OCCUPIERS’ LIABILTY

 INTRODUCTION

This handout is concerned with the liability of an occupier of premises for injury caused or damage done to persons or their property while on the premises. The law in this area is now statutory and is governed by the 1957 and 1984 Occupiers’ Liability Acts. This chapter does not deal with the situation where things done an the occupiers’ premises affect other premises; this is the province of the law of ‘nuisance’ and Rylands v Fletcher. The 1957 and 1984 Acts replaced a somewhat complex regime of common law, distinct from that developed from Donoghue v Stevenson, under which an occupier owed different standards of duty depending on the status of the person who came onto his land. Those entering under a contract were owed the highest duty, while progressively lower duties were owed to those entrants the law classified as invitees, licencees or trespassers. The position today is that the Occupiers’ Liability Act 1957 governs liability to lawful visitors and the 1984 Act governs the duty owed to those entrants loosely referred to as ‘trespassers’.

COMMON LAW BEFORE THE OCCUPIERS’ LIABILITY ACT 1957

At common law the duties of an occupier to the persons were cast in the following order:

1. Entry under Contract:  Entry into premises could be governed by contract, and that contract might have specified a very high level of liability for any defect in the premises.  But such cases were very rare.

2. Invitee: In the absence of any express contractual provision, the invitee had the highest level of protection. P was an invitee where O had a material interest in the purpose for which P entered, as e.g. a shopkeeper in relation to a person entering to buy goods. In such a case, O was liable if he failed to use reasonable care to prevent damage to P from any unusual danger of which O knew or ought to have known.  Persons such as police officers entering premises under lawful authority were normally treated as invitees.

3. Licensee:  Any other person on the premises with O’s permission, express or implied was a licensee. E.g, a person entering D’s shop to ask the way to the railway station.  Here, O’s liability extended only to concealed dangers or traps known to O but not to P.  Social visitors (in whom O had no “material” interest) were treated as licensees.

4. Trespasser: At this stage, O was under no liability at all for injury resulting from O’s negligence - the only duty towards trespassers was not to injure them intentionally or recklessly.

In the 1950’s the common law was considered to be unsatisfactory, on account of

(i) the artificial and often arbitrary nature of the distinction between licensee and invitee,

(ii) the “draconian” (harsh) decision that an occupier owed no duty of care in respect of negligent injury to a trespasser and

(iii) the occupier owed no duty to a visiting workman who continued to work though aware of a danger.

As a result Parliament enacted  the Occupier’s Liability Act 1957 and subsequenly the Occupier’s Liability Act 1984.

With rare exceptions, persons entering premises now fall into only THREE legal categories - each with its own level of liability.

Present categories are:

(i) Persons entering under a contract which contains an express provision imposing a very high standard of care (now less significant than the formerly; see Winfield, p 306)

(ii) visitors coming under the 1957 Act, and

(iii) persons entering as non-visitors within the 1984 Act.

ISSUES UNDER THE OCCUPIERS’ LIABILTY ACT 1957

WHO IS AN OCCUPIER?

The Occupiers’ Liability Act 1957 does not define the term occupier but stipulates that the rules of the common law shall apply (s 1(2)). The test is one of control and not exclusive occupation.

Wheat v Lacon  (1966 HL):

Facts: P and her husband were paying guests in a public house owned by a brewery [Lacon] and managed by Mr. and Mrs Richardson. P’s husband was killed when he fell down stairs in a part of the premises used by the Richardsons as a private dwelling. The handrail on the stairs did not reach to the foot of the stairs. P sued Lacon and the Richardsons for breach of duty under the 1957 Act.”

Held: The House of Lords held that there  was nothing to prevent two or more persons from being occupiers. As  Lacon & Co had the legal right to control the flat, they were its occupier, so were liable in respect of the state of the premises. So, Mr. and Mrs Richardson were also, as they controlled the alleged part of the premises under a licence-agreement, had a considerable degree of control.

