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OCCUPIERS LIABILITY
The Law of Obligations (LW597)
University of Kent
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Week 19
Seminar preparation for Obligations
OCCUPIERS LIABILITY
The common law of negligence imposed a duty of care on the occupier of any premises (including open land as well as buildings, ships and other kinds of premises) towards those coming onto those premises: this duty covered not only the occupier's negligent actions, but the state of the premises themselves. That law was complicated by the different levels of care required vis‐à‐vis contractors, invitees, licensees and trespassers ‐ so far as the last were concerned, there was no duty of care at all ‐ but it has been greatly simplified by codification in the Occupiers' Liability Acts of 1957 and 1984. The Occupiers' Liability Act 1957 deals with an occupier's liability towards lawful visitors, while the 1984 Act deals with the much more limited duty owed to others on the premises (mainly trespassers). A business occupier may also have duties under the Health and Safety at Work Act 1974.
Wheat v Lacon [1966] 1 All ER 582, HL
The owners of a pub put it in the hands of a manager, who was authorised to take lodgers. One such lodger was injured while using an unlit staircase. The House of Lords held that the owners could still be sued as occupiers because they retained some control over the state of the premises. (On the facts of the case they were found not liable, as it was up to the visitor, knowing it was dark, to proceed with care.)
Harris v Birkenhead Corporation [1976] 1 All ER 341, CA
The council DD served a compulsory purchase order in respect of certain property, and the landlords told the tenants to leave. While the house was standing empty a four‐year‐old boy trespassed therein and was injured by falling from an open or broken window. DD were found liable as occupiers: they had asserted the right to control the property, even though they had not physically entered into possession, and should have taken reasonable steps as a matter of common humanity. The term "premises" is not defined either, but is clearly understood to include land, buildings, vehicles and other permanent or temporary structures.
Glasgow Corporation v Taylor [1922] 1 AC 44, HL
A seven‐year‐old boy died from eating poisonous berries from a bush in a public park. The Corporation were held liable: they knew the berries were poisonous, they should have realised they would be attractive to small children, and they had done nothing even to warn of the danger.
LAWFUL VISITORS
The Occupiers' Liability Act 1957 abolishes the common‐law distinction between contractors, invitees and licensees and substitutes a single category of "lawful visitors". A lawful visitor is anyone who is present on the premises by the occupier's invitation, or with the occupier's express or implied permission, or in exercise of a legal right.
Ward v Tesco [1976] 1 All ER 219, CA
A customer P slipped on some spilled yoghurt in a supermarket and was injured. P was a lawful visitor ‐ the supermarket (through its advertising) had expressly or impliedly invited her onto the premises to shop, and therefore owed her a duty of care.
Glasgow Corporation v Taylor [1922] 1 AC 44, HL
A seven‐year‐old boy died from eating poisonous berries from a bush in a public park. The Corporation were held liable: members of the public (including children) were expressly
permitted to enter the park.
Robson v Hallett [1967] 2 All ER 407, DC
A police sergeant and two constables went to X's house to make enquiries. X's son A1 let the sergeant only into the house, but X then told the sergeant to leave. As the sergeant reached the door, A1 jumped on his back and punched him; the constables outside in the garden went to his assistance but were attacked by X's other son A2. AA were convicted of assaulting the police officers in the execution of their duty, and the High Court upheld the conviction. The sergeant did not become a trespasser the moment he was told to go; he was allowed a reasonable time in which to leave the premises and was in the course of doing so. The constables in the garden were not trespassers either; like any members of the public they had implied permission to come to the front door to speak to the householder, and this permission had not yet been withdrawn.
Occupiers' Liability Act 1957 s(6)
For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not. A number of public officials have a right of access to land and/or buildings (including dwelling‐ houses) under certain circumstances even without the occupier's consent. The police have powers to enter and search premises under certain circumstances, and a search warrant can be issued by a magistrate to police officers searching for stolen goods, drugs or pornographic material, or to Customs officers, collectors of taxes, social workers or bailiffs. Officials of the electricity, gas and water companies, TV licensing officers, public health officers, VAT inspectors and firemen on duty also have a right to enter premises without a warrant to perform certain duties.
Thomas v Sawkins [1935] 2 KB 249, DC
A man P hired a hall for a public meeting to protest against certain government policies. D and other police officers demanded admission, and refused to leave when the chairman of the meeting asked them to do so. On the chairman's instructions, P and other stewards then used minimal force to eject the police officers, but P suffered a technical assault by D and brought a private prosecution. The High Court upheld the justices' decision to dismiss the charge, saying the police were entitled to attend the meeting. offered by the 1984 Act, but even that is uncertain in relation to right‐to‐roamers.)
