Occupiers' Liability: Persons other than visitors

• Occupier's liability comes from both statute law and the common law
• This area of tort involves the liability of an occupier to both visitors and persons other than visitors to his or her premises

Key Statutes

• The Occupiers' Liability Act 1957 which covers visitors
• The Occupiers' Liability Act 1984 which covers persons other than visitors (also referred to as an unlawful visitor or trespasser)

Occupier's Liability Act 1984

Who is an Occupier?

• Anybody who would be classified as an occupier under the Occupiers Liability Act 1957 is an occupier under the Occupiers Liability Act 1984

Trespassers

Trespasser = someone who goes onto the land of an occupier without permission. Their presence is either unknown or objected to

• The common law was very harsh towards trespassers, including children
• In Addie v Dumbreck [1929] it was held that there was no duty of care owed by occupiers to trespassers to ensure that they were safe when coming onto the land. The only duty was not to inflict harm willfully
• In British Railways Board v Herrington [1972], the House of Lords used their 1966 Practice Statement and departed from their precedent in Addie v Dumbreck [1929] and held that a duty of care could be owed to trespassers
• The decision in this case eventually led to Parliament introducing the Occupiers Liability Act 1984

The Statutory Duty of Care

• Under the Occupiers Liability Act 1984 s1 (3), an occupier of premises owes a statutory duty of care to an unlawful visitor if:
• he is aware of the danger or has reasonable grounds to believe that it exists; and
• (b) he knows or has reasonable grounds to believe that it exists; and
• (c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection

The Duty Owed

• Under the Occupiers Liability Act 1984 s1 (4) the duty owed to persons other than visitors is to take care as is reasonable in all the circumstances of the case to see that they are not injured on the premises by the danger concerned

How does the duty imposed under the Occupiers Liability Act 1984 differ from that imposed under the Occupiers Liability Act 1957?

• Occupiers Liability Act 1957:
• To take such care is as 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
• Occupiers Liability Act 1984
• To take care as is reasonable to see that the non-visitor is not injured on the premises by the danger concerned

Lord Hoffman: "Parliament has made it clear that in the case of a lawful visitor, one starts from the assumption that there is a duty whereas in the case of a trespasser one starts from the assumption that there is none"

Tomlinson v Congleton Borough Council [2003]

• Tomlinson visited an artificial lake which was part of a country park in Congleton in Cheshire. Canoeing and windsurfing was permitted in one area of the lake and angling in another. Swimming and diving were not permitted.
• Tomlinson ignored warning signs not to enter the lake ("Dangerous Water, No swimming.") and dived into it.
• He hit his head on the bottom, causing him to break his neck which left him a tetraplegic. He brought proceedings against Congleton Borough Council claiming for loss of earnings, loss of quality of life and the cost of the care he would require as a result of his injuries
• HELD - Tomlinson may have been a visitor when he arrived at the lake but it was accepted that he was a trespasser when he entered the water and any successful claims would have to be under the Occupiers Liability Act 1984
• Tomlinson was aware that he was not permitted to dive in the lake. Although, the council were aware of the danger, they had introduced patrols and warning signs to stop swimming and diving
• The House of Lords dismissed Tomlinson's claims

This means that under the Occupiers Liability Act 1957, a duty of care is owed to all visitors whereas under the Occupiers Liability Act 1984 a duty is owed only if certain conditions are met (e.g. the Occupier is aware of the danger, etc.)

