Lecture # 6 Occupier s Liability

Transcription

1 Lecture # 6 Occupier s Liability By: Salik Aziz Vaince [ ] Tort Liability For Premises Introduction In law, the tort liability for premises explains that land owners had no liability to other persons who were being accidently hurt or injured while passing in, through or over their land. This section of law describes the duties imposed by the law of tort on occupiers in relation to the maintenance and use of their premises. Occupiers have a duty to maintain the premises safely for the benefit of third parties on or outside premises. Occupiers' liability generally refers to the duty owed by land owners to those who come onto their land. However, the duty imposed on land owners can extend beyond simple land ownership and in some instances, the landowners may transfer the duty to others, hence the term occupier rather than owner. The term occupier itself is misleading since physical occupation is not necessary for liability to arise. Occupiers' liability is perhaps a distinct form of negligence in that there must be a duty of care and breach of duty, causing damage. The rules of remoteness apply to occupier s liability in the exact same way that they apply to negligence claims. Liability can arise on occupiers for omissions since their relationship gives rise to duty to take action to ensure the reasonable safety of visitors. The law in this area is now statutory and is governed by the 1957 and 1984 Occupiers Liability Acts. The 1957 and 1984 Acts replaced a somewhat complex regime of common law, distinct from that developed from Donoghue v Stevenson, under which an occupier owed different standards of duty depending on the status of the person who came onto his land. Those entering under a contract were owed the highest duty, while progressively lower duties were owed to those entrants the law classified as invitees, licencees or trespassers. The position today is that the Occupiers Liability Act 1957 governs liability to lawful visitors and the 1984 Act governs the duty owed to those entrants loosely referred to as trespassers. The occupiers also must ensure that the use of premises did not cause nuisance to other people. It is very important for business organisation to consider the tort liability for premises because business premises visited often by large number of people every day and it will give a big impact to the business occupiers. So, if the business occupiers receive a negative impact, the business activities will definitely may be potentially hazardous. VLC Publishers Page 1

2 Common law before The Occupiers Liability Act 1957 Though the law of occupiers' liability has been regulated by statute since 1957, it is still necessary to understand the pre-existing common law as the concepts contained in the statute were developed first by the cases. The common law was complicated and not entirely just as it required the categorization of entrants onto property into one of three or four categories. The duty of the occupier varied according to which category the entrant fell into. At common law the duties of an occupier to the persons were cast in the following order: 1. Entry under Contract: Entry into premises could be governed by contract, and that contract might have specified a very high level of liability for any defect in the premises. But such cases were very rare. 2. Invitee: In the absence of any express contractual provision, the invitee had the highest level of protection. P was an invitee where O had a material interest in the purpose for which P entered, as e.g. a shopkeeper in relation to a person entering to buy goods. In such a case, O was liable if he failed to use reasonable care to prevent damage to P from any unusual danger of which O knew or ought to have known. Persons such as police officers entering premises under lawful authority were normally treated as invitees. 3. Licensee: Any other person on the premises with O s permission, express or implied was a licensee. e.g., a person entering D s shop to ask the way to the railway station. Here, O s liability extended only to concealed dangers or traps known to O but not to P. Social visitors (in whom O had no material interest) were treated as licensees. 4. Trespasser: At this stage, O was under no liability at all for injury resulting from O s negligence - the only duty towards trespassers was not to injure them intentionally or recklessly. In the 1950 s the common law was considered to be unsatisfactory, on account of: 1. The artificial and often arbitrary nature of the distinction between licensee and invitee, 2. The draconian (harsh) decision that an occupier owed no duty of care in respect of negligent injury to a trespasser and 3. The occupier owed no duty to a visiting workman who continued to work though aware of a danger. As a result Parliament enacted the Occupier s Liability Act 1957 and subsequently the Occupier s Liability Act With rare exceptions, persons entering premises now fall into only THREE legal categories - each with its own level of liability. Present categories are: Persons entering under a contract which contains an express provision imposing a very high standard of care (now less significant than the formerly ;) Visitors coming under the 1957 Act, and persons entering as non-visitors within the 1984 Act. Robert Addie and Sons v Dumbreck [1929] AC 358 Facts: The defendant owned View Park Colliery which was situated in a field adjacent to a road. There was a fence around the perimeter of the field although there were large gaps in the fence. The field VLC Publishers Page 2