McGeown v Northern Ireland Housing Executive [1994] 3 All ER 53, HL
P was using a public right of way when she tripped in a hole and was injured. Dismissing her appeal, the House said the long‐established rule was still good law, that a person using a public right of way was not a "lawful visitor" to whom a duty of care was owed under the Occupiers' Liability Act 1957.
Occupiers' Liability Act 1957 s(4) as amended
A person entering any premises in exercise of rights conferred by ... section 2(1) of the Countryside and Rights of Way Act 2000 ... is not, for the purposes of this Act, a visitor of the occupier of the premises. Someone other than the legal occupier may issue the necessary invitation or permission. It is generally taken for granted that the occupier's wife (or husband) or children may invite a friend into the family home, and permission to enter commercial premises does not normally require the express authority of the board of directors. A more difficult situation arises where an employee (or junior member of the family) violates an express instruction not to allow visitors.
Stone v Taffe [1974] 3 All ER 1016, CA
A pub manager had been instructed not to let friends remain on the premises after closing time except for a bona fide private party notified in advance to the brewery and the police. He
occasion she had noticed some spilled orange juice in the supermarket, and that in fifteen minutes no one had come to clean it up. The Court of Appeal upheld the judge's award of damages; res ipsa loquitur applied and in the absence of any satisfactory explanation from the defendants the presumption was that they had not taken all reasonable precautions.
Under s(3)(a) of the 1957 Act, the occupier must be prepared for children (if they are permitted to enter the premises) to be less careful that adults, and must allow for the fact that some dangers (e. building sites) may present special attractions for children. An allurement sufficiently powerful may even persuade the court to treat a trespassing child as if he were a lawful visitor. On the other hand, the occupier is entitled to expect responsible parents to exercise some control over their children's activities, particularly while the children are young.
Lynch v Nurdin (1841) 113 ER 1041, QB
A driver left a horse and cart unattended in the street for about half an hour. A six‐ year‐old boy climbed onto the cart, but when one of his friends caused the horse to move he was thrown off and his leg was crushed under the cart wheel. He sued the driver's employer and the jury found in his favour. Upholding this decision, Lord Denman CJ said that although the child was a trespasser and had thereby contributed to his own injury, he had only yielded to a natural temptation. The most blameable carelessness of the defendant's servant having tempted the child, he ought not to reproach the child with yielding to that temptation.
Glasgow Corporation v Taylor [1922] 1 AC 44, HL
A seven‐year‐old boy died from eating poisonous berries from a bush in a public park. The Corporation were held liable: they knew the berries were poisonous, they should have realised they would be attractive to small children, and they had done nothing even to warn of the danger.
Occupiers' Liability Act 1957 s(3)(b)
The circumstances relevant for the present purpose include the degree of care ... which would ordinarily be looked for in such a visitor, so that (for example) in proper cases an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.
Roles v Nathan [1963] 2 All ER 908, CA
The owner of a coke‐fired boiler called in two chimney sweeps to seal a sweep hole in the flue. He warned them there might be gas fumes, and he gave a general warning that the boiler was not to be used again until the sweep hole was sealed. The sweeps tried to seal the flue while the boiler was still in use, and died from the fumes. The Court of Appeal dismissed the claim by the sweeps' families: the sweeps were exercising their profession and should have been aware of the particular dangers.
Warning Notices
An occupier may seek to discharge his common duty of care by giving a verbal warning or displaying a warning notice, though there is no specific obligation to give a warning particularly if the danger is one that should be obvious to any visitor. A suitable warning may be regarded as fulfilling the duty of care, but it is unlikely to be effective (practically or legally) unless it is clearly visible or audible to the visitor, is in language readily understood by the visitor (who may not be able to read English), and indicates the nature of the danger sufficiently clearly to allow the visitor to take steps to avoid it. In Roles v Nathan (below) Lord Denning MR gave the example of a warning notice on the only bridge for miles: if there is no other way of crossing the river, the notice does nothing to enable the visitor to be safe.
Occupiers' Liability Act 1957 s(4)(a)
In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances so that (for example) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe.
Roles v Nathan [1963] 2 All ER 908, CA
The owner of a coke‐fired boiler called in two chimney sweeps to seal a sweep hole in the flue. He warned them there might be gas fumes, and he gave a general warning that the boiler was not to be used again until the sweep hole was sealed. The sweeps tried to seal the flue while the boiler was still in use, and died from the fumes. The Court of Appeal held the warning had been adequate, particularly given that the sweeps were exercising their profession and should already have been aware of the dangers.
Rae v Mars UK [1990] 3 EG 80, Judge White
A surveyor visiting a vacant factory site fell into a deep pit just inside the door of an unlit shed. On the evidence (though this was disputed) he was not warned specifically about the exceptional danger created by the position of the pit, and fell into it as he entered the shed, before he had time to switch on his torch. The judge found DD liable on the basis that they failed to give adequate warning, and awarded damages; but obiter, even if there had been a warning there should also have been some kind of notice or barrier around the pit itself because of the immediacy of the danger.
