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Occupiers Liability

Insurance February 2011

Occupiers Liability
An overview following Harvey v Plymouth County Council and other recent cases

1.
1.1

Occupiers Liability Act 1957


What is the duty of care under the Act?

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. (5) The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor 1.2 Who is an occupier?

S.2(1) An occupier of premises owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. (2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. (3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases (a) an occupier must be prepared for children to be less careful than adults; and (b) 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. (4) 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) (a) 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; and (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,

Anyone who occupies, has possession of, or a sufficient degree of control of, premises, or an area within premises, is an occupier. There can be more than one occupier. In Wheat v Lacon & Co (1966), the Defendant brewery owned a pub run by a Manager and his wife, who lived on the premises and from time to time took in paying guests who stayed in their private living quarters. The Claimants husband was a guest who was killed when he fell down an unlit staircase in the living quarters. The House of Lords held: A landlord who had let premises to a tenant could not be an occupier. But if a landlord does not let all of the premises and retains control of some parts, he remains an occupier of those parts. And if a landlord retains a sufficient degree of practical control over a let property, he will be an occupier. Because the Defendant had not wholly demised the premises to the Manager and had retained sufficient control, it was an occupier for the purposes of the Act, and owed visitors a duty of care. Though the Manager was also an occupier under the Act, there could be more than one occupier of premises at any one time. (The claim failed because the stairs were not unsafe to anyone using proper care).

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Anyone with a sufficient degree of control over premises, or part of a premises, to be able to ensure the safety of those premises is likely to be an occupier. So for example a builder or contractor may be liable as an occupier. In Collier v Anglian Water Authority (1983), the Defendant, which maintained a sea wall for the local authority, was liable as occupier to a holiday-maker who tripped on a sunken paving stone. In Whiting v Hillingdon LBC (1970), the Claimant fell when she stepped from a footpath, which was maintained at public expense, to allow someone to pass, and struck a hidden tree stump. She claimed under OLA 1957, Highways Act 1959 and in negligence. It was held that the local authority was not an occupier of a road or footpath within the meaning of the 1957 Act merely by virtue of its duty to maintain it under Highways Act. Neither had it breached the Highways Act or been negligent. 1.3 What may constitute premises?

without permission goes beyond areas of public access, he will become a trespasser. If a lawful visitor is told to leave the premises and refuses to do so, he may cease being a visitor and become a trespasser. Similarly, if a visitor is invited onto premises for a specific purpose but then does something he was not permitted to do, he may cease to be a visitor. In Tomlinson v Congleton CBC (2003), the Claimant entered a park as a lawful visitor but, when he dived into water contrary to warning signs which he had ignored, he had ceased to be at the park for the purposes for which he was invited and permitted by the Defendant to be there. He accordingly ceased to be a visitor and became a trespasser. In McGeown v Northern Ireland Housing Executive (1994), the Claimant was injured when she fell on a public footpath. The House of Lords held that a person exercising a right of way is not a visitor for the purposes of the Act, but someone exercising a right. The land owner did not owe a duty under 1957 Act. A good example of McGeown being applied is Young v Merthyr Tydfil CBC (2009). The Claimant slipped on a footbridge in a park owned by the Council, where parts of the non-slip surface had worn away. Liability was denied on the ground that the bridge was part of the highway, so no duty was owed under the 1957 Act, but was not adopted, so no duty was owed under the Highways Act. The Judge found that: (1) the Council had lead the public to infer that pedestrians had a right to pass over this and other bridges in the park at all times; (2) the pathways and bridges were unobstructed, open and clearly delineated and had all the necessary physical attributes of a highway; (3) the Council had intended to dedicate the path and the bridge as part of the highway; (4) the public had had uninterrupted use of the way as a footpath at all times and for all purposes for almost four years before the accident; (5) at no stage was the way adopted as a highway maintainable at public expense. The test for establishing a highway was satisfied and the bridge had thus formed part of a highway, but had not been adopted as repairable or maintainable at public expense so the Council was under no duty to repair it. It was quite entitled to do nothing. Had the way been adopted it would have been under an obligation under the Highways Act 1980 s.41. As the bridge was part of the highway, the Claimant had used it as of right not as a visitor so was owed no duty under the 1957 Act.