3 was frequently used as a short cut to a railway station and children would use it as a playground. The defendant would often warn people off the land but the attempts were not effective and no real attempt was made to ensure that people did not come onto the land. A child came on to the land and was killed when he climbed onto a piece of haulage (The activity of transporting goods by truck) apparatus. Held: No duty of care was owed to trespassers to ensure that they were safe when coming onto the land. The only duty was not to inflict harm willfully. Viscount Dunedin: "In the present case, had the child been a licensee, I would have held the defenders liable; secus if the complainer had been an adult. But, if the person is a trespasser, then the only duty the proprietor has towards him is not maliciously to injure him; he may not shoot him; he may not set a spring gun, for that is just to arrange to shoot him without personally firing the shot. Other illustrations of what he may not do might be found, but they all come under the same head injury either directly malicious or an acting so reckless as to be tantamount to malicious acting." Invitee can be broken down into two: contractual invitee (i.e. in a hotel) or invitee (i.e. customer in a shop), and the duty to make the premises safe is owed only to the contractual invitee. The status of the customer was addressed in: Indermaur v Dames (1866) LR 1 CP 274 Where it was said that his protection does not depend upon the fact of a contract being entered during the stay of the customer in the shop, but rather that the customer has come into the shop because of a tacit invitation by the shopkeeper. A customer is entitled to protection against unusual damage of which the occupier knows or ought to know. 'Invitee' is a legal term which means that the entrant is on the premises for a purpose in which the occupier has some concern, whether pecuniary, material or business interest. Thus inviting a friend to your house would not mean that they are an invitee but rather a licensee. It was often the case that a trespasser would argue they were an implied licensee as this meant they were owed a higher duty of care. The rule was different for children who, according to the court, could know nothing of the law of trespass or license. Definition of occupiers Basically, occupiers is a person who is in physical possession of premises or a person who has responsibility for, and control over, the condition of premises, the activities conducted on those premises and the persons allowed to enter those premises. From the definition, we can generally say that occupiers of premises are the owner of the land. The occupier can be more than one at a time. According to Wheat V Lacon in year 1966, an occupier was defined as the person in control of the premises at the time of the accident. Wheat v Lacon [1966] AC 552 House of Lords Facts: The claimant and her family stayed at a public house, The Golfer s Arms in Great Yarmouth, for a holiday. Unfortunately her husband died when he fell down the stairs and hit his head. The stairs were steep and narrow. The handrail stopped two steps from the bottom of the stairs and there was no bulb in the light. The claimant brought an action under the Occupiers Liability Act 1957 against the Brewery VLC Publishers Page 3

4 company, Lacon, which owned the freehold of The Golfer s Arms and against the Managers of the Pub, Mr & Mrs. Richardson, who occupied the pub as a licensee. Held: Both the Richardsons and Lacon were occupiers for the purposes of the Occupiers Liability Act 1957 and therefore both owed the common duty of care. It is possible to have more than one occupier. The question of whether a particular person is an occupier under the Act is whether they have occupational control. Lacon had only granted a license to the Richardsons and had retained the right to repair which gave them a sufficient degree of control. There is no requirement of physical occupation. However, it was found that Lacon was not in breach of duty since the provision of light bulbs would have been part of the day to day management duties of the Richardsons. Since the Richardsons were not party to the appeal the claimant s action failed. Lord Denning: 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 the person coming lawfully there is his " visitor ": and the " occupier " 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. Suffice it that he has some degree of control. He may share the control with others. Two or more may be occupiers". And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor who is injured in consequence of his failure, but each may have a claim to contribution from the other. Harris V Birkenhead Corp in 1976 Facts: The claimant Julie Harris was 4 years old when she wandered off from a children s play park with her friend. They entered a derelict house which was due for demolition. The house had not been secured and the door was open. They went upstairs and Julie sustained serious injury when she fell from a window. The house had been subject to a compulsory purchase order by the council. The house had been owned by a private landlord and the tenant was offered alternative accommodation by the council. The tenant informed the council that she did not want to take up the offer of accommodation and made her own arrangements and left the property. The council served 14 days notice on the owner of their intention to take possession of the property, but never actually took physical possession at the expiry of the 14 days. Held: The Council had the legal right to take possession to secure the property, actual physical occupation was not required to incur liability as an occupier. The council was therefore liable. Definition of premises On the other hand, premises are widely defined by the Act and cover not only buildings and open spaces but also any fixed or moveable structure which include any vessel, vehicle or aircraft. For example, there are many types of premises. Some of the examples include: firstly, staging, scaffolding and similar structures erected on land whether affixed to the land or not; secondly, poles, standards, pylons and wires used for the purpose of transmission of electric power or communications or transportation of passengers, whether or not they are used in conjunction with the supporting land; VLC Publishers Page 4

