Occupiers Liability Notes

Occupiers Liability

• Liability under statute

1. Was PI or property damage suffered while C or his property was on the premises occupied by D (1956 Act covers both, 1984 only PI)

• no =no occupiers liability, but may be liable for nuisance or under Rylands v Fletcher

2. Did damage arise from danger associated w/the state of premises?

• no = no occupiers liability

• Liability to Visitors: Occupier’s Liability Act 1957

  1. Was D an “occupier”?

• No statutory definition, apply common law Wheat v Lacon – “does D have sufficient degree of control over premises such that he ought to realize that any failure on his part to use care may cause injury to a person lawfully coming there”

• Wheat v Lacon –D brewers owned a public house run by manager living on d 1^st floor w/ wife. Guest fell down the stairsb/c handrail was too short &no proper lightning. Held manager owed common law duty under 1957 Act but didn’t breach it. D brewer & manager could be occupiers simultaneously, relevant duties dependent on circumstances of occupation.

  • If A owns the premises

1. No-one is there A occupiers

2. B leases B (not A) occupies

3. B has a licence A probably has sufficient control

   • A company can occupy through its servants –Wheat v Lacon

   • Not necessary for occupier to have exclusive occupation – more than one occupier possible for same part of a building – Wheat v Lacon

   • Occupational control is a question of degree – a contractor building the house may have control of the site whilst the guy fitting a mirror might not

   1. Was C a “visitor”?

• “Visitor” = a person whom the occupier has given express or implied permission to enter

• invitees – a person invited onto the premises

• licensees – someone who merely had permission to enter the premises, express or implied

• allwho entered premises in exercise of a right conferred by law (s1(6))

1. firemen fighting fire

2. policeman executing a search warrant

3. public/private right of way is not a visitor

• McGeown v Northern Ireland Housing Executive (but private right of way can give rise to duty under OLA1984) –a person tripped on a path owned by local housing authority not maintained properly. The path was a public right of way so OLA didn’t apply.

• Where a person entered under contract terms, a term can be implied that duty of care is owed to him (s5)

• Implied licenses: prior to 1984 Act, children were main beneficiaries but could also apply to adults (e.g. where occupier did nothing for years to deter people from walking through his land)

• A person can cease to be classed as visitor if he exceeds the terms of his permission “when you invite a person into your house to use the staircase, you don’t invite him to slide down the banister”

• Harvey v Plymouth City Council [2010] – C drunk; out w/friends, immediately prior to accident was running away from taxi in order to avoid paying; ran over grassed area onto piece of land owned by LA; fell through gap in bushes, landing on concrete, suffered PI, incl. BD; sought compensation incl. loss of wages, arguing breach under OLA 1957. Court held C was a lawful visitor & LA had complied w/legal duty to ensure premises were safe b/c impliedly allowed people to come onto land in order to carry out normal activities but not to act in a reckless manner

• Occupier may withdraw his permission but tenant will have reasonable time to leave b/f he becomes a trespasser but C must be made aware he exceeded his licence

• Occupier may permit a person to be in some parts of the premises but not others Cisn’t covered if injured going to a part no-one reasonably expected him to go (e.g. wrong side of railings at train station)

• Independent contractors - implied term that occupier owes entrant the common duty of care

3. What duty of care did D owe?

• “Common duty of care” - D must “take such care as is reasonable in all the circumstances of the case to see the visitor will be reasonably safe in using the premises for the purpose of which he’s invited/permitted to be there – s2(2)

• UseBolton v Stonetest – cost of precautions compared to risk

• It is the visitor, not the premises, which must be safe (thus greater duty owed to the blind etc.)

• Special cases – s2(3)

1. Children are less careful than adults – s2(3)(a)

Butoccupier is entitled to assume behaviour of v. young children will be supervised by a resp. parent, in which case must provide a warning sufficient to alert the guardian

• Phipps v Rochester Corp – 5 y/o child wandered on unfenced building site near home, held to be implied licensee. If was so young that degree of supervision by adult ought to be expected, then only a warning sufficient to alert the guardian is needed. Unless there’s a reason to expect unaccompanied child to enter the premises, there’s no duty to warn of dangers that would be obvious to a guardian

• Bourne Leisure v Marsden(2009) - Cs took small children to holiday park, 2 y/o drowned in the pond. There was a path &fence but kid climbed over it. Held: no breach as it would be impractical to fence every source of hazard + clearer warning wouldn’t make a difference.

• Policy - Devlin – “not socially desirable if partents were able to shift the burden of looking after their children from their own shoulders to those with accessible land”

• Look at age of children and nature of premises in seeing if this assumption applies

2. Must take precautions against children being attracted to allurements

• Jolley v Sutton LBC – A boat in dangerous condition constituted an allurement to a14yr old

• Higher standard if there’s an allurement

• Big children are treated like adults, but in Jolley v Sutton it was proposed they are also more likely to encounter danger and less likely to appreciate it than adults.

3. May expect that a specialist, i.e. person in exercise of his calling, will appreciate and guard against any special risks normally incident to it, so far as the occupier leaves him free to do so – s2(3)(b)

• Roles v Nathan– 2 chimney sweepers given appropriate info about...

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