsory purchase on Z, and then a notice of entry telling Z, the tenant, to leave. LA did not enter after 14 days, Z hung around for a few more weeks, and then departed. C (4yo) entered premises through unsecured door, and then fell out of window, causing injury. Sued LA

    • Held that LA became occupier as soon as Z departed

      • Would not be the same for all cases

        • But fact no actual possession/control taken does not preclude fact that X may be regarded as occupier

          • if they have right to take possession.

  • Page v Reid (1984): Independent contractor only becomes occupier depending on nature of work undertaken

    • Constructing Office Block = occupier of site

    • Decorating house = not occupier

2. Did the damage to C come from Premises?

• No specific definition given by Act

  • BUT s.1(3)(a):

    • Any fixed or moveable structure

      • Including any vessel, vehicle or aircraft

  • And definition normally construed widely.

• Duty to Tenants modified by Defective Premises Act 1972 s.4:

  • (1) Where premises are let under a tenancy

    • Where landlord has obligation to tenant for maintenance/ repair of premises

      • Duty owed to take such care as is reasonable in all the circumstances

        • to all persons reasonably to be expected to be affected by defects in premises

          • so they are reasonably safe from personal injury

          • or damage to property caused by the defect

  • (2) The said duty is owed if the landlord knows

    • or if he ought in all the circumstances to have known

      • of the relevant defect.

3. Is C a visitor?

• S.1(2): Visitor = invitee/licensee

  • “accordingly for the purpose of the rules so enacted the persons who are to be treated as an occupier and as his visitors are the same (subject to subsection (4))

    • as the persons who would at common law be treated as an occupier and as his invitees or licensees

  • Common law definitions

    • Invitees

      • People who entered premises to pursue “common interest” with occupier

        • E.g. customers entering a shop

          • Occupier (shop owner) obliged to use reasonable care to protect invitee from unusual dangers.

    • Licensees

      • Where no “common interest”

        • But express/implied permission by Occupier for X to be on premises

        • Occupier only obliged to warn about any trap/concealed danger which they have actual knowledge

• S.5(1): Occupier allowed to set own standard of care for contractual entrants

  • But in absence of such provisions

    • Contractual entrants owed “common duty of care” like visitors.

  • Fact that X has contractual rights which are breached does not mean that liability of L is engaged

    • Berryman v Hounslow LBC (unreported): L had contractual obligations to repair a lift under the lease with his tenants. He failed to do so and the lift became inoperative.

      • Held

        • This is a breach of contract, but not a breach of the common duty in tort

          • (unless there is no other reasonably safe access to the building)

• S.1(4) Persons exercising rights of way are not...

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