Occupiers' Liability PDF

7 Occupiers’ Liability LEARNING OUTCOMES When you have completed this chapter, you should be able to: explain all the elements which a visitor needs to prove to establish a claim under the Occupiers’ Liability Act 1957 against an occupier of premises;...

7 Occupiers’ Liability LEARNING OUTCOMES When you have completed this chapter, you should be able to: explain all the elements which a visitor needs to prove to establish a claim under the Occupiers’ Liability Act 1957 against an occupier of premises; understand how the 1957 Act requirements fit into the normal negligence case analysis structure (see Chapter 2); explain all of the elements which a trespasser needs to prove to establish a claim under the Occupiers’ Liability Act 1984 against an occupier of premises; understand how the 1984 Act requirements fit into the normal negligence case analysis structure (see Chapter 2); apply the law accurately in analysing a set of facts. 7.1 Introduction ‘Occupiers’ liability’ is sometimes referred to as a ‘special liability’ regime because statutory regulation combines with common law negligence to produce a package of obligations imposed on, in this case, the occupier of premises. Although claims against occupiers are brought within the framework of negligence, statute (namely the Occupiers’ Liability Act 1957 (the 1957 Act) and the Occupiers’ Liability Act 1984 (the 1984 Act)) has intervened to provide most of the applicable law. The 1957 Act governs an occupier’s duties to ‘visitors’, and the 1984 Act governs an occupier’s duties to others (mostly trespassers). One issue that is common to both Acts is the scope of potential liability. Both Acts cover ‘dangers due to the state of the premises’. The examples below consider what this means and how claims under the Acts are distinguished from claims in negligence. Examples X, a visitor to Y’s house, is injured when: Covered by 1957 Act? 1. She falls through a broken floorboard in Y’s house. Yes. 2. She slips on some oil spilt on Y’s garage floor. Yes. 3. She is hit by Y’s car as Y reverses out of his garage. No. 155 Tort Section 1(1) the 1957 Act covers ‘dangers due to the state of the premises’. Scenarios 1 and 2 above clearly fall within this. The wording of s 1(1) also covers ‘things done or omitted to be done on [the premises]’. If interpreted literally, this would include any activity carried out on an occupier’s premises. It is generally accepted that this was not the intention of Parliament, and so activities such as scenario 3, which have nothing to do with the state of the premises, fall outside the 1957 Act. Instead such an incident would be governed by common law negligence. 7.2 Liability of occupiers to visitors Someone seeking to prove an occupier’s liability to a visitor must establish a number of important factors. To fall within the 1957 Act, a claimant would need to: establish that they have suffered loss due to the state of the premises; identify the occupier; prove that they are a visitor; establish that the occupier failed to take reasonable care for the visitor’s safety. The next section considers who would constitute an occupier for these purposes. 7.2.1 Who is an occupier? Under both the 1957 and 1984 Acts, the duties owed are imposed on the ‘occupier’ of the premises. Neither Act provides a definition of an occupier. It is necessary, therefore, to look at case law for assistance. In the case of Wheat v E Lacon & Co Ltd 1 All ER 582, the managers of a public house were allowed by the defendants, the owners, to take paying visitors, who were accommodated in part of the premises labelled ‘Private’ of which the managers were the licensees. The claimant’s husband, while a paying visitor, was killed by a fall from a staircase on the ‘private’ part. The case establishes that the most important characteristic of an occupier is the element of control they have over the premises. An occupier is defined as someone who has ‘a sufficient degree of control over premises’. Given that the test is one of control, someone who is not an owner of the premises can still have sufficient control over them to be an ‘occupier’ for the purposes of the Acts. In Wheat v E Lacon & Co Ltd, the managers of the pub were only lodgers in the rooms above, and yet they were found to be occupiers for the purposes of the 1957 Act. Where a landlord lets flats in a block, but retains control of the common staircase, the landlord will be regarded as ‘occupier’ of that staircase. The landlord will have sufficient control over the common staircase to be an ‘occupier’ of it. There can be more than one occupier of the same premises, as Wheat v E Lacon & Co Ltd illustrates. Both the brewery company and the managers were held to be occupiers of the relevant part of the premises where the accident occurred. 156  Occupiers’ Liability An independent contractor, working on another person’s premises, could also constitute an ‘occupier’ while on the premises (along with the owner of the premises), having the required degree of control over the area where they are working. To summarise, therefore, the definition of an ‘occupier’ is widely interpreted, and the test which the courts will apply is one of occupational control. However, the control need not be exclusive –​there may be more than one occupier of the same premises, eg contractors undertaking a large building development would be occupiers for the duration of the building work. Whether a contractor, like a decorator painting a house, would have sufficient control to constitute an ‘occupier’ would be a question of degree. 7.2.2 Who is a ‘visitor’? The 1957 Act imposes a duty on occupiers towards their ‘visitors’. Under the 1957 Act, visitors are those persons who have express or implied permission to be on the occupier’s land. For the avoidance of doubt, the 1957 Act makes it clear that this includes persons who enter under the terms of a contract and persons who enter in order to exercise any right conferred by law. A visitor who exceeds their express or implied permission becomes a trespasser and will potentially fall under the Occupiers’ Liability Act 1984, which deals with entrants who do not have permission. Example 1 Guests who are invited to dinner by a friend. The dinner guests are lawful visitors because they have the occupier’s express permission to be on the premises. Example 2 A sales representative who walks up the front drive to a house, ignoring a large sign at the gate which states: ‘No canvassers or salespeople please.’ A person who enters to communicate with the occupier normally has the occupier’s implied permission to enter. However, the occupier here has revoked permission by displaying the sign at the gate. The sales representative is, therefore, a trespasser. Example 3 A hotel guest who enters a door marked ‘Staff Only’. The hotel guest has exceeded the occupier’s permission by entering a part of the premises where they are expressly forbidden to go. The hotel guest is, therefore, a trespasser when entering the door. Example 4 A police officer who enters premises to conduct a search. They have a valid search warrant. The police officer is a visitor under the 1957 Act if they enter in the exercise of a right conferred by law. 157 Tort Example 5 A customer in a shop who goes behind the counter to steal from the till. In going behind the counter, the customer has exceeded the occupier’s permission. The occupier’s permission extends neither to this part of the shop nor to this purpose. Example 6 A teenager who has managed to see a film at a cinema without paying. The teenager is a trespasser because the occupier has permitted the teenager to be on the premises only if they have paid the entrance fee. In some of these cases (eg e­ xample 5) the entrant would start as a visitor, and therefore fall within the 1957 Act. Once they exceed their permission, their status would change. If loss or injury resulted, any claim would then need to be brought under the 1984 Act. The duty imposed by the 1957 Act is, as we have seen, imposed on the occupier of premises. We now move on to consider the definition of ‘premises’ for the purposes of the 1957 Act. 7.2.3 Premises The definition of premises in s 1(3)(a) of the 1957 Act is very wide. It includes open land as well as fixed or moveable structures. It also specifically includes vessels, vehicles or aircraft. 7.2.4 The common duty of care The duty owed by an occupier to visitors under s 2(1) of the 1957 Act is called the ‘common duty of care’. This is because the duty is the same for all visitors (and not a reference to the common law and negligence). Under s 2(2) of the 1957 Act, the duty is to take such care as is reasonable in all the circumstances to see that the visitor is reasonably safe in using the premises for the purpose for which they are permitted to be there. You should note that the duty is directed towards the visitor’s reasonable safety, rather than towards the safety of the premises. 7.2.5 Breach of the common duty of care The occupier owes the visitor the ‘common duty of care’, ie to take such care as is ‘reasonable’. This means that the standard of care expected of an occupier is the same as that in an ordinary claim in negligence, ie an occupier must reach the standard of the reasonable occupier and will, therefore, be in breach of duty if they have failed to reach this standard. All the circumstances of the case must be considered under s 2(2) of the Act in deciding what ‘reasonable care’ is. Given the similarity with a claim in negligence, a court will take into account similar factors when assessing the standard of care expected of the ‘reasonable occupier’. These factors include: nature of the danger; purpose of visit; seriousness of injury risked; magnitude of risk; cost and practicability of steps required to avoid the danger; how long the danger had been on the premises; any warning of the danger; type of visitor. 158  Occupiers’ Liability The type/​nature of the visitor is specifically mentioned in s 2(3) the 1957 Act as a factor which is relevant in determining the standard of care expected of an occupier. In addition, s 2(3) of the 1957 Act singles out two types of visitor for ‘special’ treatment. Child visitors are singled out as requiring a higher degree of care from the occupier than other visitors. They cannot be expected to appreciate dangers which would be obvious to an adult. (This is, of course, also true in negligence claims.) The other category of special visitor singled out by s 2(3) of the 1957 Act are visitors coming onto the premises to exercise their skills. The effect of the 1957 Act is that in the case of skilled visitors, an occupier can reasonably expect them to appreciate and guard against any risks which are part and parcel of their job. This has the effect of lowering the standard of care expected of the occupier in relation to such visitors. The next two sections consider these special categories of visitor in more detail. 7.2.5.1 Children An occupier must be prepared for children to be less careful than adults. In some situations involving children, there are other specific considerations which may be relevant in assessing the standard of care. The role of ‘allurements’ and parental responsibility are considered in the cases below. In Glasgow Corporation v Taylor 1 AC 44, the father of a boy, aged 7, who died from eating the berries of a poisonous shrub growing in some public gardens in Glasgow, sued the Corporation as the proprietors and custodians of the gardens for damages for the death of his son. The father argued that the defendant knew that the berries were a deadly poison, but took no precautions to warn children of the danger of picking the berries of the shrub or to prevent them from doing so; and that there was no adequate notice in the gardens warning the public of the dangerous character of the shrubs. The court held that the poisonous berries represented a concealed danger to a 7-​year-​old. It was decided that, because the shrub was a temptation (‘allurement’) to such a young child, the occupier should have taken additional precautions. The defendant should have adequately warned of the danger, or fenced off the shrub. The standard of care would have been lower as regards an adult, who would be expected to be aware of the dangers posed by red berries from an unidentified shrub. As a result, the occupier might not have been in breach of duty as regards an adult. Where the danger is an allurement, an occupier must therefore do even more to safeguard a child’s safety than where it is not. This has the effect of further increasing the standard of care. In the case of very young children, even the most innocuous objects can represent a potential danger. However, the courts have considered that parental responsibility can reduce or eliminate the liability of occupiers for the harm suffered to very young children. In Phipps v Rochester Corporation 1 QB 450, a boy, aged five, while out blackberry picking with his sister, aged seven, walked across a large open space of grassland, part of a building site on which a housing estate was being developed by the defendants. A long deep trench had been dug in the grassland for the purpose of laying a sewer. The boy fell in the trench and broke his leg. The children lived, with their parents, in a house in a road adjacent to the open grassland. Children were in the habit of using the land, and the defendants had taken no steps to prevent them from so doing, but there was no evidence that little children frequently went there unaccompanied. 