The answer to the above is these actions can absolve the occupier from liabilities. So what are the liabilities?

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1 CITY UNIVERSITY OF HONG KONG Occupiers Liability Refer to Elliott & Quinn Tort Law 6 th Edition Chapter 4 Occupiers Liability (Occupiers and Occupiers are the same in the legal title) Have you questioned the following: on raining seasons, why are shopping mall cleaners mopping the wet floors? Why do they bother to hand out plastic umbrella jackets? Why does the MTR authority use the public address system to warn tunnel users be aware of the wet floors? Why are flight attendants on an airplane so concerned whether you have watched the safety videos before you take off? The answer to the above is these actions can absolve the occupier from liabilities. So what are the liabilities? A Introduction This area is regulated by statute: the Occupiers Liability Ordinance, CAP 314 (or the Occupiers Liability Act 1957 and 1984 from the U.K.) B Occupiers Liability CAP Scope of Ordinance (a) Persons to Whom Protection is Afforded The Ordinance draws a distinction between visitors and contractual entrants but affords protection to both classes of person. A visitor is a person to whom the occupier has given an invitation or permission to enter or use the premises. Visitors There are three categories of visitors. i ii iii Those who were invitees at Common Law (s 1(2)) (eg, a guest at a party). Those who were licensees at Common Law (s 1(2)) (eg, a postman or hawker). Those, like policemen stopping a breach of peace, who have a right to be there conferred by law (s 2(6)), those as of right people. 1

2 Visitors might be given implied permission to be there. It is determined as a question of fact in each particular case. Glasgow Corporation v Taylor [1922] 1 AC 44, HL The plaintiff aged seven died after eating poisonous berries from a tree in a public park. The tree was not fenced and no warning was given. The defendants were held liable. The danger was not obvious to a child of that age. The berries impliedly invited the child. Jolley v Sutton London Borough Council [2000] 1 WLR 1082, HL The schoolboy of 14 was attracted by the boat which was unattended on the defendant s land for over two years. The boy tried to repair it, used a jack to jack it up. The boat rocked and fell on to the plaintiff and broke his back. He is now paraplegic. The implied permission is given by the allurement of the boat. It was held that the Council was liable for the plaintiff's injuries. Visitors Rights and Limitations on Rights i ii iii Rights of way, persons who lawfully exercise a private right of way are not treated as visitors and are therefore not covered by the 1957 Act. Implied permission, a person who claims that they had implied permission to enter premises must prove that there was such permission. There is implied permission for a person to enter premises and state their business to the occupier. If the occupier then asks them to leave, they must be allowed a reasonable time to leave, after which they will become trespasser. Reasonable force may then be used to eject them. The presumption can be rebutted by the occupier putting up a notice specifically excluding certain types of person, such as salesmen and politicians. The court s willingness to find an implied license or permission was particularly strong in the case of children, especially where there was something attractive to children on the land. Limitations on permission, a person who is allowed to enter one part of a building only will become a trespasser if they enter another part: When you invite a person into your house to use the stairs you do not invite him to slide down the banisters. A person entering a public house will be allowed to enter the toilet. If a person is given permission to enter a building at a particular time, then entry at another time may render them a trespasser. A person who is given permission to enter for a particular purpose will be a trespasser if they enter for a different purpose. The decorator who is given the keys for the purpose of working will be a trespasser if they let themselves in at mid-night to watch a video. Contractual Entrants (a) Where someone has paid to be on one s premises, they clearly became an entrant by virtue of a contract. 2

