Occupiers’ Liability and Liability for Defective Premises
7
Occupiers’ liability and
liability for defective
premises
AIMS AND OBJECTIVES
After reading this chapter you should be able to:
■ Understand the nature of liability under the Occupiers’ Liability Acts
■ Understand the definitions of occupier and premises
■ Understand the different types of visitor and the Act appropriate to each
■ Understand the scope of the different duties under the two Acts
■ Understand the different standard of care appropriate to children
■ Understand the means of occupiers avoiding liability in respect of tradesmen, where independent contractors have caused the harm, and the effect of warnings, exclusion clauses and defences
■ Critically analyse the Acts
■ Apply the law to factual situations and reach conclusions as to liability
7.1 Origins and general character
7.1.1 Introduction and origins
Occupiers’ liability concerns the liability of an ‘occupier’ of land or premises for the injury or loss or damage to property suffered by claimants while on the occupier’s ‘premises’. Therefore it must immediately be distinguished from damage caused by the defendant’s use of his land, which is suffered by the claimant outside of the occupier’s land. If this were on the claimant’s own land then it might lead to an action in nuisance (see Chapter 9) or possibly Rylands v Fletcher [1868] LR 1 Exch 265 (see Chapter 10), or there may in any case be an action in negligence available.
Liability for land and premises falls into two distinct areas:
■ Liability by an occupier of premises for loss or injury caused by the state of the premises – such liability can also be divided according to whom has suffered the loss or injury.
■ Liability by a person other than an occupier of land for defects in the premises themselves – this involves landlords and builders.
Occupiers’ liability is a fairly recent tort and is found in two statutes:
■ the Occupiers’ Liability Act 1957 – which is concerned with the duty of care owed to all lawful visitors; and
■ the Occupiers’ Liability Act 1984 – which is concerned with the duty owed to people other than lawful visitors, the major group here being trespassers.
trespasser
A person who enters premises without permission or who exceeds the permission they are given
Both areas then are statutory in form, but certainly in the case of occupiers’ liability have developed out of negligence. As a result much of the terminology and many of the principles are the same or similar to basic negligence principles. Indeed, though the Acts do contain extensive definition, where definitions are not supplied in the Acts these are to be found in the common law.
Inevitably there is some overlap with negligence. The basic liability arises from the loss or injury caused by the ‘state of the premises’. Loss or damage that arises other than because of the state of the premises then should be claimed for under negligence where this is possible.
CASE EXAMPLE
Ogwo v Taylor [1987] 2 WLR 988
Here there was no liability under the Act when a fireman was injured in a fire on the defendant’s premises. As Brown LJ commented in the case the fire did not result from defects in the state of the premises, so liability was in negligence.
Nevertheless academics have argued that the Act should still apply in the case of damage caused other than by the state of the premises since s1(1) of the 1957 Act states that the Act should apply ‘in respect of dangers due to the state of the premises or to things done or omitted to be done on them’.
The law on occupiers’ liability is generally accepted as being very straightforward:
QUOTATION
‘the 1957 Occupiers’ Liability Act & has always been regarded as a particularly well drafted statute, partly because it is one of the few statutes which attempts to give illustrations and examples of the way in which it is to operate, and partly because there has been little litigation which involves its interpretation’.
V Harpwood, Principles of Tort (Cavendish Publishing, 2000)
On the other hand the law on defective premises has never been considered to be particularly straightforward:
QUOTATION
‘few areas of tort have fallen into greater confusion than the liability of those who build and sell premises’.
W Rogers, The Law of Tort (Sweet … Maxwell, 1989)
Although the 1957 Act has been described as a particularly well- drafted statute it still suffers from under- use. The Pearson Report in 1978 for instance recognised that as many as 27 per cent of reported accidents occur in the home. Nevertheless apparently very few claims are made following domestic accidents. There can obviously be many reasons for this. These include ignorance of the possibility of making a claim, a natural reluctance to sue friends or family and sometimes even a lack of household insurance might prevent a claim.
