Occupiers' Liability

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BUSINESS AND ECONOMIC

TORTS

Chapter 13

-3. OCCUPIERS LIABILITY


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Definitions OccupierAn occupier is someone who has Physical possession of a property Control over the activities on aproperty ccess to the property

Occupiers Liability


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THE 1957 ACT LATER 1984

Replaces the common law

Consolidates the law

Imposes duties of care on occupiers

Deals with duties owed by contractors Covers liability for injuries arising out of the state of

premises or things done or omitted to be done on them

Does not cover duties to trespassers

An occupier of premises owes the same duty, thecommon 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


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Occupiers Liability

The law of occupiers liability is concerned with the

duty of care owed by occupiers of premises or land

toward visitors, whether invited or uninvited, whosuffer either personal injury or property damage

during 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 the

circumstances of the case is

reasonable to see that the visitor willbe reasonably safe in using the

premises for the purposes for which he

is invited or permitted to be there


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VISITORS

People lawfully on premises

People invited or permitted to be on

premises

People using premises for certain

purposes

People with implied licences

Not trespassers


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Occupiers Liability

Historically, special rules determined who the visitor was:

a trespasserone who was there without the occupiers

permission;

a licenseea person permitted or invited to be there; an inviteethe same as a licensee except that there must

in addition have been something in the nature of a business

relationship between occupier and invitee;

an entrant as of rightthis covered a heterogeneous

group of people who had a right to go onto the occupiersland, including visitors to public facilities such as parks and

playgrounds, the person who came to read the meter and

the fireman who came to extinguish a fire; or

a contractual entrantthese 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 measures

e.g. repair work.

An Occupier is not liable for the

unsafe state of a lift due to negligence

of the specialist firm employed to

repair it but he remains liable when aschool cleaner leaves slippery ice on a

step (not a specialist task)


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OCCUPIERS DISCHARGE

OF DUTY TO VISITORS

(b) By giving warnings

Where a warning is enough to enable the

visitor to be reasonable safeA visitor who ignores a warning may be

consenting to the risk or may be guilty of

contributory 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 a

common law duty of care to ensure that anyone

(even trespassers) who comes onto thosepremises is not injured

CASE:Hackshaw v Shaw(1984)


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Occupiers Liability

Trespasser sues owner for negligence

In a drawn-out case (Hackshaw v Shaw(1984) 155 CLR 614), a farmer was

troubled by trespassers stealing fuel from his property. He finally took the law into

his own hands one night when he saw a man pumping petrol into an unlit car. The

farmer had been lying in wait with two guns and, seizing his opportunity, fired shots

into the car hoping to put it out of action. Unbeknown to him, a girl was hiding in

the car below the level of the dashboard and was hit by one of the bullets. The farmer sued for trespass but while accepting the farmer's evidence that he did

not see the girl at any time and his claim that she contributed to her injury by being

on the property for an illegal purpose, the court found the farmer was negligent.

The farmer appealed to the Supreme Court, which found that the girl was a

trespasser and was owed no duty of care because the farmer did not know she

was in the car.

Finally, however, the girl appealed to the High Court, which found that she was

entitled to damages from the farmer who should not have fired at the car because

of the risk of injury to a person even if he could not see her. The girl's

compensation was reduced by 40 per cent because the Court found that she had

contributed to the negligence by being in an unlit car at night on the farmer's

property while the driver was stealing fuel.


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DUTIES TO TRESPASSERS

Prior to Occupiers Liability Act

1984,occupiers duty to trespassers was to

act with common sense and humanity.

This required all the surrounding

circumstances to be considered, e.g. the

seriousness of danger, the type of

trespasser likely to enter and in some cases

the resources of the occupier.


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Definition of a trespasser a person

whose presence is unknown, or if known is

practically objected to

It may include the innocent as well as the

malicious.

Broadly speaking, it is a person who knows

he does not intend communication with the

occupier or anyone else on the premises.


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

children gained entry to an electrified railway line through a

broken-down fence which divided the line from land open tothe public. British Rail merely reported the matter to the police

but did not repair the fence. A child of six was injured on the

line.

Decision: The occupiers duty must be set by reference to theparticular circumstances of the trespassers. A warning may be

sufficient for an adult but it falls short of the duty of common

humanity owed to a child to safeguard it from accessible and

tempting perils (danger / threat) on the occupier's land.


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MAIN PROVISIONS OF 1984

ACT

Duty OwedThe occupier owes a duty in the following circumstances:

(a) He is aware of the danger or has reasonable grounds to

believe that it exist

(b) He knows or should know that someone is in (or may come

into) the vicinity of the danger

(c) The risk is one against which he may reasonably be expected

to offer that person some protection


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ACT

Duty Broken

The duty is to take such care as is

reasonable in all the circumstancesto see that the person to whom a

duty is owed does not suffer

injury on the premises by

reasons of the danger.


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ACT

Damage

The occupier can only be liable

for injury to the person. The

Act expressly provides that

there can be no liability for lossor damage to property.


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ACT

Warnings

The duty may be discharged by taking reasonable

steps t give warning of the danger.

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 tousers of the right of way for failure to keep it in good

repair: Mc Geown v Northern Ireland Housing

Executive 1994. Thus the 1984 Act applies to

entrants other than trespassers.

Occupiers' Liability

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