Occupier's Liability 2024 PDF

OCCUPIER’S LIABILITY DR HANIFAH HAYDAR ALI 2024  Definition Occupier’s duty and liability Occupier Duty owed by occupiers of land or Test of occupational control premises towards visitors, whether invited or uninvited,...

OCCUPIER’S LIABILITY DR HANIFAH HAYDAR ALI 2024  Definition Occupier’s duty and liability Occupier Duty owed by occupiers of land or Test of occupational control premises towards visitors, whether invited or uninvited, whose presence over premises. is lawful or unlawful, who suffer injury during the course of their visit A party who exercises an a person who is in control of land or element of control over property must conduct themselves in premises. a certain manner, in order to avoid injuring others.  Wheat v E Lacon & Co Ltd AC 552 – The claimant was on holiday, and stayed in a pub with attached guest rooms. The pub was owned by the defendant company, which had hired a manager-in-residence to manage both the guest rooms and the front-of-house. In order to access his room, the claimant had to climb a steep, narrow staircase. The handrail stopped two steps short of the bottom, and there was no bulb in the light fitting, leaving it dark. The claimant was fatally injured whilst descending these stairs. – The primary question of law was then who was the proper party to the suit. The court held that both the owners and the manager were occupiers, applying a test of control. The owners retained both property rights, and the right to repair the premises as they saw fit, and hence had sufficient control over the premises to be an occupier. The manager was too an occupier – he was licensed to deal with the day-to-day running of the premises, and additionally physically lived on the first floor of the pub. Whilst both were occupiers, only the manager was held liable – the lack of lighting was held to be the key breach of duty, and that was the manager’s purview. “wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an ‘occupier’ and […] is under a duty to his ‘visitor’ to use reasonable care. In order to be an ‘occupier’ it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. […] He may share the control with others. Two or more may be ‘occupiers’. And […] each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control.” – Lord Denning, at 577.  Harris v Birkenhead 1 WLR 279 The defendant council had served a compulsory purchase on a rented property, and the current tenant moved out. They gave the owner/landlord 14 days’ notice of their intention to take possession, but didn’t actually take physical possession of the property (i.e. send an agent to it) once the 14 days had passed. The claimant, a four- year-old girl, wandered off from a nearby playpark with a friend. The house was unsecured (unknown vandals had broken in), and the claimant entered the open front door, went upstairs, and was seriously injured when she fell from a window. The council was held liable – although they had not physically occupied the property, they had legal ownership at the point the accident occurred. This legal control was enough to establish occupier status.  PREMISES – Land and buildings – Temporary and mobile structures are included under this definition, such as scaffolding and ladders. – Wheeler v Copas 3 All ER 405: The claimant was a builder working on the defendant’s property when he used a ladder which the defendant had lent to him. The ladder was too flimsy, and broke, injuring the claimant. The court noted that the ladder came under the definition of premises  LAWFUL VISITORS Three categories a. those who have express permission to visit, b. those who have implied permission to visit, and c. those with a lawful right to visit.  Express Permission – Those who are expressly invited onto premises by some means (so, a written invite or a simple beckoning by the occupier – Occupiers can limit the extent of an express invite in terms of place, behaviour or time. – E.g: someone who is invited to a dinner party can attend with express permission, but they cannot refuse to leave at the end, smash the host’s windows and then climb up onto the roof. Someone who deviates from such instructions will be considered a trespasser  The Carlgarth P 93 – The claimant’s ship filled with water and sank whilst travelling down the defendant’s channel of water. Whilst the ship was invited to use the channel, it had navigated in an irregular manner (causing the sinking.) Thus, because the ship was acting in a manner other than that which it had permission to, the occupier of the channel could not be held liable. – Scrutton LJ at 97: “When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters, you invite him to use the staircase in the ordinary way in which it is used.”  