159 Tort The court held that the crucial issue was the boy’s age and the role of parental responsibility. On the facts, it was held that a prudent parent would not have allowed two small children to go alone to the building site. The defendant corporation was entitled to assume that parents would not behave in this way, and, therefore, the corporation escaped liability as it had reached the standard to be expected of a reasonable occupier in all the circumstances (ie the premises would have been reasonably safe for a very young child accompanied by an adult). The principle laid down in the Phipps case is important. Occupiers will have complied with their duty to a very young child visitor if they make their premises reasonably safe for a child who is accompanied by the sort of guardian by whom the occupier is entitled, in all the circumstances, to expect the child to be accompanied. However, you should note the Court of Appeal decision in Bourne Leisure Ltd v Marsden EWCA Civ 671. There, a 2½-​year-​old boy drowned in a pond situated within the boundaries of a holiday park where he was staying with his parents. The pond was surrounded by a 2-​foot fence over which the boy had climbed. His parents argued that, given the attraction of such a pond to young children, the owners of the park should have done more to warn the parents of the danger of the pond. The Court of Appeal, deciding in favour of the holiday park, held that as the pond was an obvious feature of the park and the danger it presented to small, unaccompanied children was equally obvious, the park had not breached the common duty of care imposed by the 1957 Act. 7.2.5.2 Skilled visitors In the case of skilled visitors, the occupier’s duty is modified slightly by s 2(3) of the 1957 Act, in that the occupier is entitled to expect such a visitor to appreciate and guard against any special risks which are part of the visitor’s job. Example 1 Woyjeck, a window cleaner, is injured in a fall while cleaning the outside of Harriet’s windows. A window handle, which he is using to support himself, is loose and comes off in his hand. The risk of such a fall was a special risk ordinarily incidental to the work of a window cleaner. Harriet could, therefore, reasonably expect Woyjeck to appreciate and guard against such a danger. Example 2 James, a window cleaner, is injured on a defective stair when going upstairs in Harriet’s house to clean the inside of her windows. In this situation, the relevant risk is not one that is ordinarily incidental to the job of a window cleaner, and, therefore, the occupier is not entitled to expect such a visitor to appreciate and guard against it. 7.2.5.3 Escaping breach by warnings An adequate warning will mean that the occupier has complied with their common duty of care. The occupier will not, therefore, be in breach of duty. However, to have this effect, the warning must be ‘adequate’. 160  Occupiers’ Liability The mere fact that a warning was given will not necessarily suffice to enable the occupier to escape liability. Under s 2(4)(a) of the 1957 Act, the crucial issue is whether the warning given by the occupier was sufficient to enable the visitor to be reasonably safe. This will be a question of fact. The most important factors for a court to consider in deciding the adequacy or otherwise of a warning are: The nature of the warning, ie how specific it was. Did it actually mention by name the relevant danger, or was it just a general warning? For example, compare ‘Danger –​Slippery Floor’ with ‘Danger’. The former type of warning is more likely to be adequate than the latter. The nature of the danger, ie whether it was a hidden or an obvious danger. If a hidden danger, the warning will need to be more specific. A general warning (eg ‘Danger’) is unlikely to be adequate in such a case. The type of visitor, ie whether the injured visitor is an adult or a child. A written warning to a child may not be enough to enable them to be reasonably safe. Example 1 Alice owns an old stately home which she opens to the public during the summer months. The steps leading down to the dungeons are steep and slippery, and there is no handrail. A warning notice is displayed at the top of the steps stating ‘Danger’. Bill, an American tourist, slips on a step and is injured when he falls. The warning should have been more specific as to the nature of the danger. Given the lack of any handrail, it was not sufficient to enable Bill to be reasonably safe. (Even if the warning had mentioned the particular danger, it probably would not have enabled Bill to be reasonably safe due to the absence of the handrail in any event.) Example 2 Boris, a Russian tourist, is injured in the armoury room of Alice’s stately home when he touches a display of armour and it falls on him. A notice by the display reads ‘Do not touch’. The notice does not expressly warn of any danger. It is simply an instruction to visitors. Even if the notice had contained a warning, could Boris read English? If not then, without a translation, the notice would not allow Boris to be reasonably safe, no matter how clearly expressed in English. As Alice opens her stately home to the public then the first question is whether she should reasonably anticipate Russian tourists who cannot read English. The answer has to be yes. So having only a written notice in English might not be sufficient. This does not necessarily mean that the occupier must have a warning in every language, but if it was in all the major languages then reasonable care might have been taken. More likely the occupier would have a picture/illustration that warns about touching the exhibits (a hand with a cross through it etc); or a physical barrier (a rope around truly dangerous exhibits). Example 3 Doris visits the ladies’ toilets of Alice’s stately home and is scalded by the water from the hot tap when washing her hands. There is a sign on each washbasin clearly stating ‘DANGER VERY HOT WATER’. Although Doris noticed the sign, she could not be bothered to put on her reading glasses, and therefore could not read what it said. The warning would appear to be adequate. Doris, having seen the sign, should have put on her glasses to read what it said. Had she done so, she would have been safe. The warning was, therefore, sufficient to enable her to be reasonably safe. 161 Tort An adequate warning of a danger will enable an occupier to escape liability to a visitor injured by the danger. However, an occupier need not warn of every danger –​for example, there is no obligation to warn of a danger which would be obvious to the particular visitor (eg the danger of drowning in a pond would be obvious to an adult visitor). It is necessary to distinguish between a warning notice on the one hand, and a notice which purports to restrict or exclude an occupier’s liability on the other. Consider the two notices below, both of which relate to refurbishment work which is taking place in a hotel. Example 4 ‘The management accepts no liability for any injury or loss sustained by a visitor as a result of the current refurbishment of the hotel lobby.’ Example 5 ‘Notice to all visitors. The lobby of the hotel is currently being refurbished. We request you to take extra care when crossing the lobby as the floor may be rough and uneven.’ The notice in e­ xample 4 is an exclusion notice; the notice in e ­ xample 5 is a warning notice. The significance of this distinction is that an occupier may comply with their common duty to a visitor by a warning notice. In such a case the visitor will be unable to prove breach of duty. In contrast, an exclusion notice may operate as a potential defence to a claim once the visitor has established breach of the common duty of care. Exclusion notices are considered in the section covering defences below. 