Ferguson v Welsh (HL 1987): Lord Goff suggested that if land is in the occupation of two or more persons, then an entrant can, in appropriate circumstances, be regarded as a lawful visitor vis-a-vis one occupier but not with regard to the other.

Bailey V Armes (1999): Merely control over the main means of access to premises belonging to another is not sufficient control to make out occupier status.

WHETHER OCCUPATIONAL CONTROL EXISTS  IS A QUESTION OF DEGREE

Revill v Newbery (1996 CA): Occupancy duty does not cover any activity (unless such as to affect the state of the premises) carried on the premises by the occupier or a third party with the occupier’s consent.

Though the actual decision was made as to OLA 1984, presumably it had the same application in OLA 1957.

AMF International Ltd v Magnet Bowling Ltd (1968   ): A contractor undertaking a large building development would be an occupier of the site. An owner may also be an occupier simultaneously.

Page v Read (1984   ): A decorator painting a house would not be an occupier.

PRESENCE OF THE OCCUPER

Harris v Birkenhead Corporation (1976   ): It is unncessary that there should be any actual or symbolic taking of possession. A local authority which ahs made a compulsory purchase order and served a notice of entry becomes an occupier when theformer owner vacates the premises.

PREMISES

S 1(3)(a) of OLA 1957: “the obligations of a person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft;”

Thus, by section 1(3)(a) of the Act, the statutory provisions extend to any fixed or movable structure, including any vessel, vehicle or aircraft. This is apt to, include not only structures of a permanent nature but temporary erections such as ladders and scaffolding.

But with regard to “vessels, vehicles and aircraft” the Act would appear to apply only to the structural state of the premises, so that where injury is caused to a passenger by, say, negligent driving, the appropriate cause of action is negligence at common law.

WHO ARE LAWFUL VISITORS?

The statutory duty is owed only to visitors who, by section 1(2), are those who would, at common law, have been either invitees or licensees. The common law distinction between these two categories of entrant is thereby abolished and the vital distinc­tion (which remains unaffected by the Act) is as between the visitor and the trespasser (see 1984 OLA). No difficulty arises where the occupier expressly invites or permits another to enter or use his premises, bearing in mind that such invitation or permission may legitimately be limited either to a particular part of the premises or for a specified purpose.

S 1(2) provides: “The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a person's occupation or control of premises and of any invitation or permission he gives (or is to be treated as giving) to another to enter or use the premises, but they shall not alter the rules of the common law as to the persons on whom a duty is so imposed or to whom it is owed; and 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) of this section) as the persons who would at common law be treated as an occupier and as his invitees or licensees.”

1. EXPRESS PERMISSION

Where a person has the permission of an occupier to enter premises such permission may be limited by time, space, purpose or other circumstances. The Question is, as always, must be approached with common sense. See The Carlgarth (1927).

Gould V McAulliffe (1941   ): A customer of a public house may use its lavatory and remains a lawful visitor while making a reasonable search of it.

R v Smith and Jones (1976 CA): When a person who is given permission to enter a building for one purpose and enters for another purpose (presumably unlawful) he may be treated as a trespasser.

Robson v Hallett (1967    ): If a licence is revoked the entrant must be given reasonable time to leave the premises.

Snook v Mannion (1982 DC): The revocation of the licence must be clear and unambiguous.

Darby v National Trust (2001 CA): Notice of the prohibition of doing something must be prominently displayed if the prohibited act would amount to a trespass.

2. IMPLIED PERMISSION

Edwards v Railway Executive (1952   ): 1. It is a question of fact whether or not a person’s entry has been impliedly permitted.

2. The onus of proof on the C.

3. Repeated trespass itself confers no licence.

 

Knowledge of presence does not imply permission

Phipps v Rochester Corporation (1955    ): Knowledge of D is not of itself enough to constitute a licence. There would be a distinction between toleration and permission. The court followed Edwards.

Tomlinson v Congleton Borough Council and another (2003 HL)

A plaintiff who was injured by diving into shallow water in a lake where swimming was prohibited had no claim against the defendants as occupiers under s. 1 of the 1984 Act.