Premises in this context means land rather than buildings and has been held to include e.g. railway lines, an airport runway and expanses of water. The Act does not define premises but does say that the rules extend to a person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft so the definition is very wide indeed. It has been held to include: a grandstand an electricity pylon a seaside promenade a lift scaffolding 1.4 Who is a visitor?

The duty of care is owed to an occupiers visitor, who is anyone invited to enter the premises, or anyone who does so with the express or implied permission of the occupier, as opposed to a person who is not permitted to be on the premises and is thus a trespasser (to whom a different duty may be owed. See below). If there is a general invitation to members of the public, e.g. to retail premises or public buildings, everyone entering will be a visitor. However, if a person enters public premises lawfully but then

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Similarly, a person exercising a private right of way is not a visitor so is owed no duty under the Act. (Greenhalgh v BRB (1969)) Purposes for which visitor is invited or permitted to be there Harvey v Plymouth City Council (2010) Background The Claimant was seriously injured in a fall but had no memory of the circumstances. His case was that he and a friend had been out drinking and were running away from two other friends they had left in a taxi when the accident occurred. The friends evidence was that the Claimant had run across a patch of land into some vegetation, tripped or fallen over a collapsed fence, and fallen over the edge of a retaining wall onto a supermarket car park 5.5m below. About 18 years before, the Council had sold Tesco land for development and granted a licence of the patch of the land, which probably expired in 1987. Tesco built the retaining wall, erected a fence and laid grass which it continued to cut until 2005. The Council did not realise it owned the land so did not inspect or maintain it, other than cutting the grass verge. After the accident, Tesco investigated ownership and the Council accepted responsibility, repaired the fence and instituted a system of maintenance. The Claimants case was that the land had long been used by members of the public, including youths at night. It had been reasonably foreseeable that youths might fool around on the land, perhaps whilst under the influence of alcohol. As an implied licensee, he was owed a duty of care under the Occupiers' Liability Act 1957, which the Council had breached due to the lack of a fence and/or warnings of a drop. The Council argued that an owner of land cannot acquiesce in the use of the land without knowledge of that use, and that he had a right to prevent it. The Claimant said actual knowledge was not required.

Trial Judges decision The Judge at first instance held that the Council would have known it owned the land before the supermarket development and should have known what had been conveyed to Tesco and what had been retained in ownership. It should have known when the licence terminated and should then, if not earlier, have considered the use to which the land was being put, in particular to decide what, if anything, it needed to do to ensure it was safe. The Council had admitted that it was an occupier (as the legal owner) and an occupier ought to know the uses to which the land was or might with reasonable foreseeability be put. Actual knowledge was not required when the occupier had the means of knowing and such knowledge could be imputed to it. The Claimant was thus a visitor for the purposes of the Act and the Council was in breach for not securely fencing the edge and by allowing the fence to be in such condition that it constituted a tripping hazard for the unwary so close to the edge. However, the Claimant was found 75% contributorily negligent. The Council appealed on the ground that the Judge was wrong to have found that the Claimant had been an implied licensee for the purpose of the Occupiers' Liability Act 1957, s.2(2) of which states: The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. Court of Appeal decision The appeal was upheld and the claim dismissed. The principal issue was whether the Claimant was an "implied licensee" (there being no suggestion that he was an "invitee" or had express licence to be there). The duty under the Act is to make the premises reasonably safe for use "for the purposes for which (the visitor) is invited or permitted by the occupier to be there". Thus the duty does not extend beyond the scope of the activities for which the licence has been expressly or impliedly given. Even if the Claimants conduct might have been foreseen, foreseeability was not the relevant test. In deciding whether the Claimant was a licensee, the question was not whether his activity or similar

