LAW OF TORTS

Chapter 8 Part 2 -OCCUPIERS LIABILITY -HEALTH & SAFETY ISSUES

Occupiers Liability
Definitions: Occupier An occupier is someone who has: Physical possession of a property Control over the activities on a property Access to the property
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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, 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 3 otherwise

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, who suffer either personal injury or property damage during the course of their visits. An occupier is the person (not necessarily the owner) who has control over the premises (Pg 128)

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 will be reasonably safe in using the premises for the purposes for which he is invited or permitted to be there

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 trespasser one who was there without the occupiers permission; a licensee a person permitted or invited to be there; an invitee the 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 right this covered a heterogeneous group of people who had a right to go onto the occupiers land, 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 entrant these were people who had paid to use the occupiers premises, such as cinema goers.

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 a school 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 safe A 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 those premises 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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DUTIES TO TRESPASSERS
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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DUTIES TO TRESPASSERS
British Railways v Errington 1972
The 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 to the 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 the particular 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 Owed
The 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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MAIN PROVISIONS OF 1984 ACT

Duty Broken

The duty is to take such care as is reasonable in all the circumstances to 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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MAIN PROVISIONS OF 1984 ACT

Damage

The occupier can only be liable for injury to the person. The Act expressly provides that there can be no liability for loss or damage to property.
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MAIN PROVISIONS OF 1984 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 to users 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.
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