7.2.5.4 Independent contractors Often an occupier may engage an independent contractor (such as an electrician) to carry out work on the occupier’s premises. In such cases, provided the occupier satisfies the three requirements to be found in s 2(4)(b) of the 1957 Act, the occupier will have discharged their common duty of care. If injury then results from the faulty workmanship of the contractor, the occupier is not liable (instead the visitor must look to the contractor for recompense). The three requirements under s 2(4)(b) of the 1957 Act are that, in all the circumstances, the occupier had acted reasonably in: entrusting the work to an independent contractor; and had taken such steps (if any) as they reasonably ought in order to satisfy themselves that the contractor was competent; and had taken such steps (if any) as they reasonably ought in order to satisfy themselves that the work had been properly done. This ability to discharge the occupier’s duty of care does not apply to all types of work done by an independent contractor. The ‘work’ must be ‘work of construction, maintenance or repair’. It will be rare for a court to find that an occupier has acted unreasonably in employing an independent contractor. In a modern society there are very few tasks that you would expect an occupier to have to carry out personally. The more technical the work, the more reasonable it will be to employ an independent contractor. The practical steps occupiers can reasonably take to satisfy themselves that their contractors are competent include obtaining references and making enquiries locally and of Trade Associations to ascertain the contractor’s competence. 162  Occupiers’ Liability The requirement that the occupier must have taken reasonable care to check that the contractor’s work was done properly is considered in the two cases below. In Haseldine v Daw & Son Ltd 3 All ER 156, the landlord of a block of flats engaged a highly reputable firm of hydraulic engineers to maintain the lifts. A visitor was injured when a lift malfunctioned due to the contractor’s negligent maintenance. The court found that the servicing of a lift was work of a technical nature which an occupier could not reasonably check themselves. Accordingly, the occupier would discharge their duty by entrusting the work to the contractor without the need to check the work for themselves. In Woodward v The Mayor of Hastings KB 174, a child at a school was injured when they slipped on a step which a cleaner had negligently left in an icy condition. An occupier is only expected to make such checks as are reasonable in all the circumstances of the case. Since no specialist knowledge was required to recognise that an icy step is dangerous, the court decided that, by not checking the contractor’s work, the occupier had not discharged their duty of care and was liable. In summary, where an occupier employs an independent contractor, the key question is whether the occupier has done all that reasonable care requires of them. If they have then they will not be in breach of duty. 7.2.6 Causation and remoteness of damage Having considered the issue of duty of care and breach of duty, the issues of causation (including intervening acts) and remoteness apply to all torts, and a claim under the 1957 Act is no exception. The rules covering these issues are considered in Chapter 3. 7.2.7 Defences There are a few arguable defences open to an occupier who has breached their common duty of care. 7.2.7.1 Voluntary assumption of risk/​volenti non fit injuria Section 2(5) of the 1957 Act preserves the common law defence of voluntary assumption of risk. Example A notice displayed by an occupier at the entrance to their premises reads: ‘ALL VISITORS ENTER AT THEIR OWN RISK.’ A court will apply exactly the same principles as for voluntary assumption of risk under the common law (considered in Chapter 3) in deciding whether the notice should succeed under the 1957 Act. The claimant must therefore know of the precise risk that causes the injury and show by their conduct that they willingly accepted the legal risk. 163 Tort The wording of the notice in the example above is not specific enough to enable the occupier to rely on it. It does not make visitors aware of the precise nature of any risk before they encounter it. 7.2.7.2 Exclusion of liability Occupiers may discharge the common duty of care owed to their visitors by adequately warning of the relevant danger on their premises. The situation under consideration here, however, is the case of an occupier who has not discharged the duty (ie who has breached the common duty of care) and who is seeking to rely on an exclusion clause or notice to escape liability. Section 2(1) of the1957 Act permits an occupier to exclude their liability but is subject to the same requirements as those considered in Chapter 4. They are: Reasonable steps must have been taken to bring the exclusion notice to the claimant’s attention before the tort was committed. The wording of the notice must cover the loss suffered by the claimant. The ability of a defendant to exclude liability is further limited by the Unfair Contract Terms Act 1977 (UCTA 1977) and the Consumer Rights Act 2015 (CRA 2015). UCTA 1977 controls attempts by business occupiers to exclude or restrict their liability for negligence to non-​consumers (ie other businesses). The definition of ‘negligence’ for the purposes of UCTA 1977 includes a breach of the common duty of care imposed by the 1957 Act. Private occupiers, however, are not subject to the provisions of UCTA 1977 or the CRA 2015. The CRA 2015 controls attempts by traders to exclude or restrict liability for negligence (defined under the CRA 2015 to include the common duty of care under the 1957 Act) to consumers. Consumers are defined under the CRA 2015 as individuals acting for purposes that are wholly or mainly outside the individual’s trade, business, craft or profession. The 1957 Act must, therefore, be read subject to the provisions of UCTA 1977 and the CRA 2015 where business occupiers or traders are concerned. Example 1 A business delegate at a conference centre sustains personal injury when a defective shutter falls on her. Example 2 A business delegate’s car is damaged in a conference centre car park when a dangerous wall falls on to it. Example 3 A business delegate’s car is damaged in a conference centre car park when a dangerous wall falls onto it, and the owner of the car is killed when the wall collapses on the car. Example 4 A business delegate’s valuables are stolen from a conference centre safe because a conference centre employee carelessly leaves the door to the safe open. 164  Occupiers’ Liability Any exclusion of liability as regards situations in e ­ xample 1 and e ­ xample 3 above is subject to UCTA 1977, given that the conference centre is a business occupier and the claimants are non-​consumers. In accordance with UCTA 1977, any attempt to exclude liability for