Lecture 8B - The Law of Tort (Occupiers' Liability)

7/28/2019 Lecture 8B - The Law of Tort (Occupiers' Liability)

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LAW OF TORTS

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Chapter 8

Part 2

-OCCUPIERS LIABILITY

-HEALTH & SAFETY ISSUES


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Definitions: Occupier

An occu ier is someone who has:

Occupiers Liability

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Physical possession of a property

Control over the activities on a

property

Access to the property


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Occupiers Liability

The law of occupiers liability is concerned with theduty of care owed by occupiers of premises or land

toward visitors, whether invited or uninvited, who

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suffer either personal injury or property damageduring the course of their visits.

An occupier is the person (not necessarily theowner) who has control over the premises (Pg 128)


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THE COMMON DUTY OF

CARE

Duty to take such care as in all thecircumstances of the case isreasonable to see that the visitor will

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be reasonably safe in using thepremises for the purposes for which heis invited or permitted to be there


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VISITORS

People lawfully on premises People invited or permitted to be on

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People using premises for certainpurposes

People with implied licences Not trespassers


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Occupiers Liability

Historically, special rules determined who the visitor was:

a trespasser one who was there without the occupierspermission;

a licensee a person permitted or invited to be there;

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an nv ee e same as a censee excep a ere musin addition have been something in the nature of a businessrelationship between occupier and invitee;

an entrant as of right this covered a heterogeneousgroup of people who had a right to go onto the occupiers

land, including visitors to public facilities such as parks andplaygrounds, the person who came to read the meter andthe fireman who came to extinguish a fire; or

a contractual entrant these were people who had paid to

use the occupiers premises, such as cinema goers.


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OCCUPIERS DISCHARGE

OF DUTY TO VISITORS

(a) By taking reasonable measurese.g. repair work.

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unsafe state of a lift due to negligenceof the specialist firm employed to

repair it but he remains liable when aschool cleaner leaves slippery ice on astep (not a specialist task)


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OCCUPIERS DISCHARGE

OF DUTY TO VISITORS

(b) By giving warningsWhere a warning is enough to enable the

visitor to be reasonable safe

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A visitor who ignores a warning may beconsenting to the risk or may be guilty ofcontributory negligence

But a warning is not sufficient precaution in

some cases. It depends on the facts


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Occupiers Liability

Occupiers must take reasonable care and owe acommon law duty of care to ensure that anyone

(even trespassers) who comes onto those

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prem ses s not n ureCASE:Hackshaw v Shaw (1984)


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DUTIES TO TRESPASSERS

Prior to Occupiers Liability Act1984,occupiers duty to trespassers was to

act with common sense and humanity.

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This required all the surrounding

circumstances to be considered, e.g. the

seriousness of danger, the type oftrespasser likely to enter and in some cases

the resources of the occupier.


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DUTIES TO TRESPASSERS

British Railways v Errington 1972The facts: The local management of British Rail were aware that

children gained entry to an electrified railway line through abroken-down fence which divided the line from land open to

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the public. British Rail merely reported the matter to the policebut did not repair the fence. A child of six was injured on theline.

Decision: The occupiers duty must be set by reference to theparticular circumstances of the trespassers. A warning may besufficient for an adult but it falls short of the duty of commonhumanity owed to a child to safeguard it from accessible andtempting perils (danger / threat) on the occupier's land.


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MAIN PROVISIONS OF 1984ACT

Duty OwedThe occupier owes a duty in the following circumstances:

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believe that it exist

(b) He knows or should know that someone is in (or may comeinto) the vicinity of the danger

(c) The risk is one against which he may reasonably be expectedto offer that person some protection


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MAIN PROVISIONS OF 1984

ACT

Duty BrokenThe duty is to take such care as is

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to see that the person to whom aduty is owed does not suffer

injury on the premises byreasons of the danger.


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ACT

Damage

The occupier can only be liable

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.Act expressly provides thatthere can be no liability for lossor damage to property.


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ACT

WarningsThe duty may be discharged by taking reasonable

steps t give warning of the danger.

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A person using a right of way across land is neither a

licensee nor an invitee and is therefore not a visitor.The occupier of the land is under no liability to

users of the right of way for failure to keep it in goodrepair: Mc Geown v Northern Ireland Housing

Executive 1994. Thus the 1984 Act applies toentrants other than trespassers.

Lecture 8B - The Law of Tort (Occupiers' Liability)

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