Occupier's Liability: Visitors

L.O:

1. Name the two statutes covering occupier's liability
2. Identify the difference in scope of the two statutes
3. Describe who is an occupier
4. Describe who is a visitor under the Occupier's Liability Act 1957
5. Explain the common duty of care under the Occupier's Liability Act 1957
6. Explain the meaning of the term 'reasonable'
7. Explain the application of the common duty of care to children

A Tort Covered by Statute Law

• The tort of negligence comes from the common law
• However, 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

The Key Statutes

The two key statutes are:

1. The Occupier's Liability Act 1957 which covers visitors
2. The Occupier's Liability Act 1984 which covers persons other than visitors

Who is an Occupier?

• The Occupier's Liability Act 1957 does not define who is the occupier, but it does state that the rules of common law shall apply
• The test to be applied is occupational control (who has control over the premises)
• In Wheat v Lacon & Co four categories of occupier were identified:
1. If a landlord lets premises then the tenant will be the occupier
2. If a landlord who lets part of a building retains certain areas (such as an entry hall) then the landlord will be the occupier in respect of those areas
3. If an owner licenses a person to use premises but reserves the right of entry then the owner remains the occupier
4. If contractors are employed to carry out work on premises, the owner will generally remain the occupier, although there may be circumstances where the contractor could be the occupier

Who is a visitor?

• Under the common law, a visitor is a person who has express or implied permission to enter the premises
• Under the Occupier's Liability Act 1957, persons who have a right to enter premises conferred by law (e.g fire fighters and police officers) are lawful visitors

The Common Duty of Care

• The Occupier's Liability Act 1957 s2 imposes a common duty of care that is owed to lawful visitors
• (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
• The Occupier's Liability Act 1957 lays down guidelines in applying the common duty of care:
• S2(3)(a) An occupier must be prepared for children to be less careful than adults
• S2(3)(b) An occupier can expect a person in the exercise of his calling to appreciate and guard against any special risks ordinarily incident to it
• S2(4)(a) A warning may discharge the duty of care
• S2(4)(b) The occupier is not liable for the fault of an independent contractor provided he or she acted reasonably in entrusting the work to a contractor and took reasonable steps to ensure that the contractor was competent and the work was properly carried out

The Meaning of Reasonable

The Man on the Clapham Omnibus

• Omnibus - a bus
• The man on the Clapham omnibus is a hypothetical ordinary and reasonable person, used by the courts where it is necessary to decide whether a party has acted as a reasonable person would
  

Special Categories: Children

• Children do not form a special category on their own, but the Occupiers Liability Act 1957 s2(3)(a) states that occupiers must be prepared for children to be less careful than adults

Cases

• Haseldine v Daw [1941]
• Claimant was injured by a faulty lift which had been surveyed by a group of technicians a week before the accident, and was seen to be in perfect order
• The claimant purported to sue the owner of the building
• The court held that the technical and specialist nature of lift maintenance meant that the quality of the survey was not something that the occupiers could reasonably be expected to verify. Hence the occupiers were not liable
• Rule to exempt liability on the basis of contracting
• The injury must have been caused by the work carried out by the contractor which they were contracted to do;
• It was reasonable for the occupier to employ an independent contractor;
• the occupier must be reasonably satisfied that the contractor was competent
  
• Phipps v Rochester [1955]
• 5 year old boy broke his leg after falling into a trench on a building site. The Council knew that children used the site, but didn't do much to stop them playing there
• Held - the council had not broken its duty of care - the duty of parents to keep them away from such harm was greater than any owed by the council
• However, it is possible that the defendants would not receive such leniency today, since there is clearly more of a duty to protect children
• Wheat v Lacon & Co [1966]
• A manager and his wife were licensed to run a pub on behalf of a brewery. They were allowed to take in paying guests; one of whom suffered a fatal fall down an unlit stairwell, where the handrail coincidentally didn't reach to the bottom of the stairs.
• Key question as to who the occupier was, as it is usually looked at in terms of who had control
• The HoL held that both the pub manager and the owning brewery had the characteristics of occupiers because they both had free access and control over parts of the premises
• If there had been a breach of an occupier's duty of care, they would have shared liability for it, and consequently the duty to meet the claimant's damages and legal costs
• As things stood however, a third party had removed a lightbulb from the premises, which the court regarded as an intervening act
• The situation with the insufficiently long handrail was not addressed in terms of liability, but if that had been a Sine Qua Non, then liability for it as a contributing factor would have to have reflected the liability of each co-defendant settled by the court
• The 1957 Act then appears to apply to claims arising from accidents caused by the presence of a physical hazard at the relevant location - this is as opposed to the action of a third party who is not the occupier

The 1957 Act defines a "premises" as follows: "land, buildings, or any fixed or movable structure, including a vessel, vehicle or aircraft"

The key issue in this area of tort is the reasonableness of the duty of care. What, then, is reasonable? Courts have taken into account all of the circumstances of the case