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activities might have been foreseen, but whether they had been impliedly assented to by the Council. There was no evidence to support such a finding. When a Council licenses the public to use its land for recreational purposes, it is consenting to normal recreational activities, carrying normal risks. An implied licence for general recreational activity cannot be stretched to cover any form of activity, however reckless. The Claimant had not therefore been a visitor for the purpose of the 1957 Act and the Council did not thus owe him a duty of care. The case illustrates the importance of determining the scope of the licence to enter a property. If a visitor exceeds the scope of his licence, he may no longer be a visitor for the purpose of the 1957 Act and, as a trespasser, would have to rely on the 1984 Act where the duty of care is much less onerous. Once the Claimants activities went beyond that which the Council had impliedly permitted i.e. normal recreational use of an area of grassland, he ceased to be a "visitor" under the 1957 Act. Had the Council owed him a duty of care, it is clear the Court would have found it in breach for failing properly to protect visitors from a 5m fall.

Liability is not strict and it is a defence to show that reasonable precautions were taken and/or warnings given. Duty to warn Warnings need not be given about risks and dangers that are obvious. In Tomlinson v Congleton CBC (2003), the Claimant dived into lake in the Defendants park. He had done the same thing many times before but this time the dive was badly executed and he struck his head on the bottom and broke his neck. The Defendant knew the lake had been the site of other accidents and had planned to plant vegetation around it to keep people out. The Court of Appeal said the warning signs were inadequate and additional measures should have been taken to prevent injury. The House of Lords disagreed and ruled that the cause of the Claimants injury was his own folly and not something the Defendant did or failed to do. The danger of the lake was obvious and there was no duty to take additional measures. Lord Hoffman said: it will be extremely rare for an occupier of land to be under a duty to prevent people from undertaking risks which are inherent in the activities they freely choose to undertake upon the land. He also of course referred to: the social value of the activities which would have to be prohibited in order to reduce or eliminate the risk from swimming. Andthe question of whether the Council should be entitled to allow people of full capacity to decide for themselves whether to take the risk. Similarly, in Evans v Kosmar Villas (2007), the Court of Appeal dismissed a claim brought by a Claimant who was left paraplegic after he dived into the shallow end of a swimming pool at 3.30 am. The core reasoning in Tomlinson was that people should accept responsibility for the risks they choose to run and there should be no duty to protect them against obvious risks, save where there is no genuine and informed choice, or some lack of capacity. The risk an obvious one of which the Claimant was previously aware and should have been aware of at the moment he dived. The fact that he had acted thoughtlessly was not a good reason for holding the Defendant to have been under a duty that it would not otherwise have owed him. There was no duty to give the Claimant any warning about the risks of diving into the pool. His dive and its consequences were matters for which he must take full personal responsibility.

1.5

What is the extent of the duty owed?

The duty is to take such care as in all the circumstances of the case is reasonable to see that visitors will be reasonably safe when using the premises for the purpose for which he was invited. There are two aspects to the occupiers duty of care:

To keep the state of the premises reasonably safe


for visitors. The state of the premises is the physical features of the premises as they exist at the relevant time. Common examples are injuries caused by defects in the floor or ground, slipping and tripping hazards, objects falling from walls and ceilings etc. To take reasonable precautions to safeguard a visitor from dangers due to activities which the occupier allows to take place on the premises which might endanger others. Thus, if shooting is taking place on the premises, a danger to visitors may arise from that fact. If speed boats are allowed to go into an area where swimmers are, the safety of the swimmers may be endangered.