5 thirdly, railway locomotives and railway cars; fourthly, ships, and lastly trailers used for, or designed for use as, residences, shelters or offices Based on the case study, the premises that can be assumed were the hotel. It is because, the hotel is the building and open spaces where John was invited to the birthday party. To give a clear view, this is some example of the premises as well: - Football stadium - Lift - Ladder - Ship - Hospital - House - Pharmacy - Portable caravans This has been held to include a wide variety of things including a large excavating machine in Bunker V Charles Brand in year Bunker V Charles Brand in 1969 The visitor s knowledge of dangerous machine that he was to modify for the occupiers did not absolve the occupiers of liability under section 2(4) and (5), when the visitors fell into rollers. Based on the scenario, the five star hotels it is the premises as well as the occupiers. The hotel building is the location for Vincent birthday party where large number of people will come and visit. Definition of visitors The visitors can be describe as a person who is an entrant as of right, a person who is lawfully present on premises by virtue of an express or implied term of a contract, any other person whose presence on premises is lawful, or a person whose presence on premises becomes unlawful after the person's entry on those premises and who is taking reasonable steps to leave those premises. In addition, the visitor also is not a trespasser. Based on the case scenario, John is the visitors for the five star hotels as he was invited by his friends Vincent for birthday party. John was invited to the birthday party and the birthday party will be conducted at the banquet hall. Greenlagh V BRB in 1969 Facts: C, a cyclist, suffered an injury to his right leg by allegedly striking his foot against the edge of a concrete trench whilst cycling down a track, which passed through D s yard. C alleged that D owned and was an occupier of the track, pursuant to the Occupiers Liability Acts (OLA) 1957/1984. In the alternative, C alleged that D arranged for work to be done in the area which created a danger, thereby causing C s injury. D denied liability on the basis that the route taken by C was a public right of way and therefore not a visitor within the OLA. Further, D denied any misfeasance. The issue of whether the track was a public right of way was dealt with as a preliminary issue at trial. D s evidence confirmed that for at least the past 20 years the track had been frequently used by members of the public; and that for 25 years its premises had been in the original place or site it had not interfered with the track. Held: The track had been enjoyed by members of the public for in excess of 20 years, and therefore section 31 of the Highways Act 1980 applied. C therefore used the track as of right rather than as a visitor. The principle in Gautret v Egerton (1867), as applied in McGeown v Northern Ireland Housing Executive [1995] 1 AC 233 was therefore relevant. The principle established that if a way is dedicated VLC Publishers Page 5

6 to the public, it should be taken as it is, inclusive of any ruts or holes, etc. However, if D dug a pit in such a public way, liability could attach for the consequences. Conversely, a lack of action by D would not attract liability. In addition, the case of Greenhalgh v British Railways Board [1969] 2 QB 286, states that those crossing a public or private right of way are not invitees or visitors. As a result, C s claim under the OLA failed. As to C s allegation that by arranging for British Gas/Transco to lay a gas pipe in 1996, a disparity in levels between the backfilled trench and concrete surface was created, the court held that it was for C to prove that such backfilling gave rise to a dangerous level of disparity between surface levels. C was required to prove that the disparity resulted from an act of D or their contractors. The court held that there was no evidence of a positive act of misfeasance by D, which caused C s fall and injury, and therefore C s claim was struck out. McGeown v Northern Ireland Housing Executive [1994] 3 All ER 53 House of Lords The claimant was injured when she tripped in a hole on land owned by the defendant. The land was a public right of way. It was held that the defendant was not liable as the claimant was not a lawful visitor under the Occupiers Liability Act 1957 because she was exercising a public right of way. The occupiers liability to people on the premises The occupier's liability is defined as a liability of a person who controls land or building in regards to damages caused to others who enter there on. The occupier must take reasonable care to ensure that the visitor is reasonably safe for the purpose for which the visitor is on the land. The liability applicable to an occupier of premises to visitor can be described when the occupiers take a prevention steps in order to avoid any injuries and damages. Hence, the liability applicable to the occupier for the visitors can be divided into two ways which are from the negligence activities and dangerous premises. Negligence activities In negligence activities, the occupiers who carry out activities on their land without taking reasonable care may be liable under the general principles of negligence. Ogwo V Taylor in 1987 Facts: The defendant negligently set the roof space on fire while using a blowtorch to burn off paint from weatherboarding on his house. The claimant, a firefighter was injured in the ensuing conflagration. Held: the defendant was liable as the claimant's injuries were a reasonably foreseeable consequence of the defendant's negligent behaviour. Dangerous premises In addition, the occupiers also must consider the liability applicable for the dangerous premises. The occupiers have a legal duty to maintain the structure of their premises in a reasonably safe condition. This part of law have is covered by statute. The acts involved are Occupiers Liability Act 1957 and Occupiers Liability Act The application of the act is subject to section 3 (4), and sections 4 and 9, this Act determines the care that an occupier is required to show toward persons entering on the premises in respect of dangers to them, or to their property on the premises, or to the property on the VLC Publishers Page 6

