Occupier's Liability Notes

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TABLE OF CONTENTS
Duties owed by occupiers..........................................................................................................................................3
Occupiers' Liability to Lawful Visitors - The Duty imposed by OLA 1957................................................................3
Problem Question Structure.............................................................................................................................3
I - Who is the occupier?...........................................................................................................................................4
*Wheat v Lacon [1966] AC 552.........................................................................................................................4
AMF International v Magnet Bowling [1968] 1 WLR 1028................................................................................5
II - Who counts as a lawful visitor?...........................................................................................................................5
A - Ostensible Authority.......................................................................................................................................5
Ferguson v Welsh [1987] 3 All ER 777...............................................................................................................5
B - Implied License...............................................................................................................................................6
Edwards v Railway Executive [1952] AC 737.....................................................................................................7
Contrast Lowery v Walker (1911)......................................................................................................................7
Harvey v Plymouth City Council [2010] EWCA Civ 860......................................................................................7
C - Ceasing to be a visitor.....................................................................................................................................7
Tomlinson v Congleton BC [2004] 1 AC 46, HL..................................................................................................8
III - What risks is an occupier responsible for?.........................................................................................................8
A - Activity vs Occupancy.....................................................................................................................................8
Ogwo v Taylor [1988] AC 431............................................................................................................................8
Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052, at [113]-[155] (NB CA)...................................9
Tomlinson v Congleton BC [2004] 1 AC 46, HL..................................................................................................9
Keown v Coventry Healthcare NHS Trust [2006] 1 WLR 953...........................................................................10
B - Obvious Risk/continuation of the activity/premises distinction?.................................................................10
Tomlinson v Congleton BC [2004] 1 AC 46, HL................................................................................................10
Portsmouth Youth Activities Committee v Poppleton [2008] EWCA Civ 646..................................................11
C - Risks created by independent contractors (duty to ensure that IC is insured).............................................11
Maguire v. Sefton Metropolitan BC [2006] 1 WLR 2550.................................................................................11
Compare: Gwilliam v West Herts NHS [2003] QB 443.....................................................................................12 and Naylor v Payling [2004] EWCA Civ 560.....................................................................................................12
D - Warning........................................................................................................................................................13
Roles v Nathan [1963] 1 WLR 1117.................................................................................................................13
IV - Exclusion of liability.........................................................................................................................................13
Ashdown v Samuel Williams [1957] 1 QB 409 (NB decided before UCTA 1977 - BUT - important on
'conditions')....................................................................................................................................................13
White v Blackmore [1972] 2 QB 651 (NB decided before UCTA 1977)............................................................14
Occupiers' Liability to Trespassers - The Duty imposed by the Occupiers' Liability Act 1984................................15
Problem question structure............................................................................................................................15
Donoghue v Folkestone [2003] QB 1008.........................................................................................................16
Keown v Coventry Healthcare NHS Trust [2006] 1 WLR 953...........................................................................16
Tomlinson v Congleton BC [2004] 1 AC 46, HL................................................................................................17
Duties owed by occupiers by virtue of common law negligence..........................................................................17
Liability of non-occupiers........................................................................................................................................18
*Murphy v Brentwood DC [1991] 1 AC 398 (Local authority)..........................................................................18
Hoyano, 'Dangerous Defects Revisited by Bold Spirits' (1995) 58 MLR 887....................................................19

TORT: OCCUPIER'S LIABILITY

Page 1 General Problem Tips:----

First identify all possible claimants and defendants
Don't think too early on that a question is necessarily about x (ex. occupiers liability)
"Because the College, as owner, clearly has sufficient control for the purpose of Wheat v Lacon, they are an occupier" ? never just say "it is clear" - always back it up
The more specific a warning is, the more likely that the court would accept that it would in all circumstances be reasonable to make the person safe (but beyond this it is just a question of fact)
1957 Act says can be excluded "insofar as" one is free to do so - suggests that the
Ashdown test is carried into the act ? don't just say that they are free to do so.
Does the noticeboard appear to be entirely directed at students, or at visitors? This might be relevant to the question of whether it has been sufficiently brought to the attention of the visitor.
Notices are binding on children because children are not trespassers because they have a license, and if they have a license then the license can have conditions attached to it (and because in the same way that a child may not understand limits attached to their license, in the same way they can't think they have an unconditional license either)
Because the notice is inside the walls, then until they see the notice they have an unconditional license s64(4) CRA 2015!!!!!!!! On how prominent the sign has to be ? but the problem is that this provision only applies to that particular section so is irrelevant.
Trader "acting relating to the purposes of business" (s2) ? "acting" means letting the specific visitor in, or does it mean occupying the premises? Does it mean putting up the notice? If the latter, then if it is expected to be seen by a consumer, is that enough? If we don't define a "trader" more generally, then what is the role of s66 exception?
o The definition in s2 is "relating to the purposes of business.." whereas in s66 it's
"within the purposes of business..." so it appears broader.
3 elements to show for s66(4):
o Access for recreational purposes