7.1.2 Definition of occupier – potential defendants
In the case of both the 1957 Act and the 1984 Act potential defendants are identified as being occupiers of premises.
There is in fact no statutory definition of ‘occupier’ in either Act. Section 1(2) of the 1957 Act merely states that the rules apply ‘in consequence of a person’s occupation or control of premises’. In the absence of a statutory test the established test for determining occupation then is found in the common law.
CASE EXAMPLE
Wheat v E Lacon & Co Ltd [1966] AC 552
A manager of a public house was given the right to rent out rooms in his private quarters even though he had no proprietary interest in the premises. When a paying guest fell on an unlit stair-case, the House of Lords held that both the manager and his employers could be occupiers for the purposes of the Act. In the event neither had actually breached their duty since it was a stranger who had removed the light bulb and therefore there was no liability to the manager.
Earlier in the Court of Appeal Lord Denning had commented:
JUDGMENT
‘There is no difficulty in having more than one occupier at one and the same time, each of which is under a duty of care to visitors.’
Identifying the occupier will depend then on various considerations, including the nature of the interest held and therefore the particular duty owed. For instance, in a case like the above the brewery might very obviously be responsible for ensuring that there were no defects in the wiring, while the publican might be responsible for ensuring that light bulbs were changed.
So there can be dual or multiple simultaneous occupation of premises and the identity of the defendant, which party was in control of the premises, may depend on the circumstances in which the damage or injury was suffered.
CASE EXAMPLE
Collier v Anglian Water Authority, The Times, 26 March 1983
Here a promenade formed part of the sea defences for which the water authority was responsible. The local authority owned the land, and was responsible for cleaning the promenade. Both could therefore be classed as occupiers for the purposes of the Act. When the claimant ; was injured as a result of disrepair to the promenade, it was the water authority rather than I the local authority which was liable, though both were occupiers.
Control and therefore occupation of premises does not require either proprietary interest or possession, so the position is quite different from trespass to land (see Chapter 8). All that is required for liability is that the defendant has sufficient control of the premises at the time that the damage was caused to be responsible for it.
CASE EXAMPLE
Harris v Birkenhead Corporation [1976] 1 All ER 341
Here a four-year-old child had been injured in an empty house which was not boarded up or secured in any way. The child had entered the premises and fallen from a second floor window. Even though the council had not yet taken possession of the house they were liable since they had served notice of a compulsory purchase order and were effectively in control of the premises. They were held to be occupiers and liable even though they had not yet taken physical control because in effect they had legal control of the premises and were the best placed in that sense to avoid accidents of the sort that occurred.
In the final analysis the court in applying the control test to determine the identity of the defendant will be influenced by the ability of the party to meet a successful claim, whether through insurance or by other means.
7.1.3 Definition of ‘premises’
The Acts are again relatively silent on the meaning of premises and there is no fixed definition. Some limited reference is given in si (3) (a) which refers to a person having occupation or control of any ‘fixed or moveable structure, including any vessel, vehicle and aircraft’.
As a result the common law again applies and besides the obvious, such as houses, buildings and the land itself, premises have also been held to include:
■ ships in dry dock – London Graving Dock v Horton [1951] AC 737;
■ vehicles – Hartwell v Grayson [1947] KB 901;
■ aircraft – Fosbroke-Hobbes v Airwork Ltd [1937] 1 All ER 108;
■ lifts – Haseldine v Daw & Son Ltd [1941] 2 KB 343;
■ and even a ladder – Wheeler v Copas [1981] 3 All ER 405.
7.2 Liability to lawful visitors under the 1957 Act
7.2.1 Potential claimants
The 1957 Act was passed in order to simplify a fairly complex common law, whereby the duty owed to a person entering premises varied according to the capacity in which that person entered. The Act introduced a common duty to be applied to all lawful visitors.
By s1(2) the classes of people to whom the occupier owes a duty remains as it was under common law. These are called visitors under the Act and as a result of sl(2) will include:
■ Invitees – these are people who not only have permission to enter but whose entry is in the material interest of the occupier – it can include, for example, friends making a social call, but also people invited on to land for a specific purpose, for example to give a quote for work.