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If a visitor is on the premises to carry out work, there is no duty to warn him/her of risks ordinarily associated with their work. In Roles v Nathan (1963), two chimney sweeps died after inhaling carbon monoxide while cleaning the flue of a boiler that was lit at the time. The occupier was not liable for their deaths, as the risks involved were incidental to their trade as chimney sweeps. As such, it was up to the men to take precautions against such risks. To escape liability, the risk must be one specifically associated with the visitors job. In Caddis v Gettrup (1967), a window cleaner failed in his claim for injuries caused when an ornamental trellis he was using as a handhold gave way. Questions as to adequacy of handholds etc were matters for him as an expert, not the occupier. But had he been injured by eg. a defective staircase, the occupier would have been liable. In Darby v National Trust (2001), the Claimants husband drowned when swimming in the Defendants pond. The Defendant knew visitors quite frequently swam or paddled in the pond but did little to discourage or prevent it. There were no warning notices around or in the vicinity of the pond and no life-saving equipment. There was a notice somewhere near an entrance to a car park which stated, among other information about opening hours, charging, fishing tickets, the words Bathing and boating not allowed. But the pond was no more dangerous than any other pond, nor did it have any relevant hazards which were not readily apparent. There was no duty on the Defendant to warn against swimming where the dangers of drowning were no other or greater than those which were quite obvious to any adult such as the Deceased. The Claimant argued that there was a risk of Weils Disease, occasionally fatal, from swimming in the pond and that the Defendant had breached its duty by failing to erect a warning sign. Had it done so, it would have probably have stopped people swimming. The House of Lords found that, even if the premises were unsafe for a particular reason, the occupier will be liable only for injury caused by that feature. So any breach of a duty to warn against Weils disease could not support a claim for damages resulting from a quite different cause, even if a warning may have had the side effect of stopping people swimming.

The nature of the warning must reflect the degree of risk. So: where the risk of injury is commonplace and obvious to all, there may be no need for a warning a verbal warning may be sufficient where there is a moderate risk of minor injury a written warning should be easily visible and the greater the risk, the larger and more obvious must be the warning. Multiple notices may be required where there is a significant risk of a serious injury, warnings alone will probably be insufficient unless the danger should be obvious to the visitor Reasonable precautions In Esdale v Dover District Council (2010), the Claimant tripped on a footpath due to a difference in level between a tarmac and concrete section of 1. The Councils Inspector said he had inspected the path on several occasions in the previous 5 years and would have ordered a repair had he found a defect over . A repair was effected post accident. There was no evidence of a previous accident or complaint. The Judge said the Councils duty under the 1957 Act was not to provide a perfect surface free of all irregularities; nor was there to be any rule of thumb that a tripping point of more than 1 was deemed to be dangerous and that one of less than 1 was not. The question was whether a reasonable person would regard the defect in question as presenting a real danger. The Judge held he would not and dismissed the claim. The Claimant appealed on the ground that, as it was the Council's policy to repair defects of more than , this defect should have been regarded as dangerous and should have been repaired. The Court of Appeal dismissed the appeal. The test of whether the Council had taken such steps as are reasonable to see that visitors are reasonably safe does not depend upon what standards of safety the Council sets itself as a matter of policy. The test is objective. The question, in effect, is: does the judge, as a reasonable person, think that the Council has taken such steps as are reasonable, in all the circumstances, to keep the visitor reasonably safe? What the Council sets as a policy is not determinative, though not irrelevant.