Cotton v Derbyshire Dales DC (1994) Times 20/6/94, CA
A walker P was injured after falling from a high path along dangerous cliffs in a much‐visited area; there was no notice warning of the danger. The Court of Appeal said the absence of a notice was not a breach of the common duty of care; the danger should be obvious to visitors exercising reasonable care for their own safety.
Darby v National Trust [2001] PIQR P27, CA
A man X drowned while swimming in a pond at Hardwick Hall, and his widow sued under the 1957 Act. Allowing NT's appeal, May LJ said the danger of drowning is small but obvious, so that NT had no duty to warn against it. The absence of any warning about the danger of Weil's disease, which was not obvious, was irrelevant: although such a notice might have deterred X from swimming and thus saved his life, Weil's disease was not the cause of his death.
Although an occupier is generally liable for all dangers on the premises, whether or not he actually created them, he is not generally liable for injury or damage resulting from the work of an independent contractor, if he took reasonable steps to ensure that the contractor was competent and the work properly done.
Occupiers' Liability Act 1957 s(4)(b)
... where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.
Green v Fibreglass Ltd [1958] 2 All ER 521, Salmon J
DD moved into a set of offices and had them rewired by a reputable firm of electricians. Five years later, a cleaner received an electric shock, which was found to be caused by faulty wiring. The fault was not apparent on casual viewing, and no regular checks had been carried out. The judge said DD were not liable for P's injuries; they had discharged their duty of care by engaging competent contractors to do the work, and as they were not themselves knowledgeable in the
conditional on no liability. The main exception to this principle relates to business occupiers, who cannot exclude their liability for death or personal injury, nor their liability for other damage unless the court thinks it reasonable. The relevant legislation is the Unfair Contract Terms Act 1977, which applies (in spite of its name) to tortious as well as contractual liabilities.
Unfair Contract Terms Act 1977 s(3) as amended
In the case of both contract and tort, sections 2 to 7 apply ... only to business liability, that is liability for breach of obligations or duties arising from things done or to be done by a person in the course of a business ...; or from the occupation of premises used for business purposes of the occupier; and references to liability are to be read accordingly but liability of an occupier of premises for breach of an obligation or duty towards a person obtaining access to the premises for recreational or educational purposes, being liability for loss or damage suffered by reason of the dangerous state of the premises, is not a business liability of the occupier unless granting that person such access for the purposes concerned falls within the business purposes of the occupier.
Unfair Contract Terms Act 1977 s.
(1) A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence. (2) In the case of other loss or damage, a person cannot so exclude his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness. The relevant part of the Unfair Contract Terms Act 1977 thus applies only to business occupiers; it does not affect rules made under statutory authority (such as railway bye‐laws) and does not apply to non‐business premises, though the demarcation between business and non‐business premises (what about charities?) is not altogether clear. The second half of s(3) is meant to encourage (e.) farmers to allow educational access to their land without undue fear for the consequences should a visitor be injured because of the state of the premises, but leaves open the question whether (or when) a modest entry charge might tip the balance between non‐ business and business use.
TRESPASSERS
Under the common law, an occupier could not lawfully plant man‐traps, and remained liable for injuries inflicted intentionally or recklessly, but otherwise owed no duty of care to trespassers.
Deane v Clayton (1817) 129 ER 196, CCP
P's dog was killed when it ran into one of many spikes planted by D on his land to trap any animal chasing his hares. The court was evenly divided as to whether P's claim should succeed, but Dallas J obiter clearly regarded it as obvious (and the others did not disagree) that no action would lie in respect of spikes or broken glass placed on top of a wall in clear view.
Bird v Holbrook (1828) 130 ER 911, CCP
A young man P chasing a peahen that had escaped from his property was badly injured by a spring‐gun concealed in D's tulip garden in Bristol. The jury found in P's favour and awarded him £50 damages. The Court of Common Pleas affirmed the decision, saying it was clearly not acceptable to set (without giving any warning) hidden weapons to injure a trespasser. While the "no‐liability" rule might be thought just and reasonable in respect of a burglar, it is less so in respect of a child (or even an adult) trespassing through sheer ignorance. The courts thus tended to infer a licence to enter the premises whenever such an inference was supportable on the facts, and in 1972 the House of Lords went further with a "duty of common humanity".
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Lowery v Walker [1911] AC 10, HL
The plaintiff was attacked by the defendant's savage horse while crossing his land. The path was commonly used as a short cut to the station, and while the defendant had made token protests he had taken no serious action to deter trespassers. The House of Lords said the plaintiff was a
licensee by implication and so could recover for his injuries.
