Torts affecting land
Occupier’s liability
Occupiers Liability
Definition
Occupier’s liability concerns the liability of an occupier of land for the
claimant’s injury, or loss or damage to property suffered while on the
occupier’s premises.
Two statutes:
Occupiers liability act 1957 (concerned with the duty of care owed to
lawful visitors) and occupier’s liability act 1984 (concerned with the
duty owed to trespassers)
Who is an occupier?
There is no statutory definition, 1957 Act states in consequence of a
person’s occupation or control. Who ever has control over the land is an
occupier.
Wheat v E Lacon & Co. Ltd (1966)- manager of pub was given right to rent
out rooms in his private quarters. When claimant slipped on an unlit
staircase, court held that the manager and employer could be occupiers.
Premises
A person having control of any fixed or moveable structure, including any
vessel, vehicle and aircraft. Also includes:
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Ships in dry dock (London Graving Dock v Horton (1951))
Vehicles (Hartwell v Grayson (1947))
Lifts (Haseldine v Daw & Son Ltd (1941))
Ladder (Wheeler v Copas (1981))
1957 Act
This act introduces a common duty to be applied to lawful visitors.
Visitors include:
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All invitees (friends, people invited for a purpose)
Licensees (entry is a material interest to the occupier e.g.
Customers, also includes anyone who has a permission to be on the
premises)
Entering under a contractual agreement
Those who have a legal right (police, meter readers)
Scope of 1957 Act
Extent of duty: “an occupier owes the same duty, the common duty of
care, to all his visitors except insofar as he is free to do and does
extend, restrict, modify or exclude his duty to any visitors by agreement
or otherwise”
Nature of duty: “take such care in all circumstances… is reasonable to
see the visitor will be reasonably safe for the purpose for which he was
invited…to be there”
The standard of care is the same as negligence, the reasonable man. The
occupier only needs to guard against the foreseeable.
The duty applies only so long as the visitor is carrying out activities which
are authorised
The duty is to keep the visitor safe, not to maintain a safe premises.
Liability for children under the 1957 Act
The occupier must be prepared for children to be less careful than
adults. The standard of care is measured subjectively.
Moloney v Lambeth LBC (1966)- a four year old fell through the gap of
the railings on the stairwell and was injured. The occupier was liable.
The child may not appreciate risks as an adult would, the occupier should
guard against any allurement.
Glasgow Corporation v Taylor (1922)- a seven year old ate poisonous
berries in a botanical gardens and died. The shrub was not fenced of in
anyway, the occupier should have expected a young child might be
attracted.
People carrying out a trade on the occupier’s premises, 1957 Act
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The occupier will not be liable where a tradesman fail to guard
against risks which they should know about
Roles v Nathan (1963)- no liability on the occupiers when chimney sweeps
died after inhaling carbon monoxide fumes when cleaning flues. The
sweeps should have accepted advice of the occupiers to complete the
work with the boilers off.
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Tradesman may have an action against their employer if the latter
has agreed to an unsafe system of work
General Cleaning Contractor’s v Christmas (1953)- occupiers were not
liable for an injury sustained when a window cleaner fell after a window
closed on him, but the employers were.
Liability for the torts of independent contractors, 1957 Act
Occupier will be able to avoid liability if the damage was cause by the
negligence of an independent contractor. Three requirements are needed:
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It must be reasonable for the ouccupier to have entrusted the
work to the independent contractor.
Haseldine v Daw & Son Ltd (1941)- occupier was not liable for a negligent
repair of a lift, a highly specialist activity.
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The contracter hired must be competent to carry out the task
Ferguson v Welsh (1987)- demolition contractors hired by the local
authority employed the claiment. When he was injured as a result of their
unsafe working systems the local authority were liable
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If possible the occupier must check the work, it can be
unreasonable to impose this obligation
Woodward v The Mayor of Hastings (1945)- occupiers were liable when a
child was injured
Avoiding liability 1957 Act
Warnings-a warning will not be enough to avoid liability unless in all the
circumstances it was enough to enable the visitor to be reasonably safe.
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A mere warning will sometimes be insufficient to safeguard the
visitor and the occupier may be obliged to set up barriers instead.
Rae v Mars (UK) Ltd (1990)- a warning was ineffective in respoect of a
deep pit inside the entrance of a dark shed, the occupier was liable.
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Some risks are so obvious no additional warning is needed
Staples v West Dorset DC (1995)- danger of wet algae on a high wall at
Lyme Regis should have been obvious.
Exclusion clauses
These are allowed and can be a term in a contractual license.
Use of exclusion clauses will be subject to carious restrictions:
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They will be unavailable in the cases of people entering under a
legal right
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They will not apply in the cases of strangers
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They will probably fail against children
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They will not be allowed in respect of death or personal injury
Defences
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Contributory negligence
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Volenti non fit injuria (the risk must be fully understood, mere
knowledge of the risk is insufficient, if the clamant has no choice it
cannot be used as a defence, express warnings that the claimant
enters at their own risk may be caught by the Unfair Contract
Terms Act 1977
Liability to trespasses, 1984 Act
A duty applies in respect of people other than visitors for:
Injury on the premises by reason of any danger due to the state of the
premises or things done or omitted to be done on them.
The occupier will only owe a duty they:
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Are aware of the danger or has reasonable ground to believe it
exists
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Knows or believes the other is in the vicinity of danger
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The risk is one against which he may be expected to offer some
protection
Tomlinson v Cangleton borough council (2002)- a claimant dived into a
dangerous lake and suffered from paralysis. The council used signs but
knew they were ignored. The claim was successful under the 1984 Act.
There is no liability if:
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The occupier had no reason to suspect a presence of a trespasser
Higgs v Foster (2004)- a police officer investigating a crime entered the
occupier’s premises and fell into an uncovered inspection pit behind
coaches. No liability as the police officer was a trespasser and the
occupier did not anticipate his presence.
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The occupier was unaware of the danger or had no reason to
suspect the danger
Rhind v Astbury Water Park (2004)- the claimant ignored a notice stating
‘private property, strictly no swimming’ and jumped into a lake injuring
himself with objects below the surface of the water. The occupier had to
no reason to know of the dangerous objects.
Avoiding duty 1984 Act
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The occupier takes steps as are reasonable in all circumstances
Westwood v The Post Office (1973)- a notice that ‘only the authorised
attendant is allowed to enter placed on the door of a motor room’ was
held a sufficient warning for an intelligent adult
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There is no reference to exclusions in the act. It is argued that
exclusions should be impossible since the Act creates a minimum
standard of care. However, trespassers might be entitled to more
care than a lawful visitor.