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Where anothers actions put visitors at risk, an occupier must take reasonable steps to deal with that risk. In Piccolo v. Larkstock Ltd and Chiltern Railway Co (2007), D1 ran a flower shop near the main entrance of Marylebone Station, operated by D2. The Claimant slipped on petals and water from the florist. The Judge found that petals on the concourse, with or without water, created a foreseeable risk of slipping for pedestrians and there was thus an onus on the Defendants to maintain a system of work to keep the concourse safe. D1 was liable as staff were instructed to clear a spillage if they saw it but not to leave the shop to check for hazards. A pro-active system of inspection was required. The claim against D2 in negligence and under the 1957 Act failed. D2 had discharged its duty as occupier by requiring its tenants to keep their premises in a clean and tidy condition and employ competent cleaners. It had made repeated requests to D1 about the state of its premises and had been moving toward taking more formal steps against D1 as a result of its failings. Whereas it may have been justified in taking additional steps prior to the accident, and could have done so, D2 was not negligent or in breach of its duty in failing to take further measures prior to the Claimants accident. Duty of care owed to children The Act provides that an occupier must recognise that children invited or allowed into the premises will be less careful than adults and be prepared accordingly. In Jolley v Sutton LBC (2000), a boat was abandoned in the grounds of the Defendants flats where children played in 1987. The residents of the flat complained to the Council and in 1988 the Council placed a sticker on the boat stating that it would be removed within 7 days unless claimed by its owner but it was not. In 1990, the Claimant (15) and a friend attempted to repair the boat when it collapsed and he was paralysed. The Council accepted it should have moved the boat as it was foreseeable that children might play on it, but it argued that it was not foreseeable that children would attempt to repair it. The House of Lords said it was not necessary for the Council to foresee the exact nature of the accident. It was enough that it was foreseeable that children might play with the boat and suffer injury. An occupier may take account of the fact that the primary duty for safeguarding a childs welfare rests with the parents if they are accompanying the child.

