Occupiers' Liability - Tort Law UK
Occupiers' Liability Broadly
The standard of care expected of an occupier accords with the status of the entrant on his land:
- Lawful entrants - contractors, invitees, licensees
- Unlawful entrants - trespassers
Two statutes operate here:
- Occupier's Liability Act 1957 - this deals with the standard of care afforded to lawful entrants
- Occupier's Liability Act 1984 - unlawful entrants (trespassers)
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Occupier's Liability Act 1957
- s2(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.'
- s2(2) The common duty of care is 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.
- Wheat v Lacon and Co Ltd
D owned a pub and licensed a part of it to the manager for his use as accommodation. A lightbulb was removed from a staircase in said part and the claimant fell down some stairs and died. Held: despite the accident occurring in the licensee's part of the pub D was still liable as an occupier under s 2 of the Occupiers' Liability Act 1957.
- Tomlinson v Congleton BC
C went for a swim (as a trespasser) in D's lake and in so doing injured himself. Held: no liability under OLA 1984 because the lake was just a normal lake and not in a dangerous state.
- Phipps v Rochester Corp
D successfully argued that he did not owe a duty of care to C (a child) because he could reasonably have expected that any children (including C) who the sewage-trench (which C fell into) may have posed a danger to would have been accompanied by a guardian who would have warned and protected them from it.
- Darby v National Trust
C drowned in a pond. It was argued that had D put up a sign warning that swimming in the lake may result in contracting Weil's Disease, C would not have gone swimming there and so not have died. Held: wrong kind of loss. D did owe a duty to others to put up such a sign concerning Weil's disease but did not have a duty to protect swimmers as this harm was not a reasonably foreseeable risk to entrants.
- Gwilliam v West Herts Hospital NHS Trust
A contractor not having insurance is evidence of him being incompetent.
- Naylor v Payling
Applied Sedley J's dissenting judgement in Gwilliam that not taking out insurance is not indicative of a contractor's competence. Insurance only makes the contractor more desirable to sue if he turns out to be incompetent.
Occupier's Liability Act 1984
- s1(3) An occupier of premises owes a duty to a trespasser 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,
- (c) the risk is one which he may reasonably be expected to offer the other some protection.
- s1(4) Where an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable to see that he does not suffer injury on the premises by reason of the danger concerned.
- Ratcliff v McConnell
C dove into the shallow end of D's swimming pool and hurt himself. He did so as a trespasser. Held: no duty since C accepted the risk that this would happen.
- Donoghue v Folkestone Properties Ltd
C dove into D's harbour in the middle of winter, hitting his head on a gridbed. Held: since D could not have reasonably foreseen trespassers to do this at this time, there was no duty to take reasonable steps to protect them from this danger.
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