negligence causing death or personal injury is void. Consequently, the conference centre would be unable to exclude its liability for the business delegate’s injuries in e ­ xample 1 and the business delegate’s death in e ­ xample 3. As regards situations above in e­ xample 2 and e ­ xample 4, and in e ­ xample 3 for the damage to the car, an occupier can exclude liability under UCTA 1977 for other loss, provided it is reasonable, in all the circumstances, for the occupier to rely on the exclusion term/​notice. In considering the issue of reasonableness, the court would have regard to the factors, such as bargaining power and the practical consequences for the parties, as set out in Smith v Eric S Bush, considered in Chapter 4. To conclude on the issue of exclusion, business occupiers will be subject to the control of UCTA 1977 and will be unable to exclude their liability for a non-​consumer visitor’s death or personal injury. They may, however, be able, under UCTA 1977, to exclude liability for damage to a visitor’s property if a court considered it was fair and reasonable to allow them to do so. Traders will be subject to the controls under the CRA 2015 and will be unable to exclude liability for a consumer visitor’s death or personal injury. They may exclude liability for damage to a consumer visitor’s property if they can satisfy the fairness test under the CRA 2015. Private occupiers, on the other hand, are not subject to the control of UCTA 1977 or the CRA 2015. Ordinary householders can, therefore, display a prominent notice at the entrance to their property excluding their liability to visitors. 7.2.7.3 Contributory negligence Where visitors suffer loss due partly to an occupier’s breach of the common duty of care and partly due to their own carelessness, their damages will be reduced for contributory negligence. The normal principles of this partial defence will apply (considered in Chapter 3). 7.3 Liability of occupiers to trespassers We have seen that the common duty of care owed by an occupier under the 1957 Act is owed only to ‘visitors’, a term which excludes trespassers. Lord Dunedin (in the case of Robert Addie & Sons (Colliery) Ltd v Dumbreck AC 358) defined a trespasser as ‘one who goes upon land without invitation of any sort and whose presence is either unknown to the proprietor, or, if known, is practically objected to’. Although this case pre-​dates the 1984 Act, it remains useful in understanding what ‘trespasser’ means. The law relating to trespassers is to be found in the Occupiers’ Liability Act 1984 (the 1984 Act). The duty laid down by the 1984 Act is, as with the 1957 Act, imposed on an ‘occupier’ of ‘premises’, and both these terms have the same meaning as for the 1957 Act (see 7.2.1 and 7.2.3 above). 7.3.1 To whom is the duty owed? The duty under the 1984 Act is owed to people other than visitors. Under the1957 Act, a visitor is someone who has the occupier’s express or implied permission to be on the premises. The 1984 Act therefore applies to persons who do not have such permission, ie trespassers. As being a trespasser is determined by whether the entrant does in fact have express or implied permission, it does not matter that the entrant is unaware that they are trespassing. 165 Tort Example Bryan is out for a walk in the country. He inadvertently strays onto land belonging to Janice. Bryan is a trespasser as he does not have Janice’s permission to be on Janice’s land. It is irrelevant that Bryan may believe that he is still on a public path. An entrant can initially enter premises as a ‘visitor’ but then become a ‘trespasser’, either by going onto a part of the premises to where their permission does not extend, or by doing something outside the scope of their permission (including staying on the premises for a longer time than they were given permission for). In addition to trespassers, the 1984 Act covers three other types of entrants. They are: people entering under an access agreement or order under the National Parks and Access to the Countryside Act 1949; people who enter land pursuant to the Countryside and Rights of Way Act 2000 (the duty owed to this category of person is limited by the 1984 Act); people who exercise private rights of way over land. Under the 1984 Act, a person using a public right of way (a highway) is excluded from protection under the Act. Such persons are not within the definition of a visitor for the purposes of the 1957 Act either, and therefore are outside the statutory framework of occupiers’ liability altogether. Some highways are, however, maintained at public expense. Users of such highways are protected by a duty of care imposed by the Highways Act 1980. Trespassers are clearly the most significant of these categories, and therefore the remainder of this section will use the term ‘trespasser’ when referring to the person to whom the duty is owed under the 1984 Act. 7.3.2 Existence of the duty In contrast to the 1957 Act, the duty owed by an occupier to a trespasser does not arise automatically but is subject to certain conditions as set out in s 1(3)(a), (b) and (c) of the 1984 Act. The conditions are that an occupier: (a) is aware of the danger or has reasonable grounds to believe that it exists; (b) knows or has reasonable grounds to believe that the trespasser is in the vicinity of the danger concerned or that they may come into the vicinity of the danger; and (c) may reasonably be expected to offer the other some protection against the risk (considering all the circumstances of the case). The words ‘has reasonable grounds to believe’ under s 1(3)(a) and s 1(3)(b) require actual knowledge of facts which would lead a reasonable occupier to be aware of the danger or presence of the trespasser. The court will look at all the circumstances of the case in assessing whether it is reasonable to expect the occupier to have offered the trespasser some protection under s 1(3)(c). The following information will be particularly important: The nature and extent of the risk. This will largely depend on what the danger is, ie is it an obvious or a hidden danger? Could the trespassers be killed or seriously injured by it, or do they just risk minor injury? The more serious the risk, the more likely it will be that the court will consider some protection ‘reasonable’. The type of trespasser. Are the trespassers adults or children? Are the trespassers deliberate (ie they know they have no permission to be on the land) or inadvertent? 166  Occupiers’ Liability The requirement is more likely to be satisfied in the case of a child or an inadvertent trespasser. The cost and practicality of precautions (ie how difficult would it be to remove the danger or at least reduce the risk from it). If the cost is low, this would also point to it being ‘reasonable’ for the occupiers to offer some protection. 