■ Licensees – these are people whose entry is to the material interest of the occupier, for example customers, they can include anyone with permission to be on the premises for whatever purpose (there was a very unfair distinction drawn between invitees and licensees at common law – the latter were treated somewhat harshly by the common law, being entitled to no more than warnings of danger of which the occupier was aware – it was indeed criticism of this unfairness by the Law Reform Committee in 1954 that in part led to the passing of the 1957 Act) – visitors under an implied licence will need to prove that the conduct of the occupier amounted to a grant of a licence.
CASE EXAMPLE
Lowery v Walker [1911] AC 10
Ten members of the public had used a short cut across the defendant’s land for many years. While the defendant objected, he took no legal steps to stop it. When he set loose a wild horse on to the land, which savaged the claimant, he was liable. The House of Lords concluded that the defendant’s conduct had created an implied licence in favour of the claimant.
CASE EXAMPLE
Harvey v Plymouth City Council [2010] EWCA Civ 860
The Council owned open land which it was aware was used by children and teenagers for a variety of recreational purposes. The claimant was injured one evening when he fell about five metres down a sheer drop after running away from a taxi having not paid the fare. The drop was actually bordered by a chain link fence but this had been pushed down. The trial judge held that the claimant had an implied licence to use the land and the council was liable, although it did reduce damages significantly for the claimant’s contributory negligence in running in the dark. The Court of Appeal held that on the contrary the implied licence would only cover reasonable recreational activities and there was no liability on the council to compensate the claimant for injuries that resulted from reckless behaviour, running in the dark.
An implied licence can be created in the following situations, for example:
■ Those entering tinder a contractual agreement which could occur in one of two situations:
■ where the person has a direct contract with the occupier, for example a painter and decorator, plumber – in this case the express terms of the contract will determine the extent of the duty or there may be an implied duty to keep the premises safe – by s5(l) the common duty of care will apply unless the contract actually provides for a greater level of care;
■ where the person entering has a contract with a third party, for example a subcontractor – in this case that person ranks as a licensee and the question is whether or not they could be subject to the exclusion clauses imposed by the occupier.
■ Those not requiring any permission to enter because of a legal right to enter, for example meter readers, police officers in execution of a warrant – s6(2) provides that such persons are ‘visitors for that purpose whether or not the occupier has given permission’. Persons entering under this category traditionally would have included those exercising either public or private rights of way – specific rules covered these parties at common law but neither is covered by the 1957 Act.
The 1957 Act imposes no duty of care towards trespassers. A more limited duty is owed to trespassers under the Occupiers’ Liability Act 1984. Certain other categories of entrants are also not covered by the 1957 Act. These include:
■ Those using a private right of way – here the 1984 Act now applies but prior to that there would have been no liability.
CASE EXAMPLE
Holden v White [1982] 2 WLR 1030
Here a milkman was injured because of a defective manhole cover on the defendant’s premises while using a private right of way. It was held that he was not a visitor for the purposes of the 1957 Act and his claim was unsuccessful.
■ Those entering tinder an access agreement or order tinder the National Parks and Access to the Countryside Act 1949 (which is specifically excluded by si (4) of the 1957 Act but is also now dealt with under the 1984 Act).
■ Those using a public right of way – these are excluded by both the 1957 Act and the 1984 Act and will fall under common law with the tortfeasor being liable for misfeasance but not non-feasance unlike either Act.
CASE EXAMPLE
McGeown v Northern Ireland Housing Executive [1994] 3 All ER 53
The claimant lived in a cul-de-sac on a housing estate owned by the defendants. She was injured on a footpath belonging to the defendants but which had become a public right of way. The reason for the injury was a failure to maintain the footpath and her action failed.
ACTIVITY
Quick quiz
Consider which of the following potential claimants would be able to class themselves as visitors for the purposes of the OLA 1957 and why.
1.Trevor is a milkman delivering milk to Archie’s door.