LORD SCOTT OF FOSCOTE agreed with Lord Hoffmann subject to the reservation that since the plaintiff had been diving in shallow water, not swimming, he had not been in breach of the defendants’ prohibition and thus not a trespasser.

Rules the same for children but may be a tacit licence

Lowrey v Walker (1911 HL): Members of the public had for many years used the defendant’s field as a short cut to the railway station. The defendant had not infrequently prevented them from so doing, but did nothing further until, without warning, he turned a savage horse in the field. The animal attacked and injured the plaintiff, who succeeded in his action on the basis that he was a licensee, not a trespasser.

This, and other cases, were decided at a time when trespassers were afforded little or no protection and, in view of the more favourable treatment which they now receive, the courts may be less favourably inclined to find an implied licence in a case such as Lowery.

British Railways Board v Herrington: House of Lords was imposed a “humanitarian” duty of care towards trespassers. That is to say trespasser was entitled to some protection by the law of negligence.

Entering premises to communicate with occupier does amount to tacit licence

A person entering with the purpose of communicating with the employer will have implied permission, for example asking directions, the postman, roundsman, etc.

Implied term in contracts

Section 5(l) of OLA 1984 provides that where a person enters under the terms of a contract with the occupier there is, in the absence of express provision in the contract, an implied term that the entrant is owed the common duty of care and, according to Sole v W. J. Hallt Ltd (HC, 1973), he may frame his claim either in contract or under the 1957 Act. It is further provided by section 3(l) that where a person, contracts with the occupier on the basis that a third party is to have access to the premises, the duty owed by the occupier to such third party as his visitor cannot be reduced by the terms, of the contract to a level lower than the common duty of care. Conversely, if the contract imposes upon the occupier any obligation which exceeds the requirements of the statutory duty, then the third party is entitled to the benefit of that additional obligation.

3. PERSONS WITH A RIGHT TO ENTER

S 2 (6) of OLA 1957: For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not.

PERMISSION OF THE PERSON OTHER THAN THE OCCUPIER

Permission of the Emploee not the employer

Ferguson v Welsh (1987 HL): If C is aware, or ought to have been aware, of a prohibition of entry and enters or remains in the premises, would become a tresspasser.

Exercising a private or public right of way does not constitute a licence

Greenhalgh v British Railway Board (1969  ): C is exercising a private right of way, is not a ‘visitor’. This has been confirmed by the House of Lords in the Northern Irish case of McGeown V Northern Ireland Housing Executive (1995  HL).

Holden v White (1982  ): A person using a public right of way is not a visitor.

Statutory exclusion

S 1(4) of OLA 1957: A person entering any premises in exercise of rights conferred by virtue of –

(a) section 2(1) of the Countryside and Rights of Way Act 2000, or

(b) an access agreement or order under the National Parks and Access to the Countryside Act 1949,

is not, for the purposes of this Act, a visitor of the occupier of those premises.

WHAT DUTY IS OWED BY AN OCCUPIER?

S 2(1) of The Occupiers’ Liability Act 1957:

“An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

Thus, the common duty of care is defined in section 2(2) as “a duty to take such care as in all circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted to be there.” This is similar to the common law duty of care.

Roles v Nathan (1963 CA): This duty of care is the same as the ordinary duty of care in negligence.

Berryman v Hounslow LBC (1997 CA): In appropriate circumstances an occupier may be liable to one of his visitors for harm caused by another visitor. But it must be a reasonably foreseeable consequence of a breach of duty by the occupier himself.. See also facts of Cunningham V Reading Football Club Ltd (1992 QBD).

Perry v Butlins Holiday World (1998 CA): The lower the structure it is the more likely that someone would fall on it and the top surface should be made of appropriate materials. (?)

Brannan v Airtours (1999 CA): The nature of the events must be considered by the courts. See the facts.

GUIDELINES

S 2(3) of The Occupiers’ Liability Act 1957:

The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases-

(a) an occupier must be prepared for children to be less careful than adults;

and

(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

1.CHILDREN {S 2(3) (a) of  OLA 1957}

Moloney v Lambeth (1966   ): The occupier was liable when a four-year old boy fell through a gap in railings protecting a stairwell, when adult could not have fallen through the gap.