3 (b) Premises Covered by the Ordinance The premises covered by the Ordinance are set out in s1(3) (a): Note: it covers also movable structures, such as boats, aircraft and vehicles. (c) Who is an Occupier? S1(2) provides that the Ordinance covers a person in occupation or control of premises. This raises two questions: (a) (b) Who is in occupation? What is sufficient control to fall within the Ordinance? Wheat v E Lacon [1966] AC 552 HL The victim Wheat, who was lodging in a public house owned by Lacon s, the brewing Company, fell down the back staircase and was killed. The handrail ended before the bottom of the escape staircases and it was dark, there being no bulb in the stairway light. Wheat had made the arrangement for lodgings with the wife of the manager, who was permitted by the brewing Company to run a boarding house business. By the arrangement between the manager and the Company, the Company had the right to enter the premises to inspect the state of repair. Also, by this agreement the manager s occupation of the premises did not create a tenancy. Wheat s widow brought this action against the Company under the Fatal Accidents Acts, 1846 to 1908, claiming damages for breach of the common duty of care imposed by s 2(1) and (2) of the Occupiers Liability Act 1957, on the basis that the Company was in occupation or control of the back staircase and that Wheat was a visitor within s 1(2) of the 1957 Act. Held: (i) Under the agreement between the Company and the manager, the Company had not divested itself of the occupation and control of any part of the public house, and the whole of it was in the occupation of their manager who was their employee; accordingly the Company was the occupier of the back staircase for the purposes of s 1(2) of the Occupiers Liability Act 1957, but there was not sufficient evidence to enable it to be deduced how the accident happened, and, on the evidence, the staircase, though unlit, was not dangerous to someone using it with proper care, so that no breach of duty on the part of the Company to take such care as in all the circumstances of the case was reasonable had been established. In Hong Kong, an Incorporated Owner shall be liable for hazard nuisance under Chapter 344 the Building Management (Amendment) Ordinance as a legal person: Leung Tsang Hung And Lee Wai Yu v The Incorporated Owners of Kwok Wing House [2007] FACV No. 4 of

4 In August 1999, concrete debris fell from an illegal canopy of an owner s property on the Eleventh Floor of the building and killed a street vendor. The Court of Final Appeal used the term hazard which amounts to public nuisance. It was held that the Incorporated Owners (IOC) shall be liable for the injury and damage originated from the 30-year old illegal structure. The IOC failed to take any measures, even though it actually knew but did not take any steps to check nor to prevent the debris from falling, resulting in such a fatal injury. (d) The Common Duty of Care S2(2) of the Ordinance speaks in terms of common duty of care. It is: a duty to take 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 was invited or permitted to be there. (i) Nature of the Duty: s2(3) S2(3) merely provides examples of how the degree of care will vary. (ii) The Duty Owed to Children: s2(3)(a) Phipps v Rochester Corp [1955] 1 QB 450 The five-year-old plaintiff was injured while out with his seven-year-old sister. He fell down a trench which was used by children as a play area. The defendants were aware of this but took no steps to keep the children out. Held not liable. The court stated that reasonable parents will not send their children into danger without protection and that both the parents and the occupier must act reasonably. (iii) The Duty Owed to Ordinary Visitors If the visitor is an ordinary sentient adult, he will be owed a duty similar to the ordinary common law duty of care we met in the law of negligence. Sawyer v Simonds [1966] 197 Estates Gazette 877 Laverton v Kiapasha [2002] NPC 145 (iv) The Duty Owed to Specialist Visitors : s2(3)(b) Roles v Nathan [1963] 2 All ER 908 Eden v West [2002] EWCA Civ 991 4

