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Occupiers' Liability

 

Pre-1957 Law

Though the law of occupiers' liability has been regulated by statute since 1957, it is still necessary to understand the pre-existing common law as the concepts contained in the statute were developed first by the cases. The common law was complicated and not entirely just as it required the categorisation of entrants onto property into one of three or four categories. The duty of the occupier varied according to which category the entrant fell into. The main categories were mutually exclusive:

•  Invitee.

•  Licensee,

•  Trespasser,

In Robert Addie and Sons v Dumbreck [1929] AC 358, Lord Halisham stated that the highest duty was owed to a person who had been invited into the property in which case the occupier had to take reasonable care to ensure the premises were safe. Whereas if the entrant was a licensee (implied or express) the duty was lower: there was no need to take reasonable steps to ensure safety but the occupier had to remove any concealed danger which was known or ought to have been known. In the case of a trespasser, there was no duty at all except in respect of deliberate intent to harm or reckless disregard.

Category (3) can be broken down into two: contractual invitee (i.e. in a hotel) or invitee (i.e. customer in a shop), and the duty to make the premises safe is owed only to the contractual invitee. The status of the customer was addressed in Indermaur v Dames (1866) LR 1 CP 274 where it was said that his protection does not depend upon the fact of a contract being entered during the stay of the customer in the shop, but rather that the customer has come into the shop because of a tacit invitation by the shopkeeper. A customer is entitled to protection against unusual damage of which the occupier knows or ought to know. 'Invitee' is a legal term which means that the entrant is on the premises for a purpose in which the occupier has some concern, whether pecuniary, material or business interest. Thus inviting a friend to your house would not mean that they are an invitee but rather a licensee.

It was often the case that a trespasser would argue they were an implied licensee as this meant they were owed a higher duty of care. The rule was different for children who, according to the court, could know nothing of the law of trespass or license.

 

Occupiers' Liability Act 1957

A 1954 Law Commission report recommended that the distinction between licensees and invitees be abolished. The Commission suggested that the distinction between these two made little sense in real life, few people would consider they owed less duty to protect a friend visiting their house than a business colleague. As a result the 1957 Act was enacted; sections 1-4 and 5 are reproduced below.

1. Preliminary

(1) The rules enacted by the two next following sections shall have effect, in place of the rules of the 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 or to things done or omitted to be done on them.

(2) 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.

(3) The rules so enacted in relation to an occupier of premises and his visitors shall also apply, in like manner and to the like extent as the principles applicable at common law to an occupier of premises and his invitees or licensees would apply, to regulate-

(a) the obligations of a person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft; and

(b) the obligations of a person occupying or having control over any premises or structure in respect of damage to property, including the property of persons who are not themselves his visitors.

(4) A person entering any premises in exercise of rights conferred by virtue of 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.

2. Extent of occupier's ordinary duty

(1) 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.

(3) 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.

(4) 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.

(5) 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).

(6) 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.

3. Effect of contract on occupier's liability to third party.

(1) 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.

(2) A contract shall not by virtue of this section have the effect, unless it expressly so provides, of making an occupier who has taken all reasonable care answerable to strangers to the contract for dangers due to the faulty execution of any work of construction, maintenance or repair or other like operation by persons other than himself, his servants and persons acting under his direction and control.

(3) In this section "stranger to the contract" means a person not for the time being entitled to the benefit of the contract as a party to it or as the successor by assignment or otherwise of a party to it, and accordingly includes a party to the contract who has ceased to be so entitled.

(4) Where by the terms or conditions governing any tenancy (including a statutory tenancy which does not in law amount to a tenancy) either the landlord or the tenant is bound, though not by contract, to permit persons to enter or use premises of which he is the occupier, this section shall apply as if the tenancy were a contract between the landlord and the tenant.

(5) This section, in so far as it prevents the common duty of care from being restricted or excluded, applies to contracts entered into and tenancies created before the commencement of this Act, as well as to those entered into or created after its commencement; but, in so far as it enlarges the duty owed by an occupier beyond the common duty of care, it shall have effect only in relation to obligations which are undertaken after that commencement or which are renewed by agreement (whether express or implied) after that commencement.