ALLUREMENT

Latham v R Johnson and Nephew Ltd (1913 CA): Occupier should appreciate that in the case of an infant, there are moral as well as physical traps. There may accordingly be duty towards infants not merely not to dig pitfalls for them, but not to lead them into temptation.

Glasgow Corporation v Taylor (1922  ): The courts have always taken into account any attractive things which attracts children though does not attract adults. An attractive thing may not be a danger to the adults nevertheless be a danger to the children.

Phipps v Rochester Corporation (1955 QB): In the case of children the degree of care of the occupier would be as prudent parents.

Simkiss v Rhondda Borough Council (1983 CA): If the child’s parent does not consider the danger, the occupier cannot be asked to a higher standard of care.

Professor Markesinis and Deakin suggest that if a parent’s carelessness was a factor in the realisation of child’s harm, then the occupier’s liability should be reduced than completely avoided.

Jolley v Sutton London Borough Council (2000 HL)

Borough local council allowed an abandoned boat in a derelict condition to remain on its land and it was reasonably foreseeable that children might play on the boat and be injured, the council was liable even if a child was not playing but attempting to repair it in an unpredictable way and thereby sustained injuries which were more serious than were foreseen.

The House of Lords so held allowing an appeal by the plaintiff, Jolley, from a decision of the Court of Appeal (1998). The House held that it was reasonably foreseeable that older boys would prop up and work on the derelict boat.

2. SKILLED VISITORS {S 2(3) (a) of  OLA 1957}

Roles v Nathan (1963 CA): When a householder calls in a specialist to deal with a defective installation on his premises, he can reasonably expect the specialist to appreciate and guard against the dangers arising from the defect.

Bird v King Line Ltd (1970  ): It was held that the risks of working on a ship did not include failing on refuse which was carelessly left on the deck.

Ogwo v Taylor (1988 HL): If D carelessly starts a fire on his land and C, a fire-fighter, is burned while putting it out. See the facts of Salmon v Seafarer Restaurants (1983   ).

TWO FURTHER SPECIAL ASPECTS OF COMMON DUTY OF CARE

Section 2 (4) provides: In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)-

(a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe;

and

(b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.

1. WARNINGS {s 2 (4) (a)} eg: “The Bridge is dangerous’.

Roles v Nathan (1963 CA): The warning may be given by the occupier’s agent.

Tichener v British Railways Board (1983   ): D may argue that the only thing the reasonable occupier could be expected to do in that situation was to give a warning. Having given that warning D has done everything the duty requires.

Staples v West Dorset District Council (1995   ): An occupier had not been negligent when D had failed to provide a warning and the danger was obvious.

Ashdown v Samuel Williams and Sons Ltd (1957 CA) and White v Blackmore (1972 CA): It is not a matter for notice whether or not the entrant knew of the risk, but whether the occupier had made all reasonable effort to inform him of it.

Whyte v Redland Aggregates Ltd (1997  ): the plaintiff struck his head whilst diving into water in a disused gravel pit. The defendant had placed ‘Danger, keep out’ signs but the plaintiff argued that ‘No swimming’ signs should have been erected and that there should have been a warning of an uneven Surface. It was held that the defendant’s duty did not extend to putting up ‘No swimming’ signs or warning of the uneven surface.

See the speech of LORD SCOTT OF FOSCOTE in Tomlinson v Congleton Borough Council and another (2003 HL)

Bunker v Charels Brand and Son Ltd (HC 1969): Mere knowledge of the nature and extent of the risk is not necessarily a bar to recovery, though it may go towards establishing a defence of volenti non fit injuria or, more likely, contributory negligence.

Darby v National Trust (2001 CA):

A. The court followed Ashdown. May LJ held that: it cannot be the duty of the owner of every stretch of coastline to have notices warning of the dangers of swimming in the sea.

