Occupiers Liability Problem - Essay Example

OCCUPIERS’ LIABILITY PROBLEM Introduction: The Occupiers’ Liability Act of 1957, which came into force on January 1958, has created significant changes and has made important inroads in the area of law that governs liability incurred for injuries sustained in premises considered dangerous or perilous. It provides a set of specific statutory guidelines to supplant common law rules to regulate the liability of an occupier towards his invitees, licensees and contractual visitors. The most significant change in the act is that it imposes on an occupier of the premises a “common duty of care” to all his lawful visitors, except insofar as he is free to and does extend, restrict, modify, or exclude his duty to any visitor or visitors by agreement or otherwise.” It also applies to a person who enters the premises in order to fulfill a contractual right. This is the law that is applicable as we review the facts of the case that we are presented with. In this case, Peter, who owns Rawley House, decided to have the house redecorated and employed a local electrician, Steven, to install new wall lights in the long gallery. After Steven had finished the installation, Peter employed Thomas, a decorator, to paint the walls of the gallery. While painting the walls Thomas suffered severe burns as a result of touching a live wire which Steven had left protruding from the wall. After work was completed, Peter allowed the local Historical Society to visit the house. In the entrance hall of the house is a notice which states: "The owner welcomes visitors to the property but cannot be held responsible for any injuries sustained by person or property during the course of the visit." Just after the Historical Society arrived at the Rawley Hose, Victor, a poacher, climbed over the wall onto Peters land. Victor caught his footing in a trap set to catch foxes. On hearing Victors screams. Peter, and his visitors, rushed out of the house. During the commotion Sam, aged 5, wandered into the garden. he climbed up a rotten rails trellis, which was lodged against the garden wall, and fell through a glass roof severely injuring himself. Sams father, who had brought him on the visit to Rawley House, found the injured boy thirty minutes later. ADVICE THE POTENTIAL CLAIMANTS: Thomas: Thomas has a right to claim damages from Peter by virtue of the employer-employee relationship. However, under the Occupiers’ Liability Act, he may have to seek damages against the local electrician, Steven, who is an independent contractor, absent any showing that Peter acted negligently in the hiring and selection of Steven as his electrician. First, on the theory that Thomas is the employee of Peter and Peter therefore is charged with the responsibility of looking after his well-being while in the workplace and performing functions for which he was hired, the applicable case is Wilson & Clyde Coal Co Ltd v English1, which is the seminal case that illustrates the three-fold duty of the employer. An employer is mandated to provide: a safe place of work a safe system of work effective supervision proper plant and materials competent staff. In this case, it is clear that Thomas is under the employ of Peter as a decorator, and he is tasked to paint the walls of Peter’s premises. Hence, it cannot be denied that Peter has a duty of care to Thomas. A defense that may be raised theoretically is contributory negligence. This factor is based on the legal provision which states that: "…Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons, acclaim in respect of that damage shall not be defeated if the fault of the person suffering the damage, but damages in respect of the damages recoverable thereof shall be reduced to such an extent the court thinks fit just and equitable having regard to the claimants share in the responsibility for the damage…"2 Fault is defined as "…negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apasrt from this act, give rise to the defence of contributory negligence…"3 However, in this case, there is no showing that Thomas is guilty of contributory negligence. With regard to the second prong in argumentation, it is important to state that Peter hired the electrician Steven as an independent contractor. Where a danger is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier will not to be answerable for the danger if in all the circumstances he acted reasonably in entrusting the work to an independent contractor and took such steps as he reasonably ought to in order to satisfy himself that the contractor was competent and the work was properly done (s2(4)(b)). The relevant case for this doctrine is Haseline v. Daw4, where the court held that the landlord was not liable for injuries incurred because of a crashing lift but rather it was the engineer who was liable. Since the facts did not state that Peter acted with negligence, the presumption must be that he exercised a reasonable degree of care and foresight in the selection of his independent contractor, in this case, Steven. What Thomas may do is he may proceed against Steven for damages. Another issue that must be resolved is the issue of whether or not “common calling” may be used as a defense by Peter/Steven. An occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so (s2(3)(b)). However, the exercise of Thomas’ calling as a decorator does not involve guarding against or risking electrocution. Hence, Steven/Peter are not absolved based on this ground. Victor Victor is a poacher who climbed over the wall oonto Peter’s land. He caught his foot in a trap set to catch foxes. He is clearly not a welcome visitor in the premises, and he may in fact, be considered a trespasser. However, considerations of humanity have animated the law and it has now evolved so as to grant basic protections to intruders or trespassers who find themselves in peril or injured in another person’s property, for reasons that would have made the occupier liable, if they were invited guests or legal visitors. The Occupiers’ Liability Act of 1957 applied only to lawful visitors. However, the Occupiers’ Liability Act of 1984 was enacted specifically for trespassers like Victor. To quote a legal scholar on the history of the Occupiers’ Liability Act of 1984: The occupiers’ duty to trespassers certainly used to be said to be lower than the normal duty of care. See the view in British Railway Board v Herrington (1972) AC 877 describing such duty as "duty of humanity". In the case of British Railway