7 premises of persons who have not themselves entered on the premises, that are due to the state of the premises, or to anything done or omitted to be done on the premises, and for which the occupier is responsible by law. The extent of the occupiers duty of care Duty of care to the visitors The occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person's property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises. The occupiers of the premise must concern about the visitors for example the safety of the visitors. It is need to be considered as the occupiers noticed that the duty of care is limited to taking reasonable care to ensure reasonable safety and only for the purpose of that visit. It means that, the occupiers consent to a visitor's presence is limited by the purpose of the visit. Applicable of common duty of care The common duty of care is applied when there is a relation to: 1. The condition of the premises 2. Activities on the premises 3. The conduct of third parties on the premises Simms V Leigh RFC in 1969 The visitor was injured by hitting concrete wall surrounding rugby field. The occupiers not liable as injury foreseeable but so improbable that it was not necessary to guard against it. Occupiers also accepted risk of playing on field complying with bye-laws. Cunningham v Reading FC in 1991 The occupiers liable to police injured by concrete loosened from terraces. The occupiers neglected to take precautions against clearly foreseeable acts of violent supporters. Children An occupier must be prepared for children to be less careful than adults. Therefore, if an occupier admits children to the premises the child visitor must be reasonably safe. Glasgow Corp V Taylor in 1922 Facts: The seven year old died after eating poisonous berries in park. The occupiers knew of the berries but took no precautions against children. Held: good cause of action to proceed to trial. Pearson V Coleman Bros in 1948 The seven year old girl left circus tent to find toilet; walked past lion s cage in separate zoo enclosure and mauled (Injure badly by beating). The occupier was liable as the prohibited area had not been adequately marked off. Phipps V Rochester Corp in 1955 VLC Publishers Page 7

8 The occupier is not liable to boy aged 5 who fell into trench while walking across open ground with his sister aged 7. No breach of duty occurred as reasonable parents will not permit young children to be sent into danger without protection. Titchener v BRB in 1983 There is no duty owed to 15 year old walking across a railway line at night, hit by train. The visitors knew of the line, dangers involved and the need to look out for trains. Jolley v Sutton LBC in 2000 The occupiers was liable to boy injured repairing boat abandoned on council land. The occupiers knew of boat and that it was a danger. Common calling 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 in 1963 Facts: The claimants were asphyxiated (Deprive of oxygen and prevent from breathing) by fumes when they carried out flue repairs in a boiler room while the boiler was alight. Held: the occupier was not liable for their deaths; their knowledge and experience of this kind of work should have made them extinguish the boiler before starting work. Salmon v Seafarer Restaurant in 1983 The occupier owed same duty of care to fireman attending premises to extinguish a fire, as he owed to other visitors under s2 but the fireman was expected to exercise the skill of an ordinary fireman. The occupier was liable. Warnings 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. White v Blackmore in 1972 One notice mentioned: "Warning to the public. Motor racing is dangerous ". This warning was effective when competitor killed whilst watching a race from the track. Cotton v Derbyshire Dales DC in 1994 Times LR 20 June - The occupier did not have to warn about dangerous cliffs on a high path. The danger was obvious to visitors. Staples v West Dorset DC in 1995 Times LR 28 April - The occupiers did not have to warn about algae which might be slippery. Independent contractors Where a danger 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 will not to be answerable for the danger if in all the circumstances he acted reasonably in entrusting the work to an independent contractor and took such steps (if any) as he reasonably ought to in order to satisfy himself that the contractor was competent and the work was properly done. VLC Publishers Page 8

9 Haseldine v Daw in 1941 The engineer was liable to the visitor injured by crashing lift in a block of flats. The occupier was not liable. Woodward v Mayor of Hastings in 1945 The school governor was liable for negligent cleaning of steps by school cleaner. Defences In defences, section 2(5) has provides that while knowledge of danger does not deprive the visitor of a remedy, the occupier will not be liable in respect of risks willingly accepted as his by the visitor (volenti non fit injuria). Burnett v BWB in 1973 The visitors injured by rope towing a barge he was on, snapping. A warning notice was inapplicable as he was an employee. Volenti was no defence as there was no free and voluntary agreement to the risk of injury. Damages may be reduced, under the Law Reform (Contributory Negligence) Act 1945, where the visitor fails to take reasonable care for his own safety. Revill v Newbery in 1996 This is a case involving a trespasser who was two-thirds contributory negligent. Exclusion of liability The occupier can extend, exclude, restrict or modify the extent of his liability to visitors by agreement or otherwise, insofar as he is free to do so according to section 2(1). Where premises are occupied for business purposes: Any attempt to exclude liability for death or personal injury caused by negligence, including breach of the common duty of care under the 1957 Act, is void (Unfair Contract Terms Act 1977, 2(1). Any attempt to exclude liability for property damage will be subject to the reasonableness test (Unfair Contract Terms Act 1977, section 2(2). Answers on can the John Parents take an action on the hotel According to the case given, John was invited by his friend, Vincent for his 21st birthday party at five star hotel. This statement have clearly state that John was the visitor and the occupier is the five star hotel. On the other hand, John had brought together his younger brother name as Alex to the party, and we can recognize that Alex was a trespasser as he was not invited to the party. The crisis occurred when while walking around the lobby, the younger brother Alex had stumble over a flower pot and fell. The accident had caused Alex suffered minor bruises and fractured his wrist bone. The parents of the two brothers would like to sue the hotel management for carelessly placing the flower pot at the lobby. After considering the factors and condition of the case given, John's parents cannot sue the hotel management under occupier's liability. It is because; Alex was only the trespasser at the premises. The parents cannot sue the hotel management due to privity of contract which only involves John and hotel management. VLC Publishers Page 9