B. The absence of a warning about one kind of danger will not assist the claimant if he suffers injury due to another type of danger eg diseases.

2. LIABILITY FOR INDEPENDENT CONTRACTORS {s 2 (4) (b)}

THREE POINTS AS TO THE LIABILITY

A. It was reasonable for the occupier to entrust the work to an independent contractor. All surrounding circumstances are to be taken.

B. The occupier selected the independent contractor with reasonable care.

C. The occupier had taken reasonale care to supervise the work of the contractor.

Haseldine V CA Daw, & Son Ltd (1941 CA): The occupier is not necessarily expected to check work of a technical nature. The more complex the work the more reasonable it will be to entrust it to a contractor.

AMF International Ltd v Magnet Bowling Ltd (HC, 1968): In the case of a complex project occupier may be under a duty to have the contractor’s work supervised by a qualified specialist such as an architect or surveyor.

Woodward v Mayor of Hastings (CA, 1945):. Where the work is of a routine nature requiring no particular skill or expertise, the occupier may himself be expected to check it and will be liable for failing to do so.

EXTENSION OF THE CIRCUMSTANCES OF {s 2 (4) (a)}

Ferguson v Welsh (1987 HL):

A. On a point of interpretation it was held that the word “construction” in section 2(4)(b) was wide enough to embrace demolition.

B. There may be circumstances in which the occupier should intervene if he knows (p 318 of Winfield 2003) or has reason to suspect (Markesinis and Deakin (2003) that the contractor is using an unsafe system.

C. The majority also held that where an occupier had notice of an unsafe system of work adopted by the contractor, he could be liable to an employee of the contractor injured thereby.

INSURANCE OF THE INDEPENDENT CONTRACTOR

Gwilliam v North Hertfordshire Hospital NHS Trust (2002 CA): There would be a duty upon the occupier to inquire into whether or not the contractor has adequate insurance. However, simple inquiry coupled with an assurance from the contractor would be sufficient to discharge this duty.

DEFENCES

1. Warning.

2. Volenti no fit injuria.

3. Contributory negligence.

4. Freedom to extend, restrict, modify or exclude duty of care by agreement or otherwise

1. Warning: eg: The Bridge is dangerous. See above.

2. VOLENTI NON FIT INJURIA

Section 2(5) of OLA:

“The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).”

Thus it appears that the Act preserves the defence. When an adult of full capacity voluntarily undertakes an activity that carries an obvious risk and/or is obviously dangerous, then that risk cannot be taken to be a risk within the scope of the Occupiers Liability Act 1957 because the risk is not attributable to the “state of the premises”, but rather the free will of that individual in using the premises in such a way that they know to be dangerous.

Simms v Leigh Rugby Football Club Ltd (1969): The plaintiff had accepted the risks of playing on a

rugby league ground which conform to the by‑laws of the Rugby League.

White V Blackmore (1972): It was hold that it was insufficient to show that the plaintiff knew that jalopy car racing was dangerous, it was necessary to show that the plaintiff had consented to the specific risk that made that particular track dangerous. (?)

Tomlinson v Congleton Borough Council (2003 HL): In Lord Hoffmann’s view if visitor had chosen to indulge in an activity that was inherently dangerous it may be assumed that the accident had arisen not out of “the state of the premises” within s 1.

3. CONTRIBUTORY NEGLIGENCE

The OLA 1957 does not specically mention whether a visitor’ own lack of care can be taken into account in reducing damages. However cours have in a number of cases applied Law Reform (Contributory Negligence) Act 1945 eg Woolins v British Celanese Ltd (1966); Stone v Taffe (1974).

4. FREEDOM TO EXTEND, RESTRICT, MODIFY OR EXCLUDE DUTY OF CARE BY AGREEMENT OR OTHERWISE (Hereby it is excluded or restricted that...)

2 (1) of OLA 1957:

An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

Therefore,  s 2(1) of OLA 1957 specifically allows an occupier the freedom to extend, restrict, modify or exclude duty of care by agreement or otherwise

LIMITATIONS OF THE FOURTH DEFENCE

A. UCTA.

B. Third party {3(1) of OLA 1957}.

C. UTCCR 1999.

A. UCTA 1977

The Unfair Contract Terms Act 1977 has greatly restricted the occupiers ability to exclude his liability.