5. Implied term in contracts.

- (1) Where persons enter or use, or bring or send goods to, any premises in exercise of a right conferred by contract with a person occupying or having control of the premises, the duty he owes them in respect of dangers due to the state of the premises or to things done or omitted to be done on them, in so far as the duty depends on a term to be implied in the contract by reason of its conferring that right, shall be the common duty of care.

(2) The foregoing subsection shall apply to fixed and moveable structures as it applies to premises.

(3) This section does not affect the obligations imposed on a person by or by virtue of any contract for the hire of, or for the carriage for reward of persons or goods in, any vehicle, vessel, aircraft or other means of transport, or by or by virtue of any contract of bailment.

(4) This section does not apply to contracts entered into before the commencement of this Act

Section 1 makes clear that the common law rules are repealed to the extent provided. Whether someone is an 'occupier' or an 'entrant' is still going to be decided by the common law definitions, only now there is no need to distinguish between contractual invitee, invitee or licensee. However, as the Act does not apply to trespassers the law relating to the definition of trespasser remains important. This is significant in respect of the cases involving children as they will not be regarded as trespassers meaning that they now must be afforded the same protection as someone invited onto the premises.

 

Who is an 'Occupier'

Wheat v E Lacon [1966] AC 552, D1 owned a pub which they let R & his wife manage. The agreement said that R had no ownership (i.e. no lease was created) and that D1 could enter the premises to check the state of repair. R's wife was permitted to take in lodgers. One of the lodgers, the Claimant's husband, was found dead at the bottom of some stairs. There was a light on the stairs but no bulb was in it. There was also a hand rail which ended at the third step. The Court of Appeal held that the defendants were not 'occupiers', and the case was appealed to HL. Lord Denning said that the word occupier under the Act meant the same as it did in the case law. The idea is simply that an occupier is someone who has sufficient control of the premises that they ought to realise that their failure to make the premises safe may result in injury to another person. Note how similar it is to the ordinary negligence test, indeed Lord Atkin in Donoghue v Stevenson considered some occupiers' liability cases. The occupier need not have a lease over the property (which gives the right of exclusive possession) but simply a high enough degree of control to make it fair to impose a DoC. Where there are multiple occupiers they are each liable for the full amount, meaning any one can be sued for the full amount and they in turn have a right to pursue the other defendants for their share of the compensation.

Lord Denning went on to discuss some specific examples. At the time of the case, a landlord was not liable for the safety of the building to third parties, though they were liable in respect of the tenant if the lease contains a clause which provides that the landlord will repair the building. If the landlord rented individual parts of the building but not the common staircase then the common area remained his responsibility. This was changed some time later by section 4 of the Act (which was repealed and replaced by s4(1) Defective Premises Act 1972) and now provides that where a landlord provides under the lease that they are responsible for maintenance or repair, they will owe a DoC to all entrants of the building. Where the owner of a building employs an independent contractor they will usually remain liable for the safety of the premises. So, turning to the present case, the HL asked whether the defendants were occupiers. They were occupiers of the ground floor bar area but were they occupiers of the private part of the building where the lodgers lived? They had not leased the private part but licensed it and retained the right to do repairs. The HL concluded that they did have sufficient control to be considered occupiers. However, the HL dismissed the appeal on the grounds that the duty had not been breached. Lord Morris stated that while a person may be an 'occupier' it is necessary to consider the "nature and extent of the duty". It was held that a duty like changing a light bulb was the responsibility of the people who lived in the private part, the Claimants, and not of the Defendants.

 

The Common Duty of Care

Section 2(2) defines the duty of care as,

"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"

The question of what is reasonable is, as with ordinary negligence cases, dependent on the likelihood of the harm, the gravity of the harm, difficulty of preventing it. It is also important to consider the purpose for which the visitor is on the premises. A higher standard may be owed to someone like a hotel guest who stays there day and night than a dinner guest who is only there for a short period. It is more likely that the former will end up being hurt by a danger. The status of the entrant (i.e. invitee or licensee) no longer determines the standard of care owed but it is a relevant factor in to be considered. Sections 2(3) & (4) provide some factors for consideration where applicable.