10 It means that, if any accident happens to John, then the parents can sue the hotel under Occupiers Liability Act 1957 which the statue must be obeyed by the occupiers that is the hotel to provide a duty of care. Let say if John who suffers the minor bruises and wrist bone fractured, the parents can sue the hotel because under the Occupiers Liability Act 1957, the occupiers must be responsible of their visitors safety. However, in the case given, the person who was injured is Alex. The parents cannot sue the hotel management as Alex was only a trespasser who was not invited to the party. Therefore, the hotel management shall not be liable for any damages and injuries happen to trespassers. The hotel management may only be liable if the injuries and damages happened to the visitors of the premises. This is due to the hotel management is following the Occupiers Liability Act 1957 and Occupiers Liability Act As the parents is still adamant to sue the hotel management, I would advise the parents to sue the hotel management following the standard of care in negligence. As in negligence, there is an existence of a duty to take a reasonable care. The injured visitor will have to prove that the occupier failed to take reasonably adequate precautions to prevent the injuries or damages. The reasonable action is determined according to the circumstances. To relate with the case, John parents can sue the hotel management for misplacing the flower pots at the lobby. It is because, children tend to play around at the lobby as children usually do not bother their safety and this situation is dangerous for them. Occupiers Liability Act 1957 Generally, an Occupiers Liability Act 1957 is the act for visitors. This act describe An Act to amend the law of England and Wales as to the liability of occupiers and others for injury or damage resulting to persons or goods lawfully on any land or other property from dangers due to the state of the property or to things done or omitted to be done there, to make provision as to the operation in relation to the Crown of laws made by the Parliament of Northern Ireland for similar purposes or otherwise amending the law of tort, and for purposes connected therewith. The Occupier's Liability Act 1957 imposes upon the occupier a common law duty of care. The occupier must "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 standard of care an occupier is expected to meet is the standard of "a reasonable occupier", no different from the usual common law negligence standard of care. The common duty of care is already explained above. The Occupiers Liability Act 1957 imposes a common duty of care on occupiers to lawful visitors. By virtue of s.1(3)(a), the Act applies not only to land and buildings but also extends to fixed and movable structures, including any vessel, vehicle or aircraft. The protected damage under the Occupiers Liability Act 1957 includes death, personal injury and damage to property. Lawful visitors Lawful visitors to whom occupiers owe the common duty of care for the purposes of the Occupiers Liability Act of 1957 include: Invitees - S.1(2) Occupiers Liability Act those who have been invited to come onto the land and therefore have express permission to be there. VLC Publishers Page 10