The duty does not require the occupier to make a visitor absolutely safe, just to take reasonable steps that no harm comes to them

• Glasgow Corporation v Taylor [1992]
  
• Boy, aged 5, died after eating poisonous berries from a tree
• The Council had not put either a fence around a tree nor a sign indicating the danger, but had known that the tree was there, and poisonous
• Held - breach of duty, but it could have been a different outcome if the victim had been an adult

If a landlord has a clause in a lease that reserves their right to enter at will, then they will remain the occupier of the entire building

• Ward v The Ritz Hotel (1992)
• The claimant was injured when he fell over the rail on a hotel room balcony that was too low according to the British Safety Standards
• In terms of what is reasonable, the court said that it is always useful for a defendant to show that they have met the required safety standards, although it is not a complete defense
• Claim was successful
• Case law also suggests that a warning sign e.g warning of a slippery floor, may go some way to absolving the defendant of liability - but it obviously depends on the sign and the hazard
• Horton v Jackson (1996)
• A claimant lost an eye at a golf club driving range after being struck by a golf ball
• The defendant argued that there was a sign asking people to wait until golfers on the adjoining tee had taken their shots and it did not matter that this rule of etiquette was not enforced. Also relevant was that accidents at the club resulting in injury had been very scarce - 2 in 800,000 rounds of golf
• The claim failed
• Darby v National Trust
• Death by drowning at a National Trust property. No sign
• Widow of victim sued saying that there was no sign highlighting the risk of drowning
• CoA held - there didn't need to be one as the risk of drowning in a deep pond was obvious
• Clare v Perry (2005)
• Claimant injured by climbing over a wall outside a hotel which led to a dangerous drop. She had chosen not to take the proper exit. Her argument was that there was no fencing preventing her from taking this route
• Held - the defendant's duty as an occupier to take reasonable care did not extend to protecting guests from their own foolish behaviour
• Perry v Butlins (1997)
• A three year old boy fell onto a low wall with hard and sharp angles. The wall had been situated very close to an area where children of that age were routinely entertained
• Held - CoA said the case was borderline, but on the facts, the sharpness of the wall, with its location near a children's entertainment area swung the balance towards a breach of a duty of care
• Jolley v Sutton LBC (2000)
• Children tried to mend a boat that had been dumped on council land, which resulted in one being injured and paralysed 
• Held - children could be relied upon to find ingenious ways of hurting themselves, and it was reasonably foreseeable sometimes that this would happen. The Council was therefore liable for a breach in their duty for not removing the boat at the earliest opportunity
• Bourne Leisure v Marsden (2009)
• Two year old boy drowned after wandering away from his mother in one of two ponds in a caravan park
• The defendants had said that they made it clear to customers that these things were on site and posed a hazard to young children

Section 2(3) of the 1957 Act says: A person exercising their calling may be deemed to exercise caution against any risks normally associated with it. Where such risks normally arise in the course of a person's work, the occupier doesn't need to take precautions

• Roles v Nathan (1963)
• Two chimney sweeps died after ignoring ample warnings of carbon monoxide emissions and were found dead after returning in the evening to clean flues that they were told to stay away from until the next day
• Their widows brought action under Occupiers Liability Act 1957
• Held - not liable - they were warned SO MANY TIMES
• Ogwo v Taylor (1988)
• Defendant negligently set fire to his own home after botched DIY
• The resulting fire injured the fireman claimant who attended the scene
• Could this be regarded simply as something the claimant had to face as a risk because of his job?
• Held - No - The risk of possible injury was foreseeable, but not necessarily inevitable, and the defendant's actions had placed the fireman in in that position

The courts are not keen to lay down a hard and fast rule in regard to the duty of care owed to people in lines of work that expose to risk. The fire in the Ogwo case was caused negligently. The degree of risk for  judges has to be subjectively looked at in each case

Section 2(4)b - An occupier is not liable for the negligence of the contractor that he appointed, if in choosing him he exercised all reasonable care

• Woodward v The Mayor of Hastings (1945)
• Held that the failure of the occupiers to put in place someone to check the work of the cleaner made them liable
• No technical expertise was needed here to see whether a step had been cleared of snow
• Bottomley v Todmorden Cricket Club (2003)
• Claimant was a volunteer 'helping out' at a fireworks display, and was injured
• Held - The Cricket Club were liable for not hiring someone competent enough to do the job, and for failing to check that they had insurance that covered the display
• Gwilliam v West Hertfordshire Hospital NHS Trust (2002)
• Injuries suffered by claimant on a 'splat wall' organised by a sub-contractor
• Held - The sub-contractor was not competent to put on this activity and had no insurance
• The hospital owed a duty of care, but there was no breach of duty as they had enquired and been told by the sub-contractor that they did have insurance (when they didn't)