Board v Herrington, the plaintiff, aged six, was electrocuted by the defendant’s railway line after crossing a gap in the fence bordering it. The fencing had been in a dilapidated condition for some time. The local station-master was aware of this and of the fact that children were in the habit of passing through, but he took no steps to remedy the situation. The House of Lords held that, although the plaintiff was a trespasser, he could recover in negligence. Lord Pearson of the House of Lords in his opinion drew attention to the changes that have taken place in the socio-economic conditions and said that the time had come to abandon the old rule and to mitigate the plight of trespassers. Today, however, the trespasser’s position must be viewed in the light of section 1 of the Occupiers’ Liability Act 1984. Note that the 1957 Act does not apply to non-visitors as most non-visitors are now covered by the Occupiers Liability Act 1984, and the most important category of non-visitors to whom the 1984 Act applies is trespassers. Thus, it is therefore quite often an important preliminary point in an occupiers liability case to first and foremost establish whether the claimant was a trespasser or not.5 It is clear that as a poacher, Victor may be considered an uninvited guest, or a trespasser. He falls squarely within the contemplation of the Occupiers’ Liability Act of 1984. Section 1(3) provides that a duty will be owed by the occupier if: (a) he is aware of the danger or has reasonable grounds to believe that it exists; (b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger; and (c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection. The duty is to take such care as is reasonable in all the circumstances of the case to see that the non-visitor does not suffer injury on the premises by reason of the danger concerned (s1(4)). Since Peter knew that he placed a trap in his premises, and he could reasonably have foreseen that such trap might harm a human being, he is arguably liable under the Occupiers’ Liability Act of 1984. Of course, in this case, it is reasonable for Peter to invoke the doctrine of Contributory Negligence. Such will have the effect of reducing the damages that Victor might receive from Peter should his suit prosper. Sam Sam may be considered a visitor, since he is one of those guests from the Historical Society that Peter entertained at the Rawley House. Hence, his claim may be discussed on two levels: as a visitor who is entitled to the duty of care by Peter established by law under the Occupiers’ Liability Act of 1957, and secondly and most importantly, as a child who is given special protection under the aforementioned act. It must be noted that Sam is a child of tender years, being only 5 years old. On the first level, according to the 1957 Act, the common duty of care is a 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 (s2(2)). An important case of recent vintage that interpreted this provision is the decision of the House of Lords in Tomlinson v Congleton Borough Council6. The case held “that it would be extremely rare for an occupier of land to be under a duty to prevent people form taking risks that were inherent in the activities that they freely chose to undertake. (It) emphasised that the duty to protect against obvious risks (or self inflicted harm) only existed in cases in which there was no genuine or informed choice, such as in the case of employees, or those with some lack of capacity such as children who would not recognise the danger. By virtue of the pronouncement in this particular case, if Sam were not a minor, that is to say, if he were an adult with complete control of his faculties, he might not have been able to receive any damages. By climbing a rotten trellis, he should have known that he was putting himself in danger and there was a risk to himself. That said, we must now go to the second level of our discussion, which concerns the fact that Sam is a child. An occupier must be prepared for children to be less careful than adults (s2(3)(a)). Therefore, if an occupier admits children to the premises the child visitor must be reasonably safe. Many cases support Sam’s claim. In the case of Pearson v Coleman Bros7 a 7 year old girl left the circus tent to look for a toilet. She walked past the lions’ cage and was mauled. The defendant was held liable. Peter may try to invoke the defense that may be found in the case of Phipps v Rochester Corp8, where the occupier was not made liable because it was the parents who were negligent. Here, no negligence may be attributed to Sam’s father. He did not anticipate that Sam would be frightened by the crashing sound resulting from the fall of Victor, and hence, had no opportunity to take the necessary precautions. As a final point, the possible defense of Peter that he had placed a sign which reads “the owner welcomes visitors to the property but cannot be held responsible for any injuries sustained to persons or property during the course of the visit.” The Occupiers’ Liability Act of 1957 states as follows: “The occupier can extend, exclude, restrict or modify the extent of his liability to visitors by agreement or otherwise, insofar as he is free to do so (s2(1)).” Another question that must be asked is if Peter is making money out of the Rawley House. Whether or not the defense of “exclusion of liability by agreement” is available to Peter is dependent on whether or not he used the Rawley House as a business. If he used it as a business, and it would seem he did since he called it a gallery, the following provisions apply: · Any attempt to exclude liability for death or personal injury caused by negligence, including breach of the common duty of care under the 1957 Act, is void (Unfair Contract Terms Act 1977, 2(1)). · Any attempt to exclude liability for property damage will be subject to the reasonableness test (Unfair Contract Terms Act 1977, s2(2)). REFERENCES OCCUPIERS LIABILITY ACT 1957 OCCUPIERS’ LIABILITY ACT 1984 UNFAIR CONTRACT TERMS ACT 1977  Wilson & Clyde Coal Co Ltd v English. [1978] AC 57 Law Reform (Contributory Negligence) Act 1945 s 1(1) Haseline v. Daw. [1941] 3 All ER 156 House of Lords in Tomlinson v Congleton Borough Council. [2003] All ER 554 Pearson v Coleman Bros. [1948] 2 KB 359 Keenan Dennis, Smith & Keenan English Law Pittman Publishing, 12th edition 1998 Cheshire Fifoot & Furmston, Law of Contract, 13th edition, Butterworths 1996 Beatson J. Ansons Law of Contract, 27th edition. OUP. 1998, P 216 Read More