11 Licensees - S.1(2) Occupiers Liability Act those who have express or implied permission to be there. According to S. 1(2) this includes situations where a licence would be implied at common law. Those who enter pursuant to a contract - s.5(1) Occupiers Liability Act For example paying guests at a hotel or paying visitors to a theatre performance or to see a film at a cinema. Those entering in exercising a right conferred by law - s.2(6) Occupiers Liability Act For example a person entering to read the gas or electricity metres. Issues under The Occupiers Liability Act 1957 Who is an occupier? The Occupiers Liability Act 1957 does not define the term occupier but stipulates that the rules of the common law shall apply (s 1(2)). The test is one of control and not exclusive occupation. Wheat v Lacon (1966 HL) Facts: P and her husband were paying guests in a public house owned by a brewery [Lacon] and managed by Mr. and Mrs. Richardson. P s husband was killed when he fell down stairs in a part of the premises used by the Richardsons as a private dwelling. The handrail on the stairs did not reach to the foot of the stairs. P sued Lacon and the Richardsons for breach of duty under the 1957 Act. Held: The House of Lords held that there was nothing to prevent two or more persons from being occupiers. As Lacon & Co had the legal right to control the flat, they were its occupier, so were liable in respect of the state of the premises. So, Mr. and Mrs. Richardson were also, as they controlled the alleged part of the premises under a licence-agreement, had a considerable degree of control. Ferguson v Welsh [1987] 1 WLR 1553 House of Lords Facts: Sedgefield District Council, in pursuance of a development plan to build sheltered accommodation, engaged the services of Mr Spence to demolish a building. It was a term of the contract that the work was not to be sub-contracted out. In breach of this term, Mr Spence engaged the services of the Welsh brothers to carry out the demolition who in turn engaged the services of Mr Ferguson to assist. Mr Ferguson suffered serious injury resulting in permanent paralysis when a wall he was standing on collapsed due to the unsafe practices operated by the Welsh brothers. He brought an action against the Council, Mr Spence and the Welsh brothers. The trial judge held that the Welsh Brothers were liable but that Mr Spence and the Council were not liable. Mr Ferguson appealed against the finding against the Council since the Welsh Brothers (or Mr Spence) had the funds or insurance to meet liability. Held: The appeal was dismissed. Mr Ferguson was a lawful visitor despite the clause forbidding subcontracting since Mr Spence would have apparent or ostensible authority to invite him on to the land. However, the danger arose from the unsafe system of work adopted by the Welsh Brothers not the state of the premises. Whilst there was evidence that Mr Spence had sub-contracted demolition work to those executing unsafe practices on previous occasions, there was no evidence that the Council were aware of this. Bailey V Armes (1999) A couple were not liable under the Occupiers Liability Acts for injury caused to a friend of their son who played on a neighbouring roof with him as they were not in occupation of the roof. VLC Publishers Page 11

12 Merely control over the main means of access to premises belonging to another is not sufficient control to make out occupier status. Whether occupational control exists is a question of degree Revill v Newbery [1996] 2 WLR 239 Court of Appeal Facts: Mr Newbery was a 76 year old man. He owned an allotment which had a shed in which he kept various valuable items. The shed was subject to frequent breaking and vandalism. Mr Newbery had taken to sleeping in his shed armed with a 12 bore shot gun. Mr Revill was a 21 year old man who on the night in question, accompanied by a Mr Grainger, and went to the shed at 2.00 am in order to break in. Mr Newbery awoke, picked up the shot gun and fired it through a small hole in the door to the shed. The shot hit Mr Revill in the arm. It passed right through the arm and entered his chest. Both parties were prosecuted for the criminal offences committed. Mr Revill pleaded guilty and was sentenced. Mr Newbery was acquitted of wounding. Mr Revill brought a civil action against Mr Newbery for the injuries he suffered. Mr Newbery raised the defence of ex turpi causa, accident, selfdefence and contributory negligence. Held: The Claimants action was successful but his damages were reduced by 2/3 under the Law Reform (Contributory Negligence) Act 1945 to reflect his responsibility for his own injuries. On the application of ex turpi causa Neill LJ: "For the purposes of the present judgment I do not find it necessary to consider further the joint criminal enterprise cases or the application of the doctrine of ex turpi causa in other areas of the law of tort. It is sufficient for me to confine my attention to the liability of someone in the position of Mr. Newbery towards an intruding burglar. It seems to me to be clear that, by enacting section 1 of the 1984 Act, Parliament has decided that an occupier cannot treat a burglar as an outlaw and has defined the scope of the duty owed to him. As I have already indicated, a person other than an occupier owes a similar duty to an intruder such as Mr. Revill. In paragraph 32 of their 1976 Report the Law Commission rejected the suggestion that there should be no duty at all owed to a trespasser who was engaged in a serious criminal enterprise." Ex turpi causa non oritur actio: (Latin for "from a dishonorable cause; an action does not arise") is a legal doctrine which states that a plaintiff will be unable to pursue legal remedy if it arises in connection with his own illegal act. Though the actual decision was made as to OLA 1984, presumably it had the same application in OLA AMF International Ltd v Magnet Bowling Ltd (1968) A contractor undertaking a large building development would be an occupier of the site. An owner may also be an occupier simultaneously. Page v Read (1984) A decorator painting a house would not be an occupier. Presence of the occupier Harris v Birkenhead [1976] 1 WLR 279 Court of Appeal Facts: The claimant Julie Harris was 4 years old when she wandered off from a children s play park with her friend. They entered a derelict house which was due for demolition. The house had not been VLC Publishers Page 12