Person suffers loss or damage because of the dangerous state of the premises

Recreational purposes were not within the s65(2) (excluding volenti) solves the problem that the CRA 2015 appears to prohibit only exclusions and limitations of liability and not disclaimers of duty - you can't get out of the duty
Articulating the test is much more important than applying the test to the instant case
(ex. the test for visitor/trespasser = whether the occupier
When questions of fact: "unless special facts are proved, there is likely to be a duty"
For Delia: Negligence duty of care under Haynes v Harwood (because in a rescue setting we don't treat as breaking the chain of causation if there is negligence with respect of Jane) - or there might be a duty only to the rescuer (ex. D is putting on a show where it looks like people are being injured though they are not, but that induces people to come and try to rescue these people)
Can Jane be sued? If you (negligently) put yourself at risk and it is foreseeable that someone might come and rescue you, then you might be liable.

TORT: OCCUPIER'S LIABILITY

Page 2 DUTIES OWED BY OCCUPIERS
OCCUPIERS' LIABILITY TO LAWFUL VISITORS - THE DUTY IMPOSED BY OLA 1957
PROBLEM QUESTION STRUCTURE
1) Cite s2 OLA 1957 2) Is there a duty in the first place with respect of the particular injury suffered?
a. What are premises? (S1(3))
b. Who is an occupier? (Wheat v Lacon)
c. Who is a visitor?
i. Someone invited or permitted to enter (s1(2))

1. Did D invite or permit C to enter?

2. Did someone who had the ostensible authority to issue such an invitation on D's behalf invite C to enter? (Ferguson v Welsh)

3. Is D estopped from denying that C entered as his visitor because he (or someone with ostensible authority to act on his behalf)
reasonably led C to believe that he had invited or permitted C to enter?

4. If either (a), (b), or (c) is true, did C cease to be a visitor by using the premises for a purpose other than that for which he is invited or permitted?
ii. Persons on the premises in the exercise of a right conferred by law (s2(6)

1. Excludes those entering in exercise of rights conferred by the
Countryside and Rights of Way Act 2000 or National Parks and
Access to the Countryside Act 1949 - these come under the 1984
Act (s1(4))
d. Did the danger arise due to the state of the premises?
i. S1(1): "state of the premises or things done or omitted to be done on them" (Fairchild (CoA), Tomlinson v Congleton) ? this is the same for both the 1957 and 1984 Acts ii. Activity or occupancy danger distinction

1. Was the injury suffered by reason of dangers due to the state of the premises?

2. Were there children, and does this influence the characterization?
3) Was the duty discharged or excluded?
a. Discharge by making the premises reasonably safe (warning or taking steps to remove the danger)
i. Warning: must be enough to enable C to be reasonably safe (s2(4)(a))

1. [NB that the 1984 Act (s1(5)) says something slightly different - it is enough to "give warning of the danger concerned or to discourage persons from incurring the risk" - Roderick thinks that the difference stems from the fact that a trespasser can always back away and leave whereas a visitor may have no choice but to stay]
ii. Children: must be prepared for children to be less careful than adults
(s2(3)(a)) (but can also expect children to be accompanied by parents)

1. Phipps v Rochester (C fell into trench, held that D did not breach his duty by doing nothing because he could have expected C to be accompanied by parents)
TORT: OCCUPIER'S LIABILITY

Page 3 2. However, Roderick thinks that what can be expected nowadays might be different to what was expected in 1955 [though I think if anything the expectation that children be accompanied is higher nowadays than it was in 1955 because of the proliferation of cars,
criminals...]