7.3.3 Scope of the 1984 Act duty We have seen that s 1(3) contains three conditions, all of which must be satisfied before the occupier owes a duty to the trespasser. In addition to these three conditions, there are two other issues that limit the duty under the 1984 Act. In Tomlinson v Congleton Borough Council 3 All ER 1122, the claimant suffered serious personal injuries when he dived into the shallow water at the edge of a lake and struck his head on the bottom. Swimming in the lake was prohibited, and the local authority had erected notices and distributed leaflets warning of the dangers of swimming in the lake. The principal reason for the failure of the claimant’s claim was that no duty was owed to him under the 1984 Act. The shallow nature of the lake into which he dived was a natural and obvious feature of the premises. The only risk was in diving in. As this arose out of the claimant’s own conduct, it could not be attributed to the state of the premises. This case confirms, therefore, that (like the 1957 Act) the 1984 Act is concerned with liability due to the state of the premises. Another case that demonstrates this point is Revill v Newbery 2 WLR 239. Here, the defendant fired a shotgun towards a trespasser intending to frighten him off. The trespasser was injured. The Court of Appeal held that the provisions of the 1984 Act were not applicable on these facts. The trespasser was injured by an ‘activity’, not the state of the premises, and as the 1984 Act did not regulate the ‘activity’ duty, the trespasser had to look to common law negligence for a remedy. The second limit on the scope of the duty of care is that the duty is owed only in respect of ‘injury’ under s 1(4) and (8) of the 1984 Act. Section 1(9) defines injury as ‘anything resulting in death or personal injury’ (personal injury covers both physical and mental impairments). This means that the duty under the 1984 Act does not cover damage to a trespasser’s property. 7.3.4 Breach of duty If the three conditions under s 1(3) considered above are all satisfied, the occupier owes a duty to the trespasser under the 1984 Act. Under s 1(4) of the 1984 Act, the duty is to take such care as is reasonable in all the circumstances to see that the trespasser does not suffer injury on the premises by reason of the danger concerned. This means that, like the duty under the 1957 Act, the occupier will not be liable unless they have fallen below the standard of the reasonable occupier. In deciding what constitutes ‘reasonable care’ for the purposes of judging whether an occupier has breached the duty owed to a trespasser, the court will consider all the circumstances of the case, but the following factors will be relevant: the nature of the danger (ie hidden or obvious and the degree of danger); the age of the trespasser (ie adult or child); 167 Tort the nature of the premises (ie how dangerous are they; a private house; an electrified railway line?); the extent of the risk (ie is there a high or low risk of injury?); the cost and practicability of precautions (ie how easy would it be to remove or reduce the risk and what would such measures cost?); the nature and character of the entry (eg burglar, child trespasser or adult inadvertently trespassing); the gravity and likelihood of injury. the foreseeability of the trespasser (ie the more likely people are to trespass, the more precautions must be taken). 7.3.4.1 Warnings Just as an occupier can discharge the common duty of care owed to lawful visitors by adequately warning of the danger, the same is true in the context of trespassers under s 1(5) of the 1984 Act. A warning will often be inadequate for children. If the warning is on a notice, a child may be too young to read and/​or fully to appreciate the danger. Section 1(5) mentions discouragements as well as warnings. Where a warning would be inadequate to protect a trespasser from danger, an occupier should therefore put an obstacle (eg a barrier which is too high for a child to climb) around the danger to prevent the trespasser coming into physical contact with the danger. 7.3.4.2 Children The cases of Glasgow Corporation v Taylor 1 AC 44 (allurements) and Phipps v Rochester Corporation 1 QB 450 (parental responsibility) were considered above in relation to an occupier’s liability for children under the 1957 Act. It is generally considered that they are equally applicable under the 1984 Act as they are under the 1957 Act. 7.3.5 Causation and remoteness Having determined that a duty of care exists which the occupier has breached, the issues of causation (including intervening acts) and remoteness should then be considered. These issues are determined in the same way as for common law negligence. 7.3.6 Defences 7.3.6.1 Voluntary assumption of risk/​volenti non fit injuria The common law defence of voluntary assumption of risk is preserved for claims under s 1(6) of the 1984 Act. In Ratcliff v McConnell and another 1 WLR 670, the claim failed because the defendants were able to establish that the claimant was aware of the risk of diving into a partly drained swimming pool with very shallow water and willingly accepted it. They were, therefore, able to rely on the defence of voluntary assumption of risk under the 1984 Act and consequently escaped liability. 7.3.6.2 Exclusion of liability The 1984 Act is silent as to whether or not liability can be excluded. This contrasts with s 2(1) of the 1957 Act, which expressly states that liability can be excluded or restricted. As the 1984 Act does not expressly state that the occupier can exclude liability, this could be interpreted to mean that the occupier cannot exclude liability. This interpretation is consistent with the view that Parliament intended the 1984 Act to be a ‘safety net’ form of protection for 168  Occupiers’ Liability trespassers. Such an intention would be thwarted if occupiers could evade the obligations of the 1984 Act by a carefully worded notice. If, however, it is possible to exclude liability then, irrespective of whether the occupier is a private, business or trade occupier, the provisions of UCTA 1977 or the CRA 2015 do not apply to liability under the 1984 Act. 7.3.6.3 Contributory negligence Trespassers who are injured partly due to their own carelessness and partly due to an occupier’s breach of duty under the 1984 Act will find their damages reduced for contributory negligence. The usual principles apply (see Chapter 3). 