13 secured and the door was open. They went upstairs and Julie sustained serious injury when she fell from a window. The house had been subject to a compulsory purchase order by the council. The house had been owned by a private landlord and the tenant was offered alternative accommodation by the council. The tenant informed the council that she did not want to take up the offer of accommodation and made her own arrangements and left the property. The council served 14 days notice on the owner of their intention to take possession of the property, but never actually took physical possession at the expiry of the 14 days. Held: The Council had the legal right to take possession to secure the property, actual physical occupation was not required to incur liability as an occupier. The council was therefore liable. Premises S 1(3)(a) of OLA 1957: the obligations of a person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft; Thus, by section 1(3)(a) of the Act, the statutory provisions extend to any fixed or movable structure, including any vessel, vehicle or aircraft. This is apt to; include not only structures of a permanent nature but temporary erections such as ladders and scaffolding. But with regard to vessels, vehicles and aircraft the Act would appear to apply only to the structural state of the premises, so that where injury is caused to a passenger by, say, negligent driving, and the appropriate cause of action is negligence at common law. Who are lawful visitors? The statutory duty is owed only to visitors who, by section 1(2), are those who would, at common law, have been either invitees or licensees. The common law distinction between these two categories of entrant is thereby abolished and the vital distinc tion (which remains unaffected by the Act) is as between the visitor and the trespasser (see 1984 OLA). No difficulty arises where the occupier expressly invites or permits another to enter or use his premises, bearing in mind that such invitation or permission may legitimately be limited either to a particular part of the premises or for a specified purpose. S 1(2) provides: The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a person's occupation or control of premises and of any invitation or permission he gives (or is to be treated as giving) to another to enter or use the premises, but they shall not alter the rules of the common law as to the persons on whom a duty is so imposed or to whom it is owed; and accordingly for the purpose of the rules so enacted the persons who are to be treated as an occupier and as his visitors are the same (subject to subsection (4) of this section) as the persons who would at common law be treated as an occupier and as his invitees or licensees. 1. Express permission Where a person has the permission of an occupier to enter premises such permission may be limited by time, space, purpose or other circumstances. The Question is, as always, must be approached with common sense. Gould V McAulliffe (1941) VLC Publishers Page 13

14 A customer of a public house may use its lavatory and remains a lawful visitor while making a reasonable search of it. R v Smith and Jones (1976 CA) When a person who is given permission to enter a building for one purpose and enters for another purpose (presumably unlawful) he may be treated as a trespasser. Robson v Hallett (1967) If a licence is revoked the entrant must be given reasonable time to leave the premises. Snook v Mannion (1982 DC) The revocation of the licence must be clear and unambiguous. Darby v National Trust (2001 CA) Notice of the prohibition of doing something must be prominently displayed if the prohibited act would amount to a trespass. 2. Implied Permission Edwards v Railways Executive [1952] AC 737 House of Lords Facts: A particular spot on a railway was used as a short cut on a regular basis. The fence was repaired on several occasions and whenever it was reported to have been interfered with. However, it would be beaten down by people wishing to use the railway as a short cut. Witness testimony was to the effect that the fence was in good repair the morning of the incident. Held: No licence was implied. The Defendant had taken reasonable steps to prevent people coming onto the railway. Lord Goddard: "Repeated trespass of itself confers no licence" 1. It is a question of fact whether or not a person s entry has been impliedly permitted. 2. The onus of proof on the C. 3. Repeated trespass itself confers no licence. Knowledge of presence does not imply permission Phipps v Rochester Corporation [1955] 1 QB 450 Facts: A 5 year old boy was walking across some open ground with his 7 year old sister. He was not accompanied by an adult. He was injured when he fell into a trench. The Corporation were not held liable as an occupier is entitled to assume that prudent parents would not allow their children to go unaccompanied to places where it is unsafe. Devlin J on duty owed to children: The law recognises a sharp difference between children and adults. But there might well I think, be an equally marked distinction between big children and little children. The occupier is not entitled to assume that all children will, unless they are allured, behave like adults; but he is entitled to assume that normally little children will be accompanied by a responsible person. The responsibility for the safety of little children must rest primarily upon the parents; it is their duty to see that such children are not allowed to wander about by themselves, or at least to satisfy themselves that the places to which they do allow their children to go unaccompanied are safe. It would not be socially desirable if parents were, as a matter of course, able to shift the burden of looking after their children from their own shoulders to those persons who happen to have accessible pieces of land. VLC Publishers Page 14