In addition, it necessary to show that the injury is related to the state of the premises, as opposed to being the result of an unrelated activity. However, this is not always an easy distinction. In Cunningham v Reading Football Club [1992] PIQR P141 a football club was liable for not taking steps to ensure that pieces of the concrete could not be ripped up and thrown at people.

 

Children

As mentioned above, the standard in respect of children is different as children will not always appreciate that they should not enter the premises. Section 2(3)(a) of the Act states that "an occupier must be prepared for children to be less careful than adults". Thus, a sign which warns of danger maybe sufficient for an adult but of no use to a 2 year old child. The standard remains, however, that of reasonable care and it must be remembered that it will be very difficult to make most premises completely safe for children.

In Phipps v Rochester Corporation [1955] 1 QB 450 , a five year old and his seven year old sister were walking across an open field which was part of a building site being developed by the Defendant. A deep trench had been dug which would have been obvious to an adult. The five year old fell in and broke his leg and an action was brought against the developer. The trial judge accepted that the trench was a danger to a small child. Devlin J said that it is reasonable to assume that responsible guardians will take care of their children and therefore if D will usually have discharged their duty by ensuring that any dangers would have been obvious to an adult, as one can reasonably expect any child to be accompanied by an adult. However, the occupier still has the responsibility of finding out about who may be using the land and the habits of the local neighbourhood. If the occupier ought to have anticipated that children may enter their land unaccompanied they will have to take steps against it. In the present case there was no evidence that children frequently went unaccompanied on the premises and the premises were fenced. The court concluded that the child was on the premises as a licensee (as opposed to a trespasser) but that the D had discharged its duty by making the trench reasonably discoverable by an adult. There was no special reason why the d should have anticipated that small children would enter the premises unaccompanied.

Devlin J noted that contributory negligence is possible but that, regardless of any blame on the Claimant, the Defendant has an independent duty to ensure that the premises are reasonably safe. So it is possible in cases where both the parents and Defendant are liable that damages will be reduced.

 

Special Risks Associated with Particular Callings

An occupier does not have to warn people involved in specialised trades of the risks associated with those trades because, according to section 2(3)(b), such a person will appreciate and guard against those special risks. In Roles v Nathan [1963] 1 WLR 1117 the claimants were the widows of two chimney sweeps who had been killed by carbon monoxide while cleaning a chimney. The men had been repeatedly warned about the risks and had been told to take precautions against them, which they did not do. Lord Denning stated that an occupier can reasonably expect a skilled professional to be aware of the risks of their own trade. In Neame v Johnson (unreported 24/11/1992) the Court of Appeal held that the risk of falling over books or papers left on the floor of residential accommodation was a risk of being an ambulanceman.

However, the fact that the premises are a risk only to a person pursuing a calling does not necessarily mean that it is incidental to his work within the meaning of s2(3)(b). In Williams v Department of Environment QBD 30/11/1981, it was held that the risk of injury from an exposed spindle in a boiler was not an incidental risk to a heating engineer called to repair a boiler. This risk was not considered incidental to his profession. Another important question to ask is if the premises are being used in a way which they ordinarily would be used. If the professional is using the premises in an unusual way, they are responsible for managing the risks: West v T Clarke QBD 20/5/1982.

 

Warnings

It is possible to discharge the common duty of care by giving a warning about the dangers. Section 2(4)(a), however, makes clear that the warning must be - in all the circumstances - enough to enable a visitor to be reasonably safe. The origin of this clause is in the pre-1957 HL case London Graving Dock Horton [1951] AC 151. The Claimant welder was injured when some staging he was working on fell. He had complained to the D about it but D did nothing. It was accepted that C was an invitee and thus there was a duty to warn of unusual dangers. The staging was an unusual danger but as C had full warning of it the D was not liable. This can be contrasted with the volenti and exclusion of liability defences in negligence where knowledge is insufficient, real acceptance is required. Section 2(4)(a) now makes clear that the warning must enable a visitor to be reasonably safe. Whether the visitor is reasonably safe doesn't just depend on the knowledge of the visitor but the size of the risk, cost of rectifying it, the reason for the visit etc. It is not necessary, however, to put up a sign warning of an obvious risk: Darby v National Trust (unreported 29/1/2001).

