Nuances of the Occupiers' Liability Law - Case Study Example

Occupiers' Liability Law Name Course code Tutors name Date Introduction The occupier liability act (1957) came into force in 1957 after being passed by the UK parliament to cover occupier’s liability. The act brought together several levels of visitors to a certain property and also outlined responsibility or duty of care owed to these different levels of visitors by the occupier (Payne 1998 pg 5). The act also codifies the laws that relates to this responsibility or duty of care. The act also includes the duty owed to a special visitor by the occupier and ways in which the occupiers van be exempted from liability. This act was very important because it introduced liability to land owners and landlords who were not responsible enough to maintain their property in a way that would ensure safety to all levels of visitors and even tenants. The act The occupier liability law is concerned with the responsibility of the owners of a certain property, a building or land, have towards those people who visit the property. The visitors may be the ones who have been invited or even the uninvited ones and if they suffer injury during their visits then the owner of the property is liable. The occupier according to the law is the individual who has control over the property (Payne, 1998 pg 8). There are two levels of visitors. The first level is the visitors at the premises without the permission of the owner of the premises and this visitor, in legal terms is called a trespasser. Then the other level is that of the invitee and the licensee who have the permission of the occupier to be within the property. The invitee or the licensee may become trespassers if they go to a part of the premises where they had been warned against going or if they overstay their welcome. This means that in case of any danger arising, such a visitor will have lower degrees of protection by the law. There are other visitors recognised by the law outside the sphere of an invitee, licensee or a trespasser. These are visitors that come to exercise a right. For example, the police carrying out a legal search or the power man who has come to read the electricity meter. Even fire fighters and mailmen fall in this category Section 2(3)a of the occupiers act in the laws of England stipulates that in case the visitors are children, the occupier is expected to exercise higher standards of caution because children are expected to be more careless than adults (Payne, 1998 pg 16). However if the children are accompanied by adults, then the responsibility shifts to those guardians and the occupier will have a lower degree of responsibility should anything happen to the children. The same section part (b) mentions about the special visitors. Special visitors are people who visit a premise to exercise a skill. It may be the mechanic who has come to repair the car or any other visitor who has come to use his skill within the premises that the occupier is in control. To this kind of a visitor, the occupier does not need to exercise extra caution to prevent injuries that pertain to their profession (Linden,1997 pg 78). This is because the law understands that this people have a better knowledge of the risks in their profession than the occupier and the occupier cannot be held responsible if for example, corrosive acid pours on the leg of the mechanic. There are some conditions under which the occupier cannot be held liable. To start with, any damage caused by people working in the premises that the occupier is in control would be considered as negligence on part of those workers and not the occupier. However, if the occupier inn his knowledge employs people who are not competent and those people cause damages, then the occupier would be liable. He may also be liable if he fails tom supervise the work being done by those workers. Case Scenario Lord Walter smith is the owner of a very extensive county estate which is accessible to the members of the public at a fee. The Lord wants to boost his revenue so he decides to construct a lake that can sail small dinghies A section of the estate has been fenced off using 2.4 high plywood sheets and there are some contractors on site to construct the lake within the premises. Two months after the project kicked off a ten year old girl and her 9 year old friend, West and Peat respectively visit the estate during the weekend while the contractors are not on site working and they notice that part of the fence is torn. The two squeeze through the loophole in the damaged fence and gain entry into the area where the lake is being excavated and lined. The contractors have been very irresponsible and they have left a lot of rubbish lying allover the place. Peat trips over some rubbish and seriously hurts her leg. As west tries to get her through the hole in the fence, her new coat is torn. Outside the fence, there is a sign reading “there will be no liability accepted by the contractors for damage or injury caused to visitors while visiting this estate”. The following Tuesday, Keel, the construction site manager, decides to work late in order to catch on his paper work while all the workers have gone home. There is a warden employed at the site by Lord Walter Smith. The name of the warden is Smith. The warden tours the whole estate with a recently retired police dog called gnasher. The contractors have requested smith to be checking on the site of their construction every evening to ensure that people do not trespass. Gnasher is sometimes let off at the site especially when all the people have left. When Keel, decides to go home after his overtime work, he finds that gnasher has already been released. Immediately after seeing keel leaving, the dog gives him a chase and bites. Keel is terrified of dogs and allergic to their bites and