3. Thus Bourne v Marsden (2009): D, owners of a caravan site, did not breach their duty of care by doing nothing to warn the parents of a 2yo boy of the presence of a pond on the site, in which he drowned, because it would have been obvious to the parents that it would be dangerous to let a 2yo wander around the site unaccompanied.
iii. Known risks: no duty to take special steps to protect a visitor against a risk that the visitor knows about and can easily avoid (s2(3)(b) and s2(4)
(a))
iv. Obvious risks (Tomlinson v Congleton)
v. Accepted risks: common duty of care does not require an occupier to protect visitors against risks willingly accepted by the visitor (s2(5))

1. ex. Simms v Leigh Rugby Football Club: D, rugby club, did not owe
C, player, a duty to take care to ensure that C was not injured by being thrown against the concrete barrier around the pitch, which barrier was installed in accordance with the byelaws of the game as laid down by the Rugby Football League

2. However, scienter (knowing) is not volens - knowing will not be acceptance if C had no choice but to enter the premises (ex.
Burnett v British Waterways Board - employee was injured while on premises where he knew there would be that kind of risk, but he had no choice but to stay there)
vi. Delegation (s2(4)(b))
b. Disclaimer (expressly allowed by s2(1) OLA 1957 - can be by agreement "or otherwise")
i. Attachment:

1. "By agreement" = contract

2. "Or otherwise" = implicit reference to Ashdown v Samuel Williams
(merely notifying a visitor that you're not accepting any responsibility for their safety is effective) - appears from the case that three cumulative conditions must be made out:
a. C saw the notice b. C understood the notice c. C entered the land by virtue of being invited or permitted,
rather than by right ii. Interpretation: must cover the actual danger that gave rise to the injury iii. Validity

1. D is a business?
a. C is a consumer ? Consumer Rights Act 2015 i. D must be a "trader" (person acting for purposes relating to their trade, business, craft or profession)
and C must be a consumer (individual acting for purposes other than trade, business...)
ii. Are there multiple interpretations possible? ?
Interpretation most favorable to the consumer prevails (s62(1))
TORT: OCCUPIER'S LIABILITY

Page 4 iii. Is it unfair (i.e. contrary to the requirement of good faith, causes a significant imbalance in the parties'
rights and obligations to the detriment of the consumer)? ? invalid (s62(6))
iv. Is it trying to exclude liability for death or personal injury resulting from negligence (encompassing breach of OLA)?

1. C obtained access to the premises for recreational purposes and the purpose is not within the purposes of the occupier's trade,
business, craft or profession? ? Valid - can exclude liability (s66(4))

2. No? ? Invalid (s65(1))
b. C is not a consumer ? UCTA 1977 i. There must be business liability (i.e. a person in the course of a business whether his own or another's)
ii. It is for recreational or educational purposes, where these are not the business' purposes? ? Excluded, so the Act doesn't apply (s1(3))
iii. If the Act applies, exclusion or limitation for death or personal injury resulting from negligence (including breach of OLA duty (s1(1)) = invalid (s2(1)); other losses only if reasonable (s2(2))

2. D is not a business? ? No Act - attachment and interpretation are enough.
c. Exclusion (C contracts away his right to sue a D for damages if X happens ?
"No liability accepted for...")
i. Valid subject to:

1. Statutory provisions preventing D from doing so

2. C reasonably gave D the impression that C has agreed not to sue D

3. C has received "consideration" for agreeing to do this 4) Was there causation?
a. Wrong kind of loss?
i. ex. Darby National Trust: D owed and breached his duty under the 1957
Act in failing to warn C that he might contract Weil's Disease if he went swimming in D's pool, but in this case C actually drowned - the drowning was the wrong kind of loss 5) Was the loss suffered actionable damage?
a. Physical injury is included b. Property damage included also (i.e. common duty of care extends to any property lawfully on the premises is not damaged as a result of the occupier's premises being in a dangerous condition, which duty will be owed to whoever happens to own the property, whether or not they are visitors) (s1(3))
I - WHO IS THE OCCUPIER?
*WHEAT V LACON [1966] AC 552
#Who is an occupier; #Multiple occupiers; #Extent of duty; #No breach