2.Kurt is a milkman who picks flowers in Archie’s garden after delivering the milk.
3.Gordon, a football fan with a season ticket for the Wanderers, arrives at the ground on Wednesday night for the match with United.
4.Hannah regularly crosses Farmer Giles’ field using a well-known public path.
5.Greg is at Mavis’s house on Monday morning as agreed to paint the outside.
6.Ali is a police officer who has called at Brian’s house for some routine enquiries.
7.Tom regularly climbs over his neighbour’s back fence and comes through his back garden on his way home, knowing that his neighbour works later so will be out.
8.Parminder calls at her friend Baljinder’s house as arranged to enjoy a meal together.
9.Baljinder is at her friend Parminder’s house for a meal and enters Parminder’s bedroom and takes a valuable ring.
10.Yuri is an employee of British Gas and has called at Ojukwu’s house to read the gas meter.
7.2.2 The scope of the Act – the common duty of care
The extent of the duty of care is set out in s2(1):
SECTION
‘s2(1) An occupier owes the same duty, the common duty of care, to all his visitors except insofar as he is free to do and does extend, restrict, modify or exclude his duty to any visitors by agreement or otherwise.’
The nature of the duty is found in s2(2). The duty is to:
SECTION
‘s2(2) … take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe for the purpose for which he is invited or permitted by the occupier to be there’.
Three key points need to be made straightaway:
■ First, the standard of care is that generally applied in negligence, the standard of the ‘reasonable man’. As a result the occupier is merely obliged to guard against foreseeable risks, not unexpected risks.
CASE EXAMPLE
Fryer v Pearson, The Times, 4 April 2000
A family visitor was injured by a needle while kneeling on the floor. The court held that the occupiers, the house owners, had not breached the duty. There was nothing to suggest that they knew the needle was on the floor or had created the danger. The Court of Appeal distinguished Ward v Tesco Stores [1976] 1 WLR 810 where a greater duty might be owed by a shopkeeper towards customers slipping on spilled yoghurt.
The standard of care is measured objectively by the court so it is what is reasonable in the circumstances.
CASE EXAMPLE
Esdale v Dover District Council [2010] EWCA Civ 409
The council owned a block of flats in which the claimant lived. She was injured when she tripped on a path leading to the flats. The path was made partly of concreet and partly of tarmac and the path was uneven where the two materials joined which the claimant argued had caused her injury. Although the trial judge rejected the claim an appeal was lodged on the basis that the council generally repaired defects in paths which were uneven by three-quarters of an inch. Here the uneveness was between three-quarters of an inch and an inch. The Court of Appeal rejected the argument that this policy of the council meant that it had not acted reasonably in the circumstances by not remedying the defect.
It is certainly true that an occupier will not have to go to extraordinary lengths to protect a visitor from harm.
CASE EXAMPLE
Cole v Davis-Gilbert and the Royal British Legion [2007] All ER (D) 20 (Mar)
A woman broke her leg when she stepped on a hole hidden by grass while she was crossing a village green. The hole was used for inserting a maypole during annual fetes. She sued the owner of the village green arguing that, as an occupier, he had a duty to keep visitors safe. She also sued the British Legion which had erected the maypole and filled the hole after the fete, some 21 months before the woman’s injuries. At first instance she failed against the owner but succeeded against the Royal British Legion. The Court of Appeal held that there could be no duty on the owner to inspect the green for holes. Even a daily inspection could not guarantee that there would be no holes as the green was used by many people for many different purposes. Even if the British Legion owed a duty to see that the hole was properly filled in, this duty could not last indefinitely, and certainly not for 21 months after it last filled it. As Lord Justice Scott Baker observed in his judgment, sometimes accidents are just pure accidents.
■ Second, the duty in the 1957 Act only applies so long as the visitor is carrying out activities that are authorised within the terms of the visit. So if the visitor strays he may lose protection under the 1957 Act, although an action might still be possible since the 1984 Act might still apply.