he is hospitalized for three days. Arbitration To start with, the case of West and Peat can be addressed by S 1(2) of the Act which recognizes them as visitors in the estate and thus Mr. Walter smith owes them duty of care when within the precincts of the premise, whether they were invited visitors or not. However, the same cat provides that if the visitor moves to areas prohibited by the occupier, they become trespassers and therefore they cannot be covered by this likability act. West and Peat, while on a visit to the estate trespass into the construction site and one of them gets injured in the process. Does this mean that the two girls are therefore not protected by the act and that Lord later smith is not liable to their injuries? The same act has a subsection on children. The subsection 2(3) a of the occupiers act of the laws of United Kingdom does not remove the liability from Lord Walter Smith just because the children moved to areas that had been declared out of bounds. This act stipulates that in case the visitors are children, the occupier is expected to exercise higher standards of caution because children are expected to be more careless than adults. This means that West and Peat, being children are not removed from the liability of Mr Walter smith because the occupier was supposed to exercise extra caution when the children are within. The occupier did not exercise extra caution when the children came visiting and as expected, the children were very careless and ended up in barred areas and got injured. This means that a sense of duty of care is owed to the by Mr. Walter Smith. It is very early to determine whether Walter smith should be liable for the damages and injuries that peat got during the visit to the estate. This is because the same act has a subsection that removes responsibility from the occupier if the mistakes that led to the injuries are as a result of the carelessness of a party that had been independently contracted by the occupier. Section2 (4) b of the act stipulates that, any damage caused by people working in the premises that the occupier is in control would be considered as negligence on part of those workers and not the occupier. (Payne, 1998 pg 19). This means that the independent contractor was therefore supposed to take liability for the injuries and damages that peat got. However, the clause seems to create some exemptions that could favour the contractor and shift the liability back to lord Walter smith. This is because the act in the same clause states that, if the occupier in his knowledge employs people who are not competent and those people cause damages, then the occupier would be liable. He may also be liable if he fails tom supervise the work being done by those workers. The question that arises here is, did Walter Smith ascertain whether the contactors were competent enough to carry out the work on the site with the relevant expertise and caution? Did Walter Smith supervise the work of the contractors well enough to ensure that they were carrying out the work in the acceptable way. Apparently, the occupier ha failed to do his work. Had he been supervising the work of the contractor, he would have noticed the carelessness of the contractor that led his people to leave the place untidy every day and it is this heap of untidy garbage that injured peat. Secondly,. If at al he was supervising the construction site as stipulated by the law, he would have noticed the carelessness of the contractor that made him operate with a damaged fencing. This fencing is the one that gave peat and west access to the site prior to the injury of one of them. The occupier and the contractor may say that there was a warning in the site as stipulated by the act in section 2(40 a but, 1.Warning does not suffice in case of an injury because warning is not excuse for carelessness according to the clause (Bermingan,2008 pg 112). 2. The involved parties are children and the clause on children still stands. Therefore the arbitration finds Lord Walter Smith liable for the injuries and the damages that peat suffered because of the following conditions stipulated by the occupiers’ law. To start with the two girls were within the age recognised by law as children and Lord Walter Smith ought to have take extra care when they were present in the estate. Secondly, the Lord employed incompetent contractors who were not responsible enough to follow out the laid down security measures expected at construction site. Finally, Lord Walter Smith failed to supervise the work of the contractors meaning that he should pay for the damages and injuries suffered by Peat In the case of keel, who was bitten by the dog within Lord Walter Smith’s estate, the law is simple and straightforward on visitors of Keels type. Though the occupier is liable for the injuries suffered by any visitor in his or her premises, the liability for the case of keel reduces very much. This is because the act stipulates that, if a visitor overstays their welcome, then they have already become trespassers (Bermingham, 2008 pg 116).. The dog is released after all workers have gone so as to deter trespassers and it did what it was required to do, to keep trespassers away. At the time keel was bitten, he was no longer a visitor but a trespasser which means that the act that protects visitors cannot protect him in this case. This means that lord Walter Smith can only take partial liability for the injuries caused by the dog because the law also partially protects tress passers. The warden in this case was not irresponsible when Keel was bitten by the dog Bibliography Bibliography Bermingham, V 2008. Tort Law. Oxford, Oxford University Press Linden, A. 1997, British Tort Law, Lowman and Littlefield London Payne, D, 1998, The Occupiers' Liability Act. Modern Law Review Blackwell, London   Read More