7.3.6.4 Illegality Although trespass is not in itself a crime, some trespassers will enter onto land for some criminal purpose (for example to commit burglary). If such a trespasser is injured in their attempt to commit a serious crime and the occupier is found to have breached a duty owed under the1984 Act and the defence of illegality applied, it would deprive the trespasser of a remedy. This issue was addressed in Revill v Newbery. In this case the Court of Appeal took the view that it would thwart Parliament’s intention, which was to provide safety net protection to trespassers (some of whom clearly would be trespassing for a criminal purpose), were this defence to be available in relation to liability under the 1984 Act. The defence of illegality does not, therefore, apply to claims under the 1984 Act. 7.3.7 Independent contractors 7.3.7.1 As occupiers We have seen that, in order to be an ‘occupier’ for the purposes of the Occupiers’ Liability Acts, a person must have sufficient control over the premises in question. Depending on the circumstances of the case, an independent contractor could possess such control, and would therefore be subject to the obligations of the 1957 and 1984 Acts. 7.3.7.2 As non-​occupiers In AC Billings & Sons Ltd v Riden AC 240, the House of Lords said that where a contractor is not an occupier (for the purposes of the 1957 or 1984 Act), liability turns on the common law of negligence. In common law negligence, it is established law that a contractor owes a duty to take reasonable care to avoid harm to people they could reasonably expect to be affected by their work. Such people could include trespassers (Buckland v Guildford Gas Light & Coke Co 1 KB 410). The follow-​up activity below gives you the opportunity to consolidate your knowledge and understanding of the law relating to occupiers’ liability. ACTIVITY Occupiers’ liability This activity gives you the opportunity to see whether you can distinguish between a lawful visitor and a trespasser, and apply the appropriate statutory provisions. It covers the material in the whole of this chapter. You need, therefore, to make sure that you fully understand the areas covered in this chapter before attempting the activity. Please read the scenario and the questions below, and then follow the guidelines concerning the approach you should adopt in answering the questions. Andy owns and runs a hotel. He engages Charles, a local plumber, to repair a leak in the fountain that is in the hotel foyer. To access the leak, Charles has to remove a marble slab 169 Tort from the surface of the floor which exposes a large hole. A hotel guest, Desmond, running to catch the lift in the hotel foyer and carrying a heavy suitcase, falls into the hole, breaking his pelvis and his spectacles as a result. There is a large notice at the reception desk, at the entrance to the foyer, stating: ‘Warning Fountain Repair Work: The hotel management apologises for any inconvenience caused by repair work being carried out in the hotel foyer but accepts no responsibility for any injury, loss, or damage howsoever caused to guests.’ There is also a notice at the hotel entrance which reads: ‘Guests and visitors only. No public right of way.’ Charles is now insolvent. Advise Desmond whether he has a claim in tort against Andy. Would your answer differ if Desmond was not a guest of the hotel, but decided to take a short-​cut by going through the hotel in order to avoid walking round it? The approach you should adopt in answering the above is as follows: 1. Decide whether Desmond is a lawful visitor or a trespasser. This will determine whether the Occupiers’ Liability Act 1957 or the Occupiers’ Liability Act 1984 applies. 2. Decide whether Andy is an ‘occupier’ of ‘premises’ for the purposes of the Acts. 3. If the 1957 Act applies, what does the common duty of care require of an occupier? Has the required standard been met? What factors are relevant in determining this? 4. If the 1984 Act applies, is a duty owed to Desmond, ie are the three conditions in s 1(3) satisfied? 5. If a duty is owed under the 1984 Act, what is the scope of the duty and has it been breached? 6. If the occupier has breached his duty, are causation and remoteness issues satisfied? 7. Are any defences (complete or partial) available to the occupier? What effect will the notice displayed at the reception desk have on Desmond’s claim(s)? COMMENT Desmond v Andy Desmond is a lawful visitor because, as a hotel guest, he enters with the permission of the occupier, and therefore the position is governed by the 1957 Act. He will be owed the common duty of care by Andy, since Andy would have sufficient control over the relevant area to come within the meaning of ‘occupier’ for the purposes of the Act. (Remember, the test for who is an occupier is based on control (Wheat v Lacon).) The common law duty of care requires an occupier to take such care as is reasonable in the circumstances to ensure the visitor will be reasonably safe in using the premises for the permitted purpose. The duty extends to damage to a visitor’s property (Desmond’s spectacles). The occupier will be in breach of the common duty of care if he fails to come up to the standard of care expected of a reasonable occupier in his position. The standard of care to be expected is determined in the same way as for common law negligence (by considering all the circumstances of the case), but in addition there are some statutory considerations. Relevant here are the following: 170  Occupiers’ Liability Whether the notice in reception is a sufficient warning which therefore discharges the occupier’s duty. Under s 2(4)(a), an occupier can discharge the duty owed by adequately warning of the danger. However, the notice at the reception desk is far too general. It does not alert a visitor to any problem with the floor and would not, therefore, be sufficient for these purposes. Whether the occupier can rely on s 2(4)(b). Given that Charles is an independent contractor, the provisions in s 2(4)(b) of the 1957 Act must be considered. Andy clearly acted reasonably in entrusting the work to an independent contractor, but did he take reasonable steps to satisfy himself that Charles was competent and to check that Charles had done his work properly? This will be a question of fact, but Charles’s work is not technical in nature and so it seems reasonable to have expected Andy at least to check that Charles had screened off the area (by the use of hoardings or railings) to prevent people falling into the hole. It is therefore likely that Andy has not discharged his duty by engaging Charles, and will be found to be in breach of the common duty of care by leaving such a hole exposed in an area open to guests. In terms of causation, this is clearly established as ‘but for’ the hole, Desmond would not have fallen and injured himself or damaged his spectacles. There is no intervening act. The loss Desmond suffered (injury and property damage) is also of a reasonably foreseeable type and so is not too remote under The Wagon Mound test. As regards possible defences, consent would not succeed against Desmond. He may have been aware that the work was going on (because the notice at the reception desk points this out), but he cannot be said to have freely consented to run the risk of being injured by it. Does the notice at the reception desk successfully exclude Andy’s liability? It appears that the notice is prominent and so, at common law, Andy has taken reasonable steps to draw it to the attention of guests. However, it will be subject to the CRA 2015 because Andy is a trader and Desmond is a consumer. The notice is, therefore, void as regards Desmond’s broken pelvis (s 65 of the CRA 2015); and Andy will be able to rely on it for the damage to Desmond’s spectacles only if it passes the fairness test in the CRA 2015 (s 62). Finally, it is unlikely that Desmond would be able to recover full damages from Andy as he would appear