occupiers liability

• Ogwo v Taylor- firefighter injured, fire started negligently by owner of premises, no claim under 1957 OLA because injury did not arise from state of premises
• Glasgow v corporation- council took no action against poisonous berries, they knew they were there, liability is based on the council's awareness
• Bourne leisure v marsden- 2 year old drowned in pond, fence wasnt high enough to prevent a child from climbing over, accidents occur when there is no one at fault
• Herrington v BRB 1972- child trespasser badly injured- "common humanity" prior to 1984 covers liability for known hazards and the likelihood of tresspassing
• young v kent- boy climbed on roof, council knew the likelihood of trespassing by young people dangerous condition of skylight and cost to fix was low so there was liability
• OLA 1957- lawful visitors
• OLA 1984- trespassers
• Defences under 1984- Westwood v post office- ignored warning sign which was sufficient
• s.1(5)OLA 1984-warning signs can be effective defences as long as clear
• s.1(4)requires occupiers to take such care as is reasonable to see that the trespasser does not suffer any injury on the premises by the danger
• s.1 (3)OLA 1984- imposes a duty on occupier for the trespasser, provided:aware of danger or expects it exists knows or has reasonable grounds to believe the trespasser may come into the vicinity of the dangercan take reasonable steps to offer some protection against the danger
• s.2(4)(a)- OLA 1957- warning notices- occupier gives effective warning of the danger provides a complete defence
• s.2(4)(b) OLA 1957- (defence of independent contractors) occupier can argue that contractor is liable if:it was reasonable to hire the contractor precautions had been taken to ensure the contractor was competent reasonable checks had been made on the contractors work
• s.2(3)(b) OLA 1957- occupier can expect tradespeople and visitors with special skills to guard against their own risks specific to their trade/ skill
• s.2(3)(a)-OLA 1957- occupier must be prepared for children to be less careful that adults so higher standard of care
• s.2 (2) OLA 1957-occupiers take reasonable care to keep all visitors reasonably safe during their visit
• OLA 1984 (tresspasser), OLA 1957 (lawful visitor)
• who is an occupier?

  Wheat V Lacon- manager of pub was still occupier even though did not own premises he was in control
• premises includes: land, buildings, houses, vehicles, fixed/ movable structures e.g. inflatables lifts and ladders
• danger has to arise due to the state of the premises: Geary v Whetherspoon- C's decision to slide down bannister bannister was not in bad state as not designed to hold a persons weight, unforeseeable action to wheterspoon
• lawful visitor is someone who has expressed implied permission to enter the premises, contractual/ legal right to enter premises
• laverton v kiapasha takeaway- shopowners had taken reasonable care by putting up wet floor sign no duty to keep a visitor completely safe only reasonably
• if person has been going there for years and occupier has not said anything during those years it makes the trespasser a lawful visitor so would be 1957
• lawful visitors can claim for:  death, personal injury or property damage
• trespassers can claim for: ?
• Occupier

  Not defined in statute, but test is one of control

  ● Wheat v Lacon (manager of pub had

  control over premises)
• Premises

  Includes land, buildings, houses as well as

  vehicles and fixed or moveable structures, e.g.

  lifts, ladders, bouncy castles
• Occupiers’ Liability Act 1957

  Applies to lawful visitors

  ● Someone who has express or implied permission to enter premises, and those with a

  contractual or legal right to enter

  ● Visitors may claim for personal injury and damage to property arising from state of premises
• 1957

  s.2(2) Common duty of care

  ● A duty take such care as is reasonable in the circumstances to keep the visitor reasonably safe

  for the purpose of their visit

  ○ Laverton v Kiapasha Takeaway (mopping and wet floor signs were sufficient to

  discharge duty)

  ○ Rochester Cathedral v Debell (uneven paving slabs did not pose a real source of danger,

  visitor could be expected to take reasonable care for own safety)
• 1957

  s.2(3)(a) Child visitors

  ● Occupier must be prepared for children to be less careful than adults

  ○ Jolley v Sutton LBC (boys playing on abandoned boat)

  ○ Glasgow Corporation v Taylor (poisonous berries were attractive to children)

  ● BUT occupier can expect parental supervision where child is particularly young

  ○ Phipps v Rochester Corporation (5-year-old playing unaccompanied)
• 1957

  s.2(3)(b) Professional/skilled visitors

  ● Occupier can expect tradespersons to guard against special risks associated with their job

  ○ Roles v Nathan (chimney sweeps inhaled poisonous fumes)
• 1957

  s.2(3)(b) Professional/skilled visitors

  ● Occupier can expect tradespersons to guard against special risks associated with their job

  ○ Roles v Nathan (chimney sweeps inhaled poisonous fumes)
• 1957

  Defences to a claim by a lawful visitor

  • s.2(4)(a) Warning notices
  • Must give effective warning of danger and enable visitor to be reasonably safe
  • Rae v Marrs (sign couldn’t be seen in dark)
  • Obvious dangers do not require a warning sign
  • Staples v West Dorset (algae-covered rocks)
• • 1957
  • defences to claim of lawful visitor
  • s.2(4)(b) Danger created by an independent contractor
  • Must have been reasonable to entrust work to a contractor
  • Haseldine v Daw (lift repair)
  • Reasonable precautions were taken to ensure contractor was competent
  • Bottomley v Todmorden Cricket Club (firework display team were uninsured)
  • If possible occupier should inspect the work
  • Woodward v Mayor of Hastings (visual inspection would have revealed steps were still icy)
  • Contributory negligence
  • Consent (volenti)
• Occupiers’ Liability Act 1984

  Applies to trespassers

  • A person who has no permission or authority to be on premises, or a visitor who has gone beyond their permission
  • Limited to claims for personal injury only arising from state of premises
• 1984

  s.1(3) Conditions for imposing a duty

  A duty is not automatically imposed, C must prove all three elements:

  1. Occupier is aware of danger or has reasonable grounds to believe it exists

  • Rhind v Astbury (occupier had no knowledge of danger at bottom of lake)
• 1. 1984 s. 1 (3) conditions for imposing duty
  2. Occupier knows or has reasonable grounds to believe trespasser may come in vicinity of danger

  • Higgs v Foster (occupier had no reason to suspect police officer carrying out surveillance)
  • Donoghue v Folkestone Properties (no reason to expect C to jump off pier in middle of a winter’s night)

  1. Risk is one which, in all the circumstances, the occupier may reasonably be expected to offer some protection against

  • Tomlinson v Congleton (it wasn’t reasonable to offer protection from a natural feature of the lake)
• 1984

  s.1(4) Duty to trespassers

  To take such care as in all the circumstances is reasonable to see that the trespasser does not suffer injury on the premises by reason of the danger

  • No liability for obvious dangers
  • Ratcliff v McConnell (drunk student dived in shallow end of outdoor pool)
  • Time of day/year may impact on liability
  • Donoghue v Folkestone Properties (see above)
  • No need to spend lots of money to make the premises safe
• 1984

  s.1 (4) duty to trespassers

  • Tomlinson v Congleton (council had warned people not to swim in lake and had plans to make the lake less accessible)
  • Same rules apply for child trespassers
  • Keown v Coventry NHS (11-year-old playing on fire escape, danger didn’t arise due to state of premises)
• 1984

  Defences to a claim by a trespasser

  • s.1(5) Warning notices
  • Must make danger clear
  • Westwood v Post Office
  • Whether a warning will be sufficient for a child trespasser may depend on the age and understanding of the child
  • Contributory negligence
  • Consent (volenti)