Section 1(1) of UCTA 1977:

“For the purposes of this Part of this Act, “negligence” means the breach--

(a) of any obligation, arising from the express or implied terms of a contract, to take reasonable care to exercise reasonable skill in the performance of the contract;

(b) of any common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);

(c) of the common duty of care imposed by the Occupiers’ Liability Act 1957 or the Occupiers’ Liability Act (Northern Ireland) 1957.

(2) This Part of this Act is subject to Part III; and in relation to contracts, the operation of sections 2 to 4 and 7 is subject to the exceptions made by Schedule 1.

(3) In the case of both contract and tort, sections 2 to 7 apply (except where the contrary is stated in section 6(4)) only to business liability, that is liability for breach of obligations or duties arising--

(a) from things done or to be done by a person in the course of a business (whether his own business or another’s); or

(b) from the occupation of premises used for business purposes of the occupier; and references to liability are to be read accordingly [but liability of an occupier of premises for breach of an obligation or duty towards a person obtaining access to the premises for recreational or educational purposes, being liability for loss or damage suffered by reason of the dangerous state of the premises, is not a business liability of the occupier unless granting that person such access for the purposes concerned falls within the business purposes of the occupier].”

So, the interpretation of  ss 1(1), 1(3) and 2(1) of UCTA provides that as far as premises used for business purposes are concerned the occupier is unable to exclude liability for death and personal injury.

Although UCTA applies only to “business” liability, the Act does not explain what this means, except that s14 states that ‘business’ includes a profession and the activities of any government department or local or public authority”.  As yet the courts have not provided a clear definition either; but the general view is that “business” connotes the carrying on of trade or other commercial activity with a view to making a profit.

Moreover if a business premises is used for recreational or educational purposes that will not be treated as business liability {s 1(3(b)}.

Exclusion of liability for other types of loss must satisfy the reasonableness test contained in s. 11 of the Unfair Contract Terms Act 1977.

B. THIRD PARTY

3. (1) of OLA 1957:

“Where an occupier of premises is bound by contract to permit persons who are strangers to the contract to enter or use the premises, the duty of care which he owes to them as his visitors cannot be restricted or excluded by that contract, but (subject to any provision of the contract to the contrary) shall include the duty to perform his obligations under the contract, whether undertaken for their protection or not, in so far as those obligations go beyond the obligations otherwise involved in that duty.”

Thus, where an occupier is bound by contract to permit persons who are strangers to the contract to enter or use the premises, he owes the commonduty of care and the occupier cannot by that contract restrict or exclude this duty.

Though it is unsettled before the court, it could be submitted that Contracts (Rights of Third Parties) Act 1999 would not affect the position.

C. UTCCR 1999

Where a visitor is a contractual entrant under a consumer contract the occupier’s ability to limit his liability to his visitor may be restricted by the Unfair Terms in Consumer Contract Regulations 1999.

LIABILITY TO TRESPASSERS

POSITION BEFORE BRB V HERRINGTON

Addie & Sons (Collieries) v Dumbreck (1929 HL): The only duty towards trespassers was not to injure them intentionally (deliberately) or recklessly.

POSITION AFTER BRB V HERRINGTON 1972

British Railway Board v Herrington (1972 HL): An occupier was under a duty to act humanely towards trespasser.

Subsequent case laws indicated that the duty was somewhat higher than the old common law duty owed to the trespasser but lower than the ordinary duty of care in negligence. However the position was not so clear-cut.

POSITION AFTER OLA 1984

1.(1) of OLA 1984:

“The rules enacted by this section shall have effect, in place of the rules of the common law, to determine-

(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and

(b) If so, what that duty is.”

Thus s 1 (1) OLA 1984 replaces any common law duty owed by the occupier to persons other than visitors with the duty provided by the Act.