So, in Ryan v Camden London Borough (1982), a very young child who received serious burns from an unprotected hot water pipe in his parents Council owned flat failed in a claim against the local authority. The Defendant could reasonably rely on the parents to devise means of safeguarding their children and was justified in assuming that no particular precautions were necessary. In Phipps v Rochester Corporation (1955), a five year old boy fell into a trench and broke his leg after he and his 7 year old sister entered land where the Defendant was building houses. Despite the fact that the Defendant knew that children played in the area, it was not liable as it was entitled to assume that reasonable parents would not allow young children to play unsupervised. But it is not necessary to prove fault on the part of parents to avoid liability. In Marsden v Bourne Leisure Ltd (2009), the Claimants 2 year old son wandered down a path from their caravan and drowned in a pond on the Defendants caravan site. The family knew that there were lakes on the site and accepted that the site was not safe for small unaccompanied children but alleged that (1) a more effective barrier should have been placed around the site, in accordance with the recommendations of the ROSPA in relation to domestic ponds, and/or (2) the Defendant should have done more to warn them of the pond and access to it by the path. The Court of Appeal dismissed the claim. There was no basis to conclude that the Defendant was under any obligation, in the exercise of reasonable care, to bring to the attention of parents the existence of the path or the precise location of the lake, when the danger they presented to small unaccompanied children was obvious. That was all the more evident where the parents had been given a plan which showed the location of the ponds as well as the river and the beach. Moreover, it was difficult to see how further information given could possibly have made any difference. Short of keeping hold of their children at all times when outside the caravan, there was nothing more the parents could have done. The Court stressed that there was no requirement to prove fault on the part of the parents to escape liability. Children can be assumed to be familiar with everyday hazards. In Ashford v Somerset County Council (2010), the Claimant, aged 9, lost the tip of a finger after it was caught by a school door. He had put his hand on the door frame and turned to speak
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to his friends when another pupil slammed the door shut. The school had risk assessed its doors in 2005 and identified a risk of injury from doors slamming due to wind or draughts caused when outside doors were left open. Door closers were fitted to several doors where the risk was identified, to prevent them slamming. No risk was identified with the door in question. The Claimant alleged negligence and breaches of the OLA 1957 and the Education (School Premises) Regulations 1999, in essence because the school failed to carry out an adequate risk assessment and fit a door closing mechanism and/or to warn pupils of the danger of slamming doors. The District Judge held that the schools duty was to take reasonable care to ensure the reasonable safety of its pupils, not their complete safety. The safe negotiation of doors is within the everyday experience of children. The Defendant was right to submit that the logical consequence of a finding that a door closer should have been fitted was that every door in every school ought to have a closer fitted. It is reasonable to expect a child of the Claimants age to be entirely familiar with the proper use of a door. In the absence of special factors e.g. doors slamming in wind the door did not present a foreseeable risk and the absence of a door closer was not a breach of duty. Liability for acts of visitors Under s.2(4)(b), an occupier will not normally be liable for the acts of an independent contractor providing he has taken reasonable steps to satisfy himself that the contractor is competent. If work on the premises completed by an independent contractor subsequently causes injury, the occupier will not be liable if he took steps to satisfy himself that the contractor is competent and subsequently took reasonable steps to check that the work had been done properly. In Ferguson v Welsh and others (1987), a Council, D2, awarded a contract to D3 to demolish a building. Despite an express condition of the tender being that the work was not to be sub-contracted without the Council's authority, D3 arranged for D1 to carry out the actual demolition. D1 offered the Claimant a job on the demolition, in the course of which he was seriously injured due to D1s unsafe system of work. D1 and D3 were held liable but had no PL insurance. The claim against the Council was dismissed and the Claimant appealed, arguing that D3 had been given ostensible authority to invite sub-contractors and their
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employees onto the premises and therefore, despite the limitation on D3's actual authority, the Claimant was a visitor and not a trespasser vis--vis the Council. The House of Lords found that the Claimant was a visitor but that the injury had been caused by D3s unsafe system rather than any 'use' of the premises by him which gave rise to a duty of care on the part of the Council under the 1957 Act. An occupier could not normally be liable to an employee of a contractor employed to carry out work on his premises if the employee was injured as a result of his employers unsafe system of work. In special circumstances, where the occupier knew or had reason to suspect that a contractor was using an unsafe system of work, it might well be reasonable for the occupier to require that a safe system be used. Thus the question was whether the Council knew or had reason to believe D3 was bringing in cowboy builders who would demolish the building in an unsafe way. As there was no evidence that the Council knew of that, the claim failed. In Bottomley v Todmorden Cricket Club (2003), the Claimant was injured at a firework display on the clubs premises owing to the acts of a two man stunt team which was responsible for the fireworks. They did not have insurance. The club was liable because it had allowed a dangerous event to take place on its land with no public liability insurance and no written safety plan. It had neglected to take the ordinary precautions it should have taken. But in Gwilliam v West Hertfordshire Hospitals NHS Trust (2002), the Defendant organised a fund-raising fair in its grounds, for which it hired a trampoline attached to wall called a splat-wall. The supplier was negligent in the way that the equipment was set up with the result that the Claimant was injured. The suppliers PL insurance had expired due to an oversight so she sued the Defendant on the ground that it owed a duty to visitors to exercise reasonable care in selecting people responsible for operating equipment at the fair, including a duty to ensure that they were covered by PL insurance, or to warn visitors where there was no insurance. The hospital had been told that the supplier was insured, which he was when asked. The judge at first instance held that the hospital owed no duty of care to the Claimant. Her appeal was dismissed by the Court of Appeal. Lord Woolf said that the Defendant had had a duty to enquire about the suppliers insurance position, which was relevant to his competence, but did not
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have to demand sight of the policy. Waller LJ agreed but Sedley LJ did not consider that the occupier owed any duty of care to its visitors to take steps to ensure that its independent contractors would be insured or otherwise able to meet any claim for damages for negligence. He expressed concern about the ramifications if the court were to impose such a duty on a public institution which invited people into its grounds. The position as regards insurance cover is thus unclear but it would be advisable to check contractors and visitors insurance if they are to undertake activities that might harm other visitors. An occupier will not be liable for damage caused by one visitor to another unless he could reasonably have foreseen that the visitors actions could cause damage to another and failed to take precautions or issue warnings accordingly. In Cole -v- Davis-Gilbert and East Dean & Friston Parish Council (2007), a Claimant who broke her leg when she fell in a maypole hole failed in her claim against the owners of the village green and the organisers of a fte, the Royal British Legion. After the fte, the hole that had been created for the maypole was filled by a member of the RBL with soil and stones and then a wooden plug. The village green had been in regular use after the fte and noone had reported seeing an exposed hole. About 21 months after the fte, the Claimant was injured when she stepped into the exposed hole, breaking her leg. The owners of the village green were not liable as they could reasonably have assumed that the hole had been filled and sealed by the fte organisers. Volenti non fit injuria There is no duty owed to a visitor in respect of risks willingly accepted. The risks accepted must have been causative, must be clear, known to the visitor and freely accepted. In Gillmore v London CC(1938), the Claimant was injured when he slipped on the polished floor of a hall during an exercise class. While he accepted the risk attached to the activity, he did not agree to accept a risk from slipping on a floor which was not reasonably fit for the purpose.