British Railways v Herrington [1972] 1 All ER 749, HL
A 6‐year‐old boy P was badly burned on the electric rail after going through a gap in the fence. The stationmaster knew the fence was in poor condition, and knew children often trespassed, but took no steps to correct this. The House of Lords said the standard of care demanded towards a trespasser was less than that required towards a lawful visitor, because a trespasser by his very nature is behaving unpredictably, and the "reasonable contemplation" principle limits the duty of care accordingly. Moreover, an occupier is not generally liable to an lawful visitor who indulges in activities &c beyond the scope of his licence or invitation, and anything a trespasser does is necessarily in that category. An occupier may try to deter trespassers from going into danger, but it is virtually impossible to prevent their doing so ‐ small boys can get into or up or round almost anything; And since trespassers are themselves misbehaving, it would be wrong to allow their own misbehaviour to create for them rights against others. The House departed from its earlier decision in Addie v Dumbreck [1929] AC 358, however, to find in P's favour, and said that even towards trespassers the occupier has "a duty of common humanity". It is normally enough to make reasonable efforts to keep out or chase off intruders by suitable notice boards or fencing or oral warnings, or a practice of chasing away trespassing children, but if the occupier knows (or as good as knows) that some emergency has arisen whereby the trespasser is in imminent peril, something more may be necessary. The decision in Herrington was clarified and put into statutory form in the Occupiers' Liability Act 1984. This Act covers all those on premises other than lawful visitors ‐ mainly trespassers, but also persons using a right of way across the premises. But the duty it imposes on the occupier, like the "duty of common humanity", is limited to dangers of death and personal injury. The first question in considering possible liability under the 1984 Act is whether in the particular circumstances the occupier had a duty of care at all. Such a duty is not automatic: it arises only where the conditions set out in s(3) are fulfilled, and does not cover "natural" risks run by those exercising the "right to roam".
Occupiers' Liability Act 1984 s.
(3) An occupier of premises owes a duty to another (not being his visitor) in respect of [a risk of suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them] if (a) he is aware of the danger or has reasonable grounds to believe that it exists; (b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); 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.
White v St Albans DC (1990) Times 12/3/90, CA
The plaintiff had fallen into a trench while taking a short cut across the defendants' land. He argued that the fact the defendants had fenced the land showed they were aware of the risk of trespass, so bringing s(3) into effect. The Court of Appeal upheld the trial judge in dismissing this argument: even though the fence was not an effective physical barrier to any young fit person, they said, there was no evidence that trespass was a common occurrence and thus no reason for the defendants to believe that the plaintiff was likely to enter their land.
Revill v Newbery [1996] 1 All ER 291, CA
A man D had suffered a number of thefts from his allotment, so one night he sat in his shed with a loaded shotgun. When he heard noises outside the shed he poked the shotgun through a hole in the door and pulled the trigger, wounding P in the arm and chest. It was conceded that P was a trespasser and (probably) intended to burgle the shed. P sued for his injuries and won £4000, his contributory negligence having been assessed at two‐thirds. D knew there was an imminent danger (a spray of shot) on his premises, and knew P was in the vicinity (even if not in the direct line of fire), and that was enough for him to owe a duty of care under the 1984 Act.
frequently, but that it was "just a chance she took". The House of Lords said P was clearly volenti to the risk, and her case therefore failed.
Ratcliff v McConnell (1998) Times 3/12/98, CA
A 19‐year‐old student P climbed over a locked gate late one night and dived into the swimming pool (which was closed for the winter and partially drained). He apparently dived into the shallow end, and hit his head on the bottom, causing injuries which left him almost totally paralysed. He sued the College DD under the Occupier's Liability Act 1984 and the trial judge found in P's favour subject to a deduction for contributory negligence. Allowing DD's appeal, Stuart‐Smith LJ said there were several warning notices around the pool, and the dangers of diving into water of unknown depth were too well‐known to need any further express warning. P had accepted the risks, and under s of the Act his claim must fail.
Scott & Swainger v Associated British Ports [2000] All ER (D) 1937, CA
In separate incidents, two teenage boys were badly injured while "train‐surfing" on DD's premises, and brought claims under the Occupiers ‘Liability Act 1984. The trial judge found as facts that the boys would not have been deterred by the provision of a fence, and that they were fully aware of the risks they were taking. The Court of Appeal agreed: since the absence of a fence was not the cause of CC's injuries, their claim was bound to fail. It is worth noting that the 1984 Act, unlike the 1957 Act, makes no provision for the exclusion of any liability by notice or otherwise. Parliament surely could not have intended trespassers to have any greater protection than lawful visitors, and many lawyers therefore believe that the 1984 Act sets out a minimum standard applicable in all cases, even where liability to lawful visitors has been excluded under the terms of the 1957 Act. There is no apparent authority for such a position, but it is hard to produce a principled argument against it.
OCCUPIERS LIABILITY
Module: The Law of Obligations (LW597)
University: University of Kent
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