to have been careless as to his own safety (not looking where he was going when running whilst carrying a heavy bag). Therefore Desmond is contributorily negligent under the Law Reform (Contributory Negligence) Act 1945. The court would reduce Desmond’s damages by such extent as it considers just and equitable to reflect his level of responsibility. Desmond as a trespasser In the alternative facts, Desmond uses the hotel as a short-​cut. The notice at the hotel entrance means he does not have permission to do this and so he is a trespasser. (You should remember that, from what you have studied, this applies even if Desmond does not see or read the notice.) The position is governed, therefore, by the 1984 Act. Andy will still be the occupier for the purposes of the 1984 Act, but will owe Desmond a duty only if the three conditions in s 1(3) are satisfied: He must have been aware of the danger or had reasonable grounds to believe it existed. This will be a question of fact. 171 Tort He must have known or had reasonable grounds to believe that Desmond might come into the vicinity of the danger. This will depend on whether Andy knew that members of the public disregarded the notice at the hotel entrance. The risk is one against which in all the circumstances Andy might reasonably be expected to offer Desmond some protection. In applying this condition, relevant circumstances here include the fact that the exposed hole was an obvious hazard which could result in serious injury, and the fact that the risk could easily have been reduced or eliminated by, say, partitioning the work area from the public area. A hotel lobby is, after all, a busy place. We have insufficient information from the facts to be able to judge whether the three conditions in s 1(3) are all satisfied, but if they are, a duty will be owed to Desmond. The duty requires the occupier to take such care as is reasonable in the circumstances to ensure the trespasser is not injured by the danger. As under the 1957 Act, whether this duty is breached involves considering what standard of care would have been expected of a reasonable occupier looking at all the circumstances of the case (including the factors we considered under the third condition in s 1(3) (above)). Given that it would have been easy to prevent the accident, the duty (if any) owed to Desmond may have been breached. The notice at the hotel entrance is unlikely to amount to reasonable warning/​discouragement within s 1(5) as it does not make Desmond aware of the risk. There would no problem with either causation or remoteness (as discussed above). Desmond will not be regarded as having willingly accepted the risk within s 1(6) for the same reasons as when considering Desmond as a visitor. The exclusion notice does not protect Andy (even assuming that liability under the 1984 Act can be excluded, which is uncertain), as the wording is confined to injury to guests, not trespassers. It would appear, therefore, that if the duty has been breached by Andy, he will have no defence except the partial defence of contributory negligence which will reduce Desmond’s damages. The final point to note is that Desmond will not recover damages for his spectacles as damage to a trespasser’s property is outside the scope of the 1984 Act. SUMMARY You began this chapter by looking at how statute now regulates the liability of an occupier of premises to visitors and trespassers. You looked at how the statutory provisions of the Occupiers’ Liability Acts 1957 and 1984 interact with and complement the common law of negligence. As a result, you should understand that you analyse a claim under these Acts in the same way as you analysed a common law negligence claim in Chapter 2. You then looked at some common issues (namely the definitions of ‘occupier’ and of ‘premises’) affecting both Acts. Next you considered the Occupiers’ Liability Act 1957. You saw that a duty of care under this Act is owed automatically by an occupier to a visitor. You also saw that the duty is to make the visitor reasonably safe, not the premises safe. The standard of care is the same as that in common law negligence (that of a reasonable occupier), but the 1957 Act provides some additional considerations that should be taken into account. You then looked at the Occupiers’ Liability Act 1984. A duty under this Act does not arise automatically but is subject to conditions. You considered what these conditions are and 172  Occupiers’ Liability saw that, in practice, it can be difficult for a trespasser to satisfy them. If a duty is owed, the standard of care is, as with the 1957 Act, determined in the same way as at common law (standard of a reasonable occupier). However, the duty under the 1984 Act covers only injury to the trespasser, not any property damage. Now that you have studied this chapter, you should be able to analyse a set of facts and be able to advise accurately on the various claims that may be available. Figure 7.1 Occupiers’ liability under the Occupiers’ Liability Act 1957 flowchart Did the claimant suffer an injury due to the state of the premises? YES NO Was the claimant a There is no claim under visitor or a trespasser? occupiers’ liability (but consider other torts) Visitor. Occupiers owe their visitors Trespasser (see fig 7.2) a duty of care under the OLA 1957 to take such care as is reasonable to see that the visitor is reasonably safe in using the premises Did the occupier breach the duty of care? Consider: 1. The factors from negligence and 2. Statutory factors in OLA 1957 (child visitors, skilled visitors, warnings, independent contractors) YES NO Consider causation There is no liability under OLA 1957 Did the occupier’s breach cause damage to the claimant? YES. Consider defences NO. There is no Consent liability under OLA 1957 Exclusion of liability Contributory negligence 173 Tort Figure 7.2 Occupiers’ liability under the Occupiers’ Liability Act 1984 flowchart Did the claimant suffer an injury due to the state of the premises? YES NO Was the claimant a There is no claim under visitor or a trespasser? occupiers’ liability (but consider other torts) Visitor (See fig 7.1) Trespasser Did the occupier owe the claimant a duty of care? Consider whether: 1. The occupier was aware of the danger or had reasonable grounds to believe it existed; and 2. The occupier knew or had reasonable grounds to believe that the trespasser was in the vicinity of the danger; and 3. The occupier could be reasonably expected to offer some protection against the risk in all the circumstances (including the nature and extent of the risk, the type and age of the trespasser and the cost and practicability of precaution) YES. Did the occupier breach NO the duty of care? Consider There is no liability 1. The factors from negligence and under OLA 1984 2. The statutory factor (warnings) YES. NO. Consider causation There is no liability under OLA 1984 Did the occupier’s breach cause death or personal injury to the claimant? YES. Consider defences. NO. There is no liability -- Consent under OLA 1984 -- Contributory negligence 174