Implied permission – those who lack express permission but whose presence is assumed to be unobjectionable to the occupier. – E.g: Resident and Postman : Impliedly for a postman to use the front entrance. Natural limitation which will apply for many forms of implied permission – so a postman will likely be considered to have implied permission to access the front of a property, but this permission will not extend to the postman going round the back of the property and playing on the owner’s swing-set for an hour. Again, a visitor who exceeds the limitations of implied permission will be considered a trespasser.  Lowery v Walker AC 10 – A path running across the defendant’s field was used as a shortcut by several people to get to a nearby railway station. The defendant knew about this, and objected to it, but had not taken any steps to stop it from occurring. One day, he put a wild horse in the field, which attacked and injured the claimant. The courts held that since the defendant knew about the trespassers, but did nothing about it, this amounted to implied permission. The defendant was, thus, held liable. – *Implied permission can come into being if an occupier knows that their land is being used by trespassers, but does nothing to prevent their activities  Lawful right of entry – those who maintain a right to enter land or property regardless of the occupier’s wishes – police officers (with a warrant or chasing a fugitive), firefighters attending a fire, and public utilities employees attending to read meters etc. – Those who enter property in accordance with a valid contract are held to be a lawful visitor under the act, and notably, if the relevant contract provides for a higher standard of care it will apply. – So if a landowner hires builders, and agrees to being held strictly liable for any accidents that occur, then that duty of care will apply  Occupiers’ Duty of Care – Duty of care owed by occupiers to categories of visitors – the standard of care since being an occupier normally gives rise to the foreseeability of damage to a visitor – the duty is based around preventing injury in visitors, rather than ensuring that premises are objectively safe. – injury suffered by the visitor usually resulted from some defect in the static condition of the premises rather than from any activity taking place there. – Thus, whilst a deep pit presents an objective hazard, the occupiers duty is based on ensuring nobody is injured by it (for example, by putting up warning signs or fencing it off.)  Special Visitors – children and skilled visitors, for whom the applicable duty of care is higher and lower respectively – children can be expected to be less careful than adults, and, by implication, that a greater level of care might be required to keep them from harm. – The common law has sought to strike a balance between the responsibilities of parents and occupiers to prevent harm from befalling children.  Phipps v Rochester Corporation 1 QB 450 A 5-year-old was walking, with his 7-year-old sister, across some land owned by the defendant, which was under development. The 5-year-old fell into a trench dug for such purposes, and was injured. The court ruled that the occupying council was not liable – just as an assumption could be made that children would be less careful, an equal assumption could be made that young children would not be allowed to wander unsupervised onto unsafe land. Thus, to avoid shifting parental responsibility to landowners, the claim was denied.  Glasgow Corporation v Taylor 1 AC 44 – A seven-year-old died after eating poisonous berries which were in a public park. Whilst the plants were fenced off, there were no notices warning that the berries were poisonous. – The court held that the defendant council was liable. The plants did not present an obvious danger, and so the council should have taken sufficient measures to draw attention to the concealed danger. – It was also noted that an occupier who is aware that something on his land might act as an allurement to children (for instance, berries that look edible) should take greater care to prevent that risk from manifesting. – *If land holds either concealed danger, or something which might allure children to it, then a duty will likely be held to exist Titchener v British Railways Board 1 WLR 1427 – the relevant level of care will depend on the nature of the risk and the age and awareness of the child involved – The claimant, a 15-year-old girl, was walking with her 16-year-old boyfriend. They took a shortcut across a railway line and were both struck by a train, severely injuring the claimant and killing her boyfriend. They had accessed the railway through a gap in the fence, and there was a pathway worn up to the gap, suggesting that this was a point of repeated trespass. It was established that the defendant either knew of the gap, or would have known of it upon reasonable inspection. The defendant denied liability on the basis that it did not owe a duty of care towards a 15-year-old, who would have been aware of the risks they were running. This argument was successful – indeed upon cross-examination the claimant noted her knowledge of the risk and her choice to take the chance.  