1.6

Exclusion of liability

S.2(1) states that an occupier is free to restrict, modify or exclude his duty to visitors by agreement or otherwise. A suitably worded notice appropriately displayed may absolve an occupier of any liability under the Act. The theory appears to be that when an occupier invites visitors on to his premises, he is entitled to impose conditions on their entry, such as exclusion of liability. The visitor can then choose whether to enter on that basis. This may mean that liability cannot be excluded to visitors who have a right of entry. Any exclusion of liability may be subject to the Unfair Contract Terms Act 1977, the relevant parts of which state: 1(1) For the purposes of this Part of this Act, negligence means the breach (c) of the common duty of care imposed by the Occupiers' Liability Act 1957 1(3) In the case of both contract and tort, sections 2 to 7 applyonly to business liability, that is liability for breach of obligations or duties arising (a) from things done or to be done by a person in the course of a business or (b) from the occupation of premises used for business purposes of the occupier; and references to liability are to be read accordingly. 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. In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness. Where a contract term or notice purports to exclude or restrict liability for negligence a person's agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk. business includes a profession and the activities of any government department or local or public authority;

2(1)

2(2)

2(3)

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Thus for businesses, which includes any public body, liability for damage to property can be excluded subject to a test of reasonableness. Where a notice limits liability e.g. Any liability for loss or damage howsoever caused is limited to 1,000, s.11(4) provides that, in assessing reasonableness, regard must be had to the occupiers resources and how far it was open to him to get insurance.

(6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (7) No duty is owed by virtue of this section to persons using the highway, and this section does not affect any duty owed to such persons.

2.
2.1

Occupiers Liability Act 1984


What is the duty of care under the Act?

2.2

To whom is the duty owed?

S.1(1) The rules enacted by this section shall have effect, in place of the rules of the common law, to determine (a) whether any duty is owed by a person as occupier of premises to persons other than his visitors 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; and (b) if so, what that duty is (3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above 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. (4) the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned. (5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.

The duty is owed to anyone not a visitor for the purpose of the 1957 Act. Although it is usually assumed this means trespassers, it is not limited to trespassers. For example, someone using a private right of way may not be a trespasser but would be covered by the 1984 Act as they would not be a visitor for the 1957 Act. Persons using rights of access under the National Parks and Access to the Countryside Act 1949 and the Countryside and Rights of Way Act 2000 are not visitors of the occupier so are covered by the 1984 Act, subject to modifications of the duty of care under the 2000 Act. Persons using public rights of way are not owed a duty of care under the 1984 Act by reason of s.1(7).

2.3

When is the duty of care owed?

The duty is owed when there is a risk of injury to the non visitor to the actual or deemed knowledge of the occupier. The Act followed the landmark decision in Herrington v British Rail Board (1972), which changed the common law approach to trespassers. The Claimant, aged 6, was playing with other children in a National Trust property. There was an electrified railway line a few yards from the boundary fence which was in a very bad state of repair, enabling the Claimant to get through a gap onto the line where he was severely injured. The House of Lords ruled that, even though the Claimant was a trespasser, the Defendant was liable as it knew that children had been using a gap in the fence as a shortcut and had done nothing to try to stop the practice. The occupiers knowledge of the risk must be judged by the state of affairs as it existed when the injury occurred i.e. he must be found to have been able to foresee an injury to the Claimant even if he could not