 

Independent Contractors

Section 2(4)(b) provides that an occupier discharges their duty where:

•  The breach was caused by faulty execution of an act of construction, maintenance or repair by and independent contractor,

•  It was reasonable for the occupier to employ the contractor to undertake the task in question,

•  The occupier took reasonable steps to ensure the contractor was competent and the work was properly done.

Thus even if a contractor is negligent, the occupier can escape liability as long as they took reasonable care in selecting the contractor. In Haseldine v Daw [1941] 2 KB 343, the Claimant was injured when the lift he was in crashed to the ground. He sued the landlord (who was occupier of that part of the premises). The landlord had recently entered a contract for maintenance of the lift with a competent company. It was held that the landlord did all that a reasonable person could do, as he himself had no technical knowledge he had to rely on the skills of the company. This was so even though the occupier had been told by the company that the lift was old and that it was best to replace it, but not that it was unsafe. Of course, as has been said in later cases, the law cannot ask the occupier to second guess the opinion of a specialist. The situation would be different where the occupier had some reason to doubt the quality of the contractor or work. Indeed it has been suggested that this duty extends to checking whether the contractor has insurance: Gwilliam v West Hertfordshire Hospital [2002] 3 WLR 1425, the context however was of a public charity event. Whether a simple homeowner would have the same duty is not so clear. Simply asking whether they are insured, rather than actually asking to see proof, is most likely sufficient in most cases.

 

Exclusion of Liability and Volenti

Section 2(1) of the Act allows an occupier to extend, restrict, modify or exclude his duty of care 'in so far as he is free' to do so. The main restriction would be in s2 of UCTA, which requires that exclusions of liability are reasonable.

Section 2(5) allows the occupier to raise the volenti non fit injuria principle. The application of this defence is the same as it is for ordinary negligence i.e. need more than just knowledge.

 

1984 Act

The term 'trespasser' is broad and while it includes any uninvited visitor this could be a burglar to a child. Dissatisfaction with the very low level of protection afforded to trespassers led to children being classified as implied licensees, as we have seen above. Also, where the injury was caused by an activity rather than the state of the premises themselves, a Claimant could rely on ordinary negligence principles (was the presence of the trespasser foreseeable?).

However, as to liability for the state of the premises, the HL said in British Railways Board v Herrington [1972] AC 877 that no duty is owed to a trespasser unless the occupier actually knows of the facts which constitute a serious danger. There is no duty to make enquires or inspect the land but if they know the serious danger they should take reasonable steps to help the trespasser avoid it. Some years later the Law Commission reported on this area and this led to the 1984 Occupiers' Liability Act.

Section 1(3) provides that an occupier owes a duty to a non-visitor if:

•  He is aware of the danger or has reasonable grounds to believe it exists,

•  He knows or had grounds to believe that the other is in the vicinity of the danger or that he may come into the vicinity,

•  The risk is one which, in all circumstances, he may reasonably be expected to offer protection.

Note how the question is not whether the occupier ought to have known, the test is related strictly to his actual knowledge, which includes 'shut-eye' knowledge i.e. not wanting to look because they know they will see something dangerous. Taking steps to stop trespassers entering the premises is not evidence of actual knowledge that a trespasser is in the vicinity: White v City of St Albans (2/3/1990).

Subsection (c) is an objective test. Where the occupier has taken all reasonable steps to prevent someone entering the premises they will not be liable even if subsections (a) and (b) are satisfied: Platt v Liverpool City Council [1997] CLY 4864. Similarly, a lower standard will be owed to a burglar than to a child trespasser. A warning sign may be sufficient in certain circumstances to discharge the duty. This is less likely where the trespassers are children. There is also a difference between a general notice restricting access (i.e. 'authorised persons only') and one which specifically makes clear that there is a danger. In some cases it can be argued that leaving a notice was all that the occupier could reasonably do. If a warning is being ignored by people on the premises (i.e. don't swim in the lake) then the occupier may need to take further steps: Tomlinson v Congleton Borough Council [2003] 2 WLR 1120.

Subsection (6) makes clear that no duty is owed in respect of risks voluntarily undertaken. Subsection (8) makes clear that the occupier has no liability in respect of damage to property, which will be governed by common law.

 

 

 

Note this case is pre-1957 but the reasoning remains very valid.