Recap on independent contractors

• Section 2(4)(b) of the 1957 Act said that the occupier has to take reasonable steps to satisfy themselves that the contractor is reasonably competent to carry out the work that they have been contracted to complete
• On the issue of an occupier's duty to check the contractor's competence and insurance. The case of Naylor v Payling (2004) said that Gwilliam could be distinguished on its facts because the splat wall activity in that case was a one-off event, and the defendants had made adequate inquiries as to competence and insurance in any case
• In Naylor the situation was a little different in that the contractor was in the business of supplying door staff to pubs like this. The bouncers supplied by the contractor had been subjected to regular checks and training by the local police and the council, and a compulsory part of the job was to undergo these checks
• The nightclub was then entitled to assume that the bouncers provided were of good character and had been vetted and appropriately trained. Most importantly however, the court said that there wasn't a general duty on the part of the occupiers to check for insurance
• Where a contractor enters premises under the terms of a contract -which could be a building job or other, then section 5(1) of the 1957 Act states that the duty of care that they are owed is exactly the same as that of a visitor - unless a higher standard has been agreed contractually

Defenses Under the 1957 Act

• First defense is that the claimant was contributorily negligent - the defendant can allege this if the claimant's behaviour was less than reasonable. Clare v Perry (2005) is an example of this
• Another defense is "Volenti Non fit Injuria" - the claimant has accepted a risk of injury by voluntarily taking part in a risky activity. The defendant must show that the risk was obvious from the outset and that the injury/damage suffered by the claimant was foreseeable and not made worse in any way by the acts or omission of the defendant
• The law says that there is a legitimate expectation on the part of defendant: for the claimant to act 'reasonably' in the accepted common law sense of the term
• Warnings: The visitor has to have been given sufficient warning of a hazard in order to have the defense that they did all they could to avoid the accident
• This is a less predictable danger than the one in cases involving drowning such as Darby v the National Trust 
• The example given in Roles v Nathan (1963) - the chimney sweep case - was if a defendant had pointed out the safest course of action to a visitor, then they have given an effective warning. If the visitor has no choice but to take a risk, and the defendant merely points out this unavoidable risk, then that is not a sufficiently effective warning

More Cases

• Rae v Mars (1990)
• An experienced surveyor sustained injury falling down a 3 foot drop on entering an unlit storeroom at the defendant's factory. The defendants were liable under the Occupier's Liability Act 1957 5.2 because the claimant had not been given a specific warning of the immediacy of the danger, but the claimant was contributorily negligent by one third because he had neither switched on his torch nor cast his eye to the ground
• Staples v West Dorset (1995)
• This involved a slip by the claimant, whilst taking a photo, on green algae on a quayside wall that had been made famous as the location for a film
• The quayside was a tourist attraction in Lyme Regis (a town that survives on tourism) that people were encouraged to visit. The court said that the risk of slipping was so obvious that no warning sign was necessary
• Issue - if the risk of danger is so obvious in a location that people are encouraged to visit, should the notion of reasonableness extend to the council putting up a barrier or a fence?
• The court said that the whole point of the quayside in question was that it did not have a barrier which would have detracted from its status as a tourist attraction
• English Heritage v Taylor (2016)
• A tourist attraction (castle) had a narrow path above a dry moat which was a 12 foot drop on the other side
• The claimant lost their footing on the path and fell into the moat. The defense was that the risk of harm was obvious, but the CoA said it wasn't, at least not enough to be a defense
• On the facts, as a minimum, there should have been a warning sign in place

1977 Unfair Contract Terms Act

• Valid exclusion clauses in notices - 20 years before the 1977 Unfair Contract Terms Act, prohibiting any valid exclusion for liability for death or personal injury
• Following the Unfair Contract Terms Act 1997 - an exclusion clause trying to absolve a defendant's liability for death or personal injury will only operate successfully so long as it is reasonable to do so. This will depend on whether the claimant has actually accepted a degree of risk, and the extent to which they are equipped to avoid it, in terms of expertise or protective equipment
• BUT - If the visitor has not entered a contract with such a clause in it, then the duty of care expected is the common law, or reasonable one
• UCTA does not apply where visitors have entered premises for leisure, business, or educational purposes
• So - a church hall hired out to a badminton club could avoid liability for injuries, but a leisure centre (specifically designed to host such activities), could not
• Section 2 of the 1957 Act says that someone in the position of the claimant visitor MUST have specifically accepted the risk as a part of the contract of hire
• The Act states that the defendant cannot simply avoid liability just by displaying a notice that it doesn't accept liability for any injuries
• 2015 Consumer Rights Act states that in a consumer contract, you cannot exclude liability for death or personal injury in any event
• Remember, a consumer contract is one where one side is not an expert, is buying a good, or a service, and there is an inequality of bargaining power on the basis. It would be slightly different in a business - to - business contract because the expertise and risk acknowledgment would be greater
• The 1957 Act days that consequential damages will be recoverable, but not for pure economic loss
• HOWEVER - Caparo shows that pure economic loss is recoverable where it is foreseeable and reasonable to do so, if there is reliance, proximity, and the remoteness rules have been satisfied
• Caparo was dealing with information, but the principle of recovery of pure economic loss will apply in injury scenarios