TORT: OCCUPIER'S LIABILITY

Page 5 Facts: D, brewers who were owners of a public house, entrusted the house to a manager who lived on the first floor. C, guests who also stayed on the first floor, fell and injured himself because the handrail was too short and there was insufficient lighting.
Held (HL): Ds were occupiers of the first floor and owed a common duty of care under the 1957 Act, though they did not breach it. Manager and owner could both be occupiers simultaneously.
Lord Denning:
Owed a duty (yes): Question is whether brewers had sufficient control to put them under a duty to a visitor. They were definitely occupiers of the ground floor, since they managed it,
but they also had enough control over the first floor because they hadn't given C a lease but merely a license to occupy, and had the power to do repairs ? owed a duty.
Extent of the duty: Ds had a duty to ensure structure, furniture etc. were safe, but not to ensure that the light was turned on or that the rug was placed at the right place on the floor.
Breach of duty (no): It appears that the light was removed by a stranger shortly before the accident, and the handrail couldn't have been supposed to be dangerous. No liability for acts of a stranger.
NB: not all judges applied Lord Denning's reasoning - Viscount Dilhorne said the owner was occupying the room through the employee.
AMF INTERNATIONAL V MAGNET BOWLING [1968] 1 WLR 1028
#Who is an occupier; #s2(4)(b) failed; #Multiple occupiers; #Indemnity clause
Issue 1: Who is an occupier?
Issue 2: What do you need to do to ensure independent contractors are trustworthy etc.?
Facts: C began installation of their bowling equipment in D's partially completed premises,
which was later flooded after heavy rain because a doorway was faultily constructed,
damaging C's equipment. C claimed in tort under the OLA 1957.-

D1 argued that it came under s2(4)(b) OLA 1957 (the occupier is not to be treated without more as answerable for a danger caused by the faulty execution of work done by an independent contractor employed by the occupier, as long as he acted reasonably in entrusting the work to the IC and had taken such steps, if any, as he reasonably ought in order to satisfy himself that the IC was competent and work properly done) by entrusting the construction of the building to a reputable contractor under the supervision of qualified private architects.
D2 (builders) argued that they were not occupiers because of the interposition of D1.

Held:-

D1 owed a duty and breached it: they were not within s2(4)(b) because they employed private architects in association with their own salaried architects, and because they didn't take steps before allowing C to enter the partially completed premises to satisfy that D2 had done their work properly
D2 was an occupier (along with D1), and breached their common law duty by failing to take reasonable steps to provide precautions against flooding (applying Wheat v
Lacon)

TORT: OCCUPIER'S LIABILITY

Page 6 Issue 3: Indemnity clauses
Facts: there was an indemnity clause in the contract between D1 and D2, whereby D2 agreed to indemnify D1 in respect of "any injury or damage whatsoever to any property real or personal...".
Held: D1 was not entitled to be indemnified by D2 because indemnity clauses cannot found a claim in respect of consequences of C (D2)'s own negligence unless the clause allowed of such a claim by express words or necessary implication.
II - WHO COUNTS AS A LAWFUL VISITOR?
A - OSTENSIBLE AUTHORITY
FERGUSON V WELSH [1987] 3 ALL ER 777
#s2(4)(b) worked; #Who is a visitor? #Sub-contracting; #Activity vs occupancy;
Facts: A contracted with B to do building work, and expressly prohibited subcontracting. B
nevertheless contracted with C who adopted unsafe practices and injured employee, D. Issue was whether A owed a duty of care under the 1957 Act to D, i.e. whether D was a lawful visitor with respect of A.
Held (HL): Council (A) owed a duty, but hadn't breached it.
Issue 1: Was D a visitor with respect to A?-

Lord Keith:
o D is obviously a visitor with respect to B (because B invited him in). A and B's contract specifically prohibited sub-contracting without A's consent, which was not sought in this case, and there was no evidence that A knew that B was subcontracting unlawfully.
o However, "by putting B into occupation ... for purposes of demolition A had clothed him with apparent or ostensible authority to invite other persons onto the premises, including sub-contractors and their employees. Such persons would know nothing of the limitation on B's actual authority, and were not reasonably to be treated as trespassers in a question with the council".
o B was placed in control of the site for demolition purposes, and to one who had no knowledge of A's policy of prohibiting sub-contracts would indicate that he was entitled to invite whomsoever he pleased for the purpose of demolition.
Lord Goff:
o A person may be a visitor in respect to one person but a trespasser in relation to another (where there are multiple occupiers)
o Whether this is so depends on "whether the occupier who authorised him to enter had authority, actual (express or implied) or ostensible, from the other occupier to allow the third party onto the land" (yes in this case).

Issue 2: The extent of the duty (activity or occupancy)Lord Goff

There can be cases where work done on premises result in such premises becoming unsafe for a lawful visitor coming upon them (ex. a brick falls from a building under repair onto a postman), and in such circumstances the occupier might be held liable (subject to s2(4)(b)).

TORT: OCCUPIER'S LIABILITY

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