Cases

• Keown v Coventry Healthcare Trust (2006)
• 11 year old child fell off a fire escape he had been climbing (from the underside) and suffered a fractured arm and brain injury
• The fire escape was part of the hospital grounds and was a known area where children liked to play
• The court held that there was no breach of duty under the 1984 Act, as it was the claimant's own choice to climb the fire escape
• Siddorn v Patel
• Claimant sought damages from her landlord for injuries sustained whilst dancing on a garage roof. She had climbed through a window to reach the roof, which was not a part of her tenancy, and fell through a Perspex skylight
• The court rejected the claim. The duty of care under the 1984 Act could only arise if the danger referred to in s.1(1)(a) was due to the state of the premises and not a claimant's activity
• Naylor v Payling (2004)
• Payling suffered severe head injuries in the course of being ejected from a night club by a bouncer
• The defendant owner was held to owe a duty to ensure the independent contractor who provided the security was insured, and so was in breach of his duty of care
• Swain v Natui Ram Puri (1996)
• 9 year old fell from a roof
• There was extensive barbed wire blocking access to the roof, but the 9 year old found a gap
• Occupier held not liable as there was no knowledge of vicinity under the 1984 Act
• They didn't know the kid could've got up there as there was extensive fencing
• Higgs v Foster (2004)
• Police officer investigating a crime entered the occupier's premises to carry out surveillance
• He fell into an uncovered pit suffering severe injuries, causing him to retire
• The police officer was judged to be a trespasser
• The occupier knew the uncovered hole was dangerous, but could not anticipate the police officer's presence
• Rhind v Astbury Water Park (2004)
• Claimant dived into water to fetch a football and hit his head on a submerged object
• The occupier was not responsible because the claimant took an obvious and serious risk by diving in
• The occupiers had no reasonable grounds to believe that the object was in the water
• Scott v Associated British Ports (2000)
• There were two incidents involving children
• Because the first one did not have a precedent, the courts decided that the Defendants could not have foreseen the accident
• In regard to the second one, the court found that on the evidence, even if the Defendant had put up a fence there would have been no way that this would have prevented the claimant from trespassing
• Gould v McAuliffe (1951)
• Claimant entered the back of the bar in search of the toilet and was attacked by a dog
• Defense of restricted area was rejected as there was no sign or indication that visitors should not be there
• Spearman v Royal United Bath Foundation NHS Trust (2017)
• Claimant was a diabetic with a brain injury
• He was admitted to hospital, but then wandered off through an unmarked fire exit and fell off the roof, badly injuring himself
• Defendant held liable because of the absence of a sign denoting that the passage leading to the roof was out of bounds
• The objective reasonable man test did not apply as the claimant was suffering from a confused state of mind

When will a duty of care to a trespasser exist?

1) When the risk of injury to the claimant is not obvious

2) When it is reasonable for the Defendant occupier to provide protection

3) When there is a history of trespass - such that the occupier is on reasonable notice that trespass will occur

4) When the occupier is reasonably expected to know of the existence of the risk

Ramblers

• Ramblers using footpaths are also potentially covered by the 1984 Act
• Occupiers are not responsible for hazards posed by natural features of the landscape. Only when the occupier has placed an obstacle on the land that ramblers have to negotiate will they be liable
• Obstacles do not include stiles or gates unless the occupier has intentionally or recklessly created a danger

Following Herrington, the court said that the duty of humanity in that case was more generous than the duty owed to visitors under the 1957 Act, but in a case called White v St Albans City (1990) the court made it clear that the 1984 Act was to take precedence over Herrington and the "Humanity" test

White v St Albans City (1990)

• A child took a shortcut across council land and fell into a trench. The land was deemed to be obviously private, because of fencing and signage. The child still got through and hurt himself
• This is different to Herrington's Humanity Test because of the efforts made by the defendant to make clear that access would be trespass and by putting up the fence
• On the facts, the defendant had acted reasonably - the child injured himself due to contributory negligence

Revil v Newbery (1996)

• 76 year old man's shed on his allotment kept being broken into
• Mr Newbery slept in his shed armed with a 12 bore shotgun
• Mr Revil and his friend went to break into the shed. Newbery shot him through a hole in the door
• HELD - the actions of the defendant were disproportionate and hence unreasonable
• BUT - in coming onto the land as a trespasser, the claimant's damages were reduced by two thirds. The reasoning was that contributory negligence stands here because the accident would not have happened without a knowing trespass
• It is not a defense to say that since the claimant was engaged in an illegal act (Ex Turpi Causa) that he had no course of action in civil law under the 1984 Act

Titchener v BRB

• A young couple took a well used short cut through a fence and across a railway and were hit by a train.
• HELD - they were aware of the dangers and still proceeded to take the risk (volenti non fit injuria) - claim failed

Defences

• Volenti Non Fit Injuria - if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim
• Warning Signs - normally, so far as the 1984 Act is concerned, if the warning sign is sufficiently clear about the danger posed by the hazard, then this will offer a defence to the occupier. However, the existence of a warning sign will not in and of itself, be enough
• Exclusion Clauses - The law is unclear here. In terms of a notice that tries to exclude liability under the 1984 Act for injury to trespassers, the 1984 Act does not specifically state whether this duty can be excluded by the occupier
• The Unfair Contract Terms Act - only applies to the 1957 Act and case law - The 1977 Act's prohibition of excluding liability fore death/personal injury will only attach to the 1957 Act and the duty to visitors, and the law set out in cases dealing with the point
• Under the 1984 Act, the effect of Herrington was to say that the law of common humanity cannot be excluded. There will always be a minimum standard of care. No case law has clarified the position with regard to exclusion clauses and the 1984 Act

Claiming for Damages under the 1957 and 1984 Acts

• The 1984 Act only allowed claims for death or personal injury
• Trespassers cannot claim for damage to property