Safety Health and Environment: Occupiers Liability Act 1984 - Assignment Example

Safety Health and Environment A. LIABILITY OF THE OWNER/OCCUPIER OF THE BUILDING Occupier’s Liability Act 1984 The occupier of the building will be liable depending on the circumstances as to the person entering unlawfully, the time of the entry and the other circumstances of the case. An occupier of a building or premises does not only owe a duty of care to a visitor of that building or premises, but also to one who is not an invitee of the occupier, meaning that such an individual is a trespasser to that building or premises. This is the principle laid down in the Occupier’s Liability Act of 1984. For the liability to attach under said law against the occupier of the building or premises, three elements must be met: the occupier is aware of the danger or has reasonable grounds to believe that it exists; he has knowledge or has reasonable grounds to believe that an unlawful entrant is in the building or premises or may come into the building or premises, and; it is reasonable for such occupier to offer protection against such risk (§3[a],[b] and [c], Occupier’s Liability Act 1984). The liability of the occupier with respect to any risk that put any trespasser in danger while in his property is extinguished by putting up warning signs of the danger or by discouraging trespassers from taking the risk as provided by §5 of the Act. No liability is incurred, however, if the trespasser has accepted the risk The existence of disrepair or danger is the primary element without which no liability can attach at all. In Keown v Coventry Healthcare NHS Trust [2006] 6 1 WLR 953, CA, the Court did not award compensation for injuries sustained although the case involved a child who climbed the defendant’s fire escape and fell 30 feet down. The Court said that there was no duty of care that can be pinned down on the owner because there was nothing wrong with the fire escape and it was only the child, who was old enough to foresee the danger, who made it dangerous through his action. In the present case, there certainly is basis for the liability to attach as evident from the building’s physical condition-holes on the floorboard, damaged wooden racks which may collapse at any time- and as a matter of fact, acknowledge this state of disrepair by putting warning signs on the premises. The second element is dealt with in the cases of White v St Albans City and District Council [1990] The Times 12; Donoghue v Folkestone Properties [2003] QB 1008 (CA), and; Swain v Puri [1996] PLQR P442 (CA). In White, the claimant entered the defendant’s land to take a short cut to the place where he was going through a fence easily not tightly secured although not damaged. He fell through a trench whilst he was inside the property and suffered injury as a result. Holding that the likelihood of trespassers entering another’s property should be determined on a case to case basis, the Court did not award the claimant compensation on the ground that the occupier did not know that the claimant was in his property or that he had reason to believe that the trespasser would enter it. Similarly, in Donoghue, the Court did not find for the trespasser when he injured himself when he dived into a tidal harbour after midnight in midwinter and hit a submerged grid because of the lack of reasonable ground to believe that any person would do that. The phrase “reasonable grounds to believe” as used in the context of probability of a trespasser entering a property and be exposed to danger was further explained in Swain where the Court held that the phrase should mean that the occupier has actual knowledge of the relevant facts or know of facts that could give him grounds to believe that a trespasser is likely to enter his property. Here a child entered his property went up the roof and fell. The property was fenced adequately and there was no prior evidence that others have unlawfully entered the property. In the present case, there is not problem establishing the second element because the occupier had already been apprised of the presence of trespassers in the past. The third element of reasonable provision of “protection” to trespassers considering the type of risk is illustrated by the case of British Railways Board v Herrington [1972] AC 877. In this case a 6-year old child trespassed into a live railway line from a park where he was playing entering through a part of the railway’s fence that had been partially damaged. The Court said “With the increase of the population and the larger proportion living in cities and towns and the extensive substitution of blocks of flats for rows of houses with gardens or back yards and quiet streets, there is less playing space for children and so a greater temptation to trespass. There is less supervision of children, so that they are more likely to trespass” (British Railways Board v Herrington [1972] AC 877). Thus, it would have only been reasonable for the company to repair the fence considering its proximity to a children’s park and the likelihood of children wandering to the area. In the present case, the disrepair of the storage building is glaring and any reasonable person would know that the hole on the floorboard might either lead to a collapse of the entire floor or cause a person to fall from the second floor to the first floor. A reasonable person would have known of the danger they pose and take to repairing them. This was not done, however, in this case. The liability can be discharged with warning signs appropriately placed or if the claimant himself, by his actions, has accepted the risk. In Tomlinson v Congleton [2003] UKHL 47, [2004] 1 AC 46, the Court held that the primary goal of the act is not simply to compensate any injury suffered by a trespasser, but to hold the occupier liable for breach of duty. Thus, although the plaintiff suffered a neck injury and became a tetraplegic after he dived into a shallow end of an artificial lake, the Court did not award him any compensation. The rationale for the decision was that the occupiers’ liability was discharged by warning signs they put up around the area as well as the removal of attractive features around it so as not to attract trespassers.But even without warnings signs, a claimant will not succeed if the danger is obvious. In Ratcliff v. McConnell [1999] 1 WLR, the Court held here that the defendant was not liable because of the obviousness of the danger of diving in the shallow end of the pool. In addition the gates to the pool was closed and there were warning signs prohibiting the use of the pool at night and warning of the depth at the shallow end of the pool. Similarly, in Baldaccino v. West Wittering Estate PLC [2008], the trespassers, who were boys, sustained injury after they dived from a navigation buoy into a shallow water after the tide has recede. The Court held that the buoy in itself posed no danger it was the children’s act that made it one. In the present case, the facts of the case tend to point to liability that would be incurred by the occupier in the case a trespasser injures himself because of the disrepair by the building. The occupier has placed some signs along the two stairs going up the second floor and disconnected the electricity. This seems to be inadequate considering that he has not identified the specific danger that the trespasser will confront if he goes inside building, which means it could be anywhere. The signs should have explicitly warned the kind of danger that will confront the trespasser once inside building. In addition, a trespasser who enters at night and is not able to read the sign or enters the building through a fire escape into the second floor would not be apprised of the dangers within. The disconnection of the electricity should be a point for the occupier because this implies that he has taken measures to repel trespassers from entering the building and to be more cautious if they do. The occupier in the present case may either be liable or not liable depending on the circumstances of the unlawful entry, although the bare facts alone could heavily contribute to a finding of liability. B. Liability of Trespasser under a Statute The unlawful entry of a person into a building is actionable only under English statute if there is intent to steal or harms or attempts to harm a person inside. Mere attempt or actual stealing both qualifies the entry into burglary. The applicable law is §9 of the Theft Act 1968. The law requires the existence of the following elements: unlawful entry, and; steals or attempt to steal anything in the building. Works Cited British Railways Board v Herrington [1972] AC 877 Donoghue v Folkestone Properties [2003] QB 1008 (CA) Keown v Coventry Healthcare NHS Trust [2006] 6 1 WLR 953, CA Occupier’s Liability Act 1984 Ratcliff v. McConnell [1999] 1 WLR Swain v Puri [1996] PLQR P442 (CA) Theft Act 1968 Tomlinson v Congleton [2003] UKHL 47, [2004] 1 AC 46 White v St Albans City and District Council [1990] The Times 12 March Read More