5 Fairchild v Glenhaven Funeral Services [2002] 1 WLR 1052 CA Ogwo v Taylor[1987] House of Lords The occupier of a small terraced house was using a blow lamp to burn off paint from the fascia boards beneath the eaves of his house and in so doing set fire to the premises. The fire brigade were called. Having been unable to locate the fire from the outside one of the firemen entered the house wearing breathing apparatus and protective clothing. He squeezed through a narrow hatch into the roof space, where the fire was confined, and played the hose onto the fire. When the fire had been extinguished, the fireman discovered that he had serious burn injuries from the scalding steam which must have penetrated his protective clothing. He brought an action against the occupier for damages alleging that the fire had been started by the occupier's negligence and that he had been injured as a result of that negligence. Nolan J., dismissing the fireman's action, held that the occupier owed the fireman a duty of care and was in breach of that duty, but that the fireman's injuries were not a reasonably foreseeable consequence of the breach. On his appeal, the Court of Appeal held that the fireman's injuries were reasonably foreseeable and entered judgment in the agreed sum of 12,902 plus interest. On appeal by the occupier: - Held, dismissing the appeal, that there was no principle which precluded professional firemen from recovering damages, from a person who by his negligent act had started a fire, in respect of injuries received as a result of fighting the fire, in that fire out of control, whether described as ordinary or exceptional, was inherently dangerous even to men with special skills, training and equipment; that regardless of the fact that the nature and severity of the injuries might not have been foreseen, the occupier, in using a blow lamp on the wooden rafters must have foreseen that there was a real risk of fire developing whereby firemen would be called who might have to enter the narrow roof space where they would be subject to the risks of injury inherent in that situation, of which a scalding injury was one; that there being a clear duty of care on the part of the occupier, with no break in the chain of causation, the occupier was liable to the fireman for the injuries sustained. (v) Discharging the Common Duty of Care: s2(4) Recall that the duty owed under the Act is not an absolute one. It is only one to take reasonable care to ensure the reasonable safety of visitors. Defendant may satisfy the duty if, for example: (a) he issued sufficient warning to his visitors, or (b) he engaged an independent contractor to ensure the premises were safe. Warning Under s2(4)(a) a warning will only absolve the occupier from liability if that warning was enough to make the visitor reasonably safe. 5

6 Roles v Nathan [1963] 2 All ER 908 Two chimney sweeps were killed by carbon monoxide while attempting to seal a sweep hole in the chimney of a boiler. The defendant occupiers were held not liable, as they could assume that sweeps would be aware of this particular danger and also because the sweeps had been warned of the danger. Independent Contractors Defendant may have discharged his duty even though injury befalls a visitor if the injury can be attributed to the fault of an independent contractor. S3(4)(b) imposes three requirements for this to occur: (i) The occupier must have acted reasonably in entrusting the work to an independent contractor; (ii) The occupier must have taken reasonable steps to satisfy himself that the contractor was competent; and (iii) The occupier must have taken reasonable steps to satisfy himself that work was done properly. 2 Liability to Trespassers The Occupiers Liability Act 1984 will apply to persons other than visitors, which will cover trespassers. (a) A trespasser is a person who goes on to land without an invitation of any sort and whose presence there either is unknown to the occupier, or if known, is objected to. (b) The common law was traditionally hostile to trespassers. (c) (d) The duty owed was of not intentionally or recklessly injuring a trespasser known to be present. A new duty was introduced by the House of Lords, the occupier owed a duty of common humanity to a trespasser known to be present. British Railways Board v Herrington [1972] AC 877 The 1984 Act will also apply in respect of any risk of their 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 (s1(1)a). The Act applies to the activity duty as well as the occupancy duty. 6

7 Revill v Newbery [1996] 1 All ER 291 The 76-year-old defendant was asleep in his garden shed where he was guarding valuable articles. The plaintiff attempted to break into the shed and the defendant fired his shotgun through a small hole in the door without being able to see whether there was anyone in the way. The plaintiff was wounded and later pleaded guilty to certain criminal offences committed that night. The defendant was charged with wounding but later acquitted. The plaintiff then sued the defendant for breach of the duty of care under s1 and for negligence. It was held that the fact that a plaintiff in a personal injuries case was a trespasser and engaged in criminal activities was not a bar to recovery in an action against the occupier under the 1984 Act or against persons other than the occupier at common law. On the facts the trial judge had been justified in finding that some duty of care was owed and the defendant had used greater violence than was justified in self defense and was in breach of that duty. Dr Eric Cheng City University of Hong Kong 13 March