Skilled Visitors – Occupiers can assume that such visitors will have a greater awareness of risks and the relevant precautions that they should take – This increased competence will only apply to risks whose nature matches the skill of the visitor. So an electrician will be owed a lesser duty of care by an occupier – but only in relation to risks of electric shock and similar. – General Cleaning Contractors Ltd v Christmas AC 180 General Cleaning Contractors Ltd v Christmas AC 180 The claimant was cleaning windows on the defendant’s building. He had climbed up onto a wall, and was using an open sash window for support. The top half of the window closed on his fingers, he lost his balance and fell, injuring himself. His action against the occupiers failed – it was held that as a professional, he should have known how to mitigate the risk he was running.  Salmon v Seafarer Restaurants Ltd 1 WLR 1264 – A fireman was injured in an explosion whilst attending a chip shop fire. The defendant occupier argued that, with regard to a fireman attending a fire, his duty only existed to protect him against a special or additional risk above those he might ordinarily encounter as a result of his job. This argument was rejected – whilst the firefighter’s skills were relevant to determining the applicable duty of care, where it was foreseeable that he might be injured through the exercise of those skills, the occupier would remain liable. The claim therefore succeeded.  Warnings – whether putting up a warning sign release the occupier’s liability? – the duty of care is based on protecting visitors, rather than removing hazards altogether. This means that the humble warning sign forms a key element of fulfilling the duty. However, the addition of a warning to a hazard will not absolve an occupier of liability. – a specific hazard will require a specific warning – so if the hazard is an electric fence, then an appropriate warning would be: ‘Caution: Electric Fence’, rather than just ‘Caution’. Visitors shouldn’t have to play ‘guess the hazard’ whenever they see a warning. Hidden dangers will require greater attention to be drawn to them  Staples v West Dorset District Council 93 LGR 536 The claimant was badly injured when, crouched on a harbour wall to take a photo, he slipped and fell off of the wall, some 20 feet high. The harbour wall was covered in algae, and thus very slippery when wet. He brought an action against the defendant council, arguing that no warning signs were present regarding the danger of slipping. The claim failed – the dangers of slipping on algae on a harbour wall were obvious, and the claimant was aware of them. The defendant thus had no duty to warn. * Staples demonstrates how claimants will be expected to use their own common sense to self-warn of a hazard.  Independent Contractors Situations in which an occupier will be held liable for a harm caused by an independent contractor: 1. where in was unreasonable to entrust the work to an independent contractor in the first place. This is to prevent an occupier from hiring independent contractors to deal with all aspects of their premises in order to avoid liability. 2. Secondly, where the occupier failed to take reasonable steps to ensure the independent contractor was competent – for example, a landlord who hires an independent engineer to do gas safety checks will be expected to check that he is qualified. 3. Thirdly, where the occupier has failed to take reasonable steps to check the work of an independent contractor.  Independent Contractors – If a school hires an independent contractor to clear ice off of steps, they will be expected to check that it has been done ( See Woodward v Mayor of Hastings KB 174. ). – An occupier will not be expected to check overly technical work, as long as they have taken the proactive measure of ensuring their contractor is reputable (See Haseldine v Daw & Son Ltd 2 KB 343.)  TRESPASSERS – Robert Addie & Sons (Collieries) Ltd v Dumbreck AC 358 : – “someone who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to.” – Young v Kent County Council EWHC 1342: – The claimant, a 12-year-old boy, climbed up onto the roof of a school (via a ventilation flu) to fetch a ball. He then fell through a skylight and was injured. The defendant occupier was aware that the skylight was brittle, and that it represented a hazard. They were also aware that the roof was used as a meeting place by children – the fact that the roof could be accessed via the ventilation flu by children was even noted in a HSE report. Finally, the brittle skylight was a hazard which could have easily been protected against. The claim therefore succeeded, albeit with the claimant’s damages reduced by 50% on the basis of contributory negligence. EXTRA REFERENCES Keown v Coventry Healthcare NHS Trust 1 WLR 953 Thomlinson v Congleton Borough Council 1 AC 46  DEFENCES Volenti non fit injuria Contributory negligence Exclusion of occupier’s liability – Ashdown v Williams and Sons (1957)