15 Knowledge of D is not of itself enough to constitute a licence. There would be a distinction between toleration and permission. The court followed Edwards. Tomlinson v Congleton Borough Council [2003] 3 WLR 705 House of Lords Facts: The defendant owned Brereton Heath Country Park. It had previously been a sand quarry and they transformed it in to a country park and opened it up for public use. The defendants had created a lake on the park which was surrounded by sandy banks. In the hot weather many visitors came to the park. Swimming was not permitted in the lake and notices were posted at the entrance saying Dangerous water. No swimming. However despite this, many people did use the lake for swimming. Rangers were employed and on occasions sought to prevent swimming but some of the visitors would be rude to the rangers attempts to prevent them and many continued to swim. The claimant was injured when he dived into shallow water and broke his neck. At the Court of Appeal it was held that he was a trespasser despite the repeated trespass and inadequate steps to prevent him swimming. They also stated that the warning signs may have acted as an allurement to macho young men. The Court of Appeal was of the opinion that since the introduction of the Occupiers Liability Act 1984, the courts should not strain to imply a licence. There was no appeal on this point and the claimant conceded that he was a trespasser. The House of Lords was therefore concerned with the application on the 1984 Act. The Court of Appeal had held that the council were liable but reduced the damages by 2/3 under the Law Reform (Contributory Negligence) Act The defendant appealed the finding on liability and the claimant appealed against the reduction. House of Lords held: The Council was not liable. No risk arose from the state of the premises as required under s.1(1)(a) Occupiers Liability Act The risk arose from the claimant s own action. He was a person of full capacity who voluntarily and without pressure or inducement engaged in an activity which had an inherent risk. Even if there was a risk form the state of the premises, the risk was not one against which the council would reasonably be expected to offer the claimant some protection under s.1(3)(c). In reaching this conclusion Lord Hoffman looked at the position if he had not been a trespasser and applied the common duty of care owed under the Occupiers Liability Act of He was of the opinion that there was no duty to warn or take steps to prevent the claimant from diving as the dangers were perfectly obvious. This was based on the principle of free will and that to hold otherwise would deny the social benefit to the majority of the users of the park from using the park and lakes in a safe and responsible manner. To impose liability in this situation would mean closing of many such venues up and down the country for fear of litigation. He noted that such fractures occurred each year nationwide, despite increased safety measures the numbers had remained constant. Lord Scott of Foscote agreed with Lord Hoffmann subject to the reservation that since the plaintiff had been diving in shallow water, not swimming, he had not been in breach of the defendants prohibition and thus not a trespasser. Rules the same for children but may be a tacit licence Lowrey v Walker (1911 HL) Members of the public had for many years used the defendant s field as a short cut to the railway station. The defendant had not infrequently prevented them from so doing, but did nothing further VLC Publishers Page 15

16 until, without warning, he turned a savage horse in the field. The animal attacked and injured the plaintiff, who succeeded in his action on the basis that he was a licensee, not a trespasser. This, and other cases, was decided at a time when trespassers were afforded little or no protection and, in view of the more favourable treatment which they now receive, the courts may be less favourably inclined to find an implied licence in a case such as Lowery. British Railways Board v Herrington [1972] AC 877 House of Lords Facts: A six year old boy was electrocuted and suffered severe burns when he wondered from a play park onto a live railway line. The railway line was surrounded by a fence however, part of the fence had been pushed down and the gap created had been used frequently as a short cut to the park. The defendant was aware of the gap in the fence which had been present for several months, but had failed to do anything about it. Under existing authority of Addie v Dumbreck no duty of care was owed to trespassers. However, the House of Lords departed from their previous decision using the 1966 Practice Statement and held that the defendant railway company did owe a duty of common humanity to trespassers. Lord Pearson: "It seems to me that the rule in Addie v. Dumbreck has been rendered obsolete by changes in physical and social conditions and has become an incumbrance impeding the proper development of the law. With the increase of the population and the larger proportion living in cities and towns and the extensive substitution of blocks of flats for rows of houses with gardens or back yards and quiet streets, there is less playing space for children and so a greater temptation to trespass. There is less supervision of children, so that they are more likely to trespass. Also with the progress of technology there are more and greater dangers for them to encounter by reason of the increased use of, for instance, electricity, gas, fast moving vehicles, heavy machinery and poisonous chemicals. There is considerably more need than there used to be for occupiers to take reasonable steps with a view to deterring persons, especially children, from trespassing in places that are dangerous for them. In my opinion the Addie v. Dumbreck formulation of the duly of occupier to trespasser is plainly inadequate for modern conditions, and its rigid and restrictive character has impeded the proper development of the common law in this field. It has become an anomaly and should be discarded." Entering premises to communicate with occupier does amount to tacit licence A person entering with the purpose of communicating with the employer will have implied permission, for example asking directions, the postman, rounds man, etc. Implied term in contracts Section 5(l) of OLA 1984 provides that where a person enters under the terms of a contract with the occupier there is, in the absence of express provision in the contract, an implied term that the entrant is owed the common duty of care and, according to Sole v W. J. Hallt Ltd (HC, 1973), he may frame his claim either in contract or under the 1957 Act. It is further provided by section 3(l) that where a person, contracts with the occupier on the basis that a third party is to have access to the premises, the duty owed by the occupier to such third party as his visitor cannot be reduced by the terms, of the contract to a level lower than the common duty of care. Conversely, if the contract imposes upon the VLC Publishers Page 16