■ Third, the duty is to keep the visitor safe, and not necessarily to maintain safe premises. If the latter were the case it would make industry unworkable, so it is possible to cordon off unsafe parts as long as the visitor is still made safe in those parts to which he lawfully has access.
CASE EXAMPLE
Searson v Brioland [2005] EWCA Civ 26
The claimant was injured entering a hotel to attend a wedding because the threshold was higher than the floor level. The occupier was liable and should have placed a warning notice.
However, because of the scope and potential limitations of the duty the Act sensibly makes some different rules for particular classes of visitor.
7.2.3 Liability to children
Under s2(3) the occupier:
SECTION
‘s2(3)… must be prepared for children to be less careful than adults … the premises must be reasonably safe for a child of that age’.
This demonstrates again that it is the visitor that must be kept safe and that in the case of children the standard of care is measured subjectively rather than objectively.
The reasoning is perfectly logical, what may pose no threat to an adult may nevertheless be very dangerous to a child.
CASE EXAMPLE
Moloney v Lambeth LBC [1966] 64 LGR 440
Here a four-year-old fell through a gap in railings guarding a stairwell and was injured. An adult could not have fallen through the gap so such an injury would have been impossible. Nevertheless it was dangerous to a child and a child in any case may have been incapable of appreciating the risk involved. The occupier was held to be liable by the court.
Children in any case are taken to be unlikely to appreciate risks in a way that an adult would and indeed might even be attracted to the danger. As a result an occupier should do nothing to attract the child to the danger and must guard against any kind of ‘allurement’ which places a child visitor at risk of harm.
CASE EXAMPLE
Glasgow Corporation v Taylor [1922] 1 AC 44
Here a seven-year-old child ate poisonous berries in a botanical gardens and died as a result. The shrub on which the berries grew was not fenced off in any way. The court held that the occupier should have expected that the berries might naturally attract a young child’s interest and the occupier was liable.
Nevertheless, the mere existence of an allurement on its own is not sufficient ground for liability.
CASE EXAMPLE
Liddle v Yorkshire (North Riding) CC [1944] 2 KB 101
A child was injured when he jumped off a soil bank while showing off to his friends. The court held that, despite the obvious allurement, the defendant was not liable since the occupier had warned the child away from the bank on numerous previous occasions.
In fact, even though an allurement exists there will be no liability on the occupier if the damage or injury suffered is not foreseeable. As with negligence generally it is the general type of damage that must be foreseen rather than the specific circumstances in which the damage occurs.
CASE EXAMPLE
Jolley v London Borough of Sutton [2000] 3 All ER 409, HL; [1998] 3 All ER 559, CA
The council failed to move an abandoned boat from an estuary shore for two years. Children regularly played in the boat and it was clearly a potential danger. When two young boys of 14 jacked the boat up to repair it, the boat fell on one, injuring him. In the Court of Appeal the action for compensation failed, since it was held that, while the boat was an obvious allurement, the course of action taken by the boys and therefore the specific type of damage were not foreseeable. The House of Lords reversed this. The House felt that it was an obvious risk that children playing on or near the boat might be injured. It was sufficient for liability that some injury was foreseeable.
As Lord Hoffmann said in the House of Lords in the case:
JUDGMENT
‘the [trial] judge’s broad description of the risk as being that children would “meddle with the boat at the risk of some physical injury” was the correct one to adopt’.
So the House of Lords applied the principle of causation from The Wagon Mound.
Obviously the decision can seem harsh since it would be quite difficult to argue that the council could in fact have foreseen the very unusual way in which the injuries occurred. Nevertheless, the Act imposes a duty on an occupier to recognise that children may behave in very different ways from adults. It is possible therefore to see the judgment as a very practical application of the law.
QUOTATION
‘In essence, the House of Lords has confirmed in case law what all parents knew already: the only predictable attribute of children is that they are unpredictable, and society (including councils) should protect them accordingly.’
S Brooman, ‘Expect the Unexpected’ (November 2000) L Ex, p. 34
In any case the courts will sometimes take the view that very young children should be under the supervision of a parent or other adult. In this case the occupier might find that he is relieved of liability.