In Revill v Newbury (1996 CA) it was held that occupier has the same meaning as the OLA 1957. So, presumably the visitor has also the same treatment.

SUBJECT-MATTER

Section 1 (8) OLA 1984:  Where a person owes a duty by virtue of this section, he does not, by reason of any breach of the duty, incur any liability in respect of any loss of or damage to property.

THREE CONDITIONS MUST BE SATISFIED FOR THE DUTY TO ARISE

S 1 (3) of on the Occupiers’ Liability Act 1984 provides:

“An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if-

(a) he is aware of the danger or has reasonable grounds to believe that it exists;

(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and

(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.”

The criteria mentioned by the Act appears as follows:

1. First two could be seen as subjective and

2. Third one could be treated purely as an objective. Professor Markesinis and Deakin (p 350, 2003).

Regarding first two Professor Lunney and Oliphant (p 534, 2003) says that these are partly subjective and partly objective.

White v St. Albans City and District  Council (1990 CA): It is enough that a reasonable man ought to know of the danger and likely presence of the trespasser from the facts of the case. In other words it appears that constructive knowledge is enough.

Swain v Puri (1996 CA): Section 1(3)(b) requires actual knowledge of facts which would lead a reasonable person to be aware of the danger or the presence of the trespasser. Constructive knowledge is not enough.

Professor Winfield (p 325, 2002) suggests that simple ignorance, though blameworthy is not enough though it is enough for the OLA 1957. In this sense OLA 1984 is more narrowly focused (p116, Steve Hedley 2002).

Tomlinson v Congleton Borough Council (HL 2003): Under the 1984 Act the Council could only be found to have a duty of care if they were aware of the danger (or had reasonable grounds to believe it existed), and that the Council knew that someone could be or was in the vicinity of the danger and finally, that the risk was such that they could be expected to offer some sort of protection against.

Revill v Newbery (1996 CA): Occupancy duty does not cover any activity (unless such as to affect the state of the premises) carried on the premises by the occupier or a third party with the occupier’s consent.

DEFENCES

1. Warning. 2. Exclusion of liability 3. Volenti non fit injuria.

1. WARNING

Section 1(5) of OLA 1984:

“Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.”

Cotton v Derbishire Dales District Council (1994 ): It was held that there was no duty to warn against dangers that are obvious.

Tomlinson v Congleton Borough Council (HL 2003): There is no duty to warn if the danger and risk of injury form diving into a shallow lake is obvious. Therefore, it is common sense that any additional warnings would have done no more than told the Claimant what he already knew.

The House found that any duty to warn against, and discourage people from taking a risk that could result in a serious injury, had to be balanced as against the social value of the amenity that gave rise to the risk, and the cost of preventative measures. In this instance, the majority of visitors to the park would enjoy the use of the beach and lake in such a way that there was no risk. The fact that people did not take any notice of the warnings not to swim did not create a duty to take other steps to protect them from a danger that was obvious. In short, just because the Council had taken the decision to put further protective measures in place, did not mean that they were under a legal duty to do so.

2. VOLENTI NON FIT INJURIA

Section 1(6) of OLA 1984:

“No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).”

Ratcliffe v McConnell (1998 CA): The Court of Appeal decided that a student who was seriously injured when he dived into a swimming pool, at 2 am when it was locked had consented to run the risk of injury, under s 1(6) of the 1984 Act.

Tomlinson v Congleton Borough Council (HL 2003): When an adult of full capacity voluntarily undertakes an activity that carries an obvious risk and/or is obviously dangerous, then that risk cannot be taken to be a risk within the scope of the Occupiers Liability Act of 1984 because the risk is not attributable to the “state of the premises”, but rather the free will of that individual in using the premises in such a way that they know to be dangerous. See the facts of Donoghue v Folkestone Properties Ltd (2003 CA).

3. EXCLUSION OF LIABILITY

The Occupiers’ Liability Act 1984 is silent on the question of whether the duty can be excluded with regard to trespassers. It has been argued that it is not possible to exclude a liability to a trespasser, as it is a minimal duty.