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have foreseen its exact mechanism (see Jolley v Sutton LBC above). In Donoghue v Folkstone Properties Ltd (2003), the Claimant dived from a slipway into Folkestone harbour shortly after midnight in December 1997, striking his head on an underwater obstruction and leaving him tetraplegic. He alleged a breach of the duty owed to him under 1984 Act in that there was no warning sign. The Defendant accepted that it owed a duty to of care to those who, as it was well aware, swam and dived in the vicinity of the slipway in the summer but not, it said, to the Claimant at the time he swam. The Court of Appeal agreed that the test whether a duty of care existed under the 1984 Act had to be determined having regard to the circumstances prevailing at the time of the alleged breach of duty. The Defendant had had no reason to believe that the Claimant, or anyone else, would be swimming from the slipway in mid-winter in the middle of the night. The criterion in s.1(3)(b) was not, therefore, satisfied. The Defendant owed no duty to the Claimant under the Act.

as the Council and was found 50% contributorily negligent. However, contrast this with Keown v. Coventry Healthcare NHS Trust (2006), where the Defendant had a building in grounds where it knew children. The Defendant did not know that children climbed the underside of a fire escape. The Claimant (11) suffered a serious head injury when he fell 30 feet from the fire escape. The Court of Appeal dismissed the claim under the 1984 Act. Neither the building nor the fire escape were dangerous in themselves. They were only made dangerous by the Claimants actions. In the case of children, there was a duty to protect against obvious risks where the child might not be able to recognise a danger that an adult might. The Claimant had known that there was a risk of falling and that what he was doing was dangerous. Thus, the risk arose not out of the state of the premises but out of what the Claimant chose to do. Consequently, the Defendant had not owed the Claimant any duty. Even if it had done, it would probably not have been in breach because there was not really anything it could reasonably have done to have offered protection against the risk. The Court in Keown impliedly cast doubt on the decision in Young v. Kent CC and, as a Court of Appeal decision, is a more persuasive authority. See also Siddorn v Patel (2007) where the Claimant sought damages from her landlord after she fell through a Perspex skylight in a garage roof adjacent to her flat when, during a party, she and others climbed out of a window and danced on the roof. The Judge dismissed the claim. There was no evidence that the Defendant had been aware that she or any other unauthorised person was likely to make use of or gain access to the roof and the Defendant was entitled to take heed of the fact that the tenants were educated and sensible adults. There is no duty to warn trespassers of obvious risks and the reasoning in Tomlinson v Congleton CBC and Evans v Kosmar Villas applies equally to the 1984 Act.

2.4

What is the extent of the duty of care?

The duty is to take such care as is reasonable to prevent injury to the non visitor. The duty is thus to all intents the same as to the duty owed under the 1957 Act. The difference between the two Acts is primarily in the establishment of the existence of the duty of care owed rather than its nature. The Claimant must additionally prove the risk was one against which, in all the circumstances of the case, the occupier may reasonably have been expected to offer some protection. So the concept of comparative blame may come into play. Where the injury is caused not so much by the state of the premises as the Claimants use of them, the occupier should not be liable, though the Courts may take a tougher stance where children are involved. In Young v Kent County Council (2005), the Claimant (12) climbed onto the roof of a school building using the flue of an extractor fan attached to the side and fell through a brittle skylight. The High Court held that the Council was under a duty to protect children and the premises had been inherently dangerous to a child. The area was a known meeting place for children. A risk assessment should have revealed the danger and the need to fence off the area. There was a breach of the 1984 Act as the Claimant was a child, although he would not have succeeded as an adult. However, the Claimant was as much to blame

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More information To discuss your individual requirements, please contact Simon Cradick on 029 2038 5464 or at simon.cradick@morgan-cole.com.

Simon Cradick, Partner T: 029 2038 5464 E: simon.cradick@morgan-cole.com

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