Exploring Occupiers Liability in a Case Study

Introduction

Different forms of tort liability arise subject to the circumstances surrounding an incident. This applies to occupier’s liability. An occupier is a person or an entity that exercises sufficient control over the concerned premises. As such, they owe a duty of care towards any person, permitted or not permitted, within that premises to ensure their safety while they are within the premises. The current cases involves determining the following issues: i) whether or not Sandwell Town Cricket Club (“Sandwell”) would assume occupier’s liability for the act or omission of independent contractor, Lectroplumb which caused harm to Jimmy.; ii) whether the duty of care by Sandwell, as an ooccupier would extend to Narinder, who entered the toiler unauthorised; and iii) whether Sandwell Town had a special duty of care towards Jimmy being a child or not as he was a trespasser.

Issues and Relevant laws

Occupier’s liability concerns the liability of the occupier of the land or premises for injury, loss or damage to claimants. Such liability can be either a liability for loss or injury caused by the state of the premises, or liability by a person other than the occupier of the land for defects in the premises. The Occupier’s Liability Act 1957, concerning duty of care towards all lawful visitors and the Occupier’s Liability Act 1984 concerning duty of care towards people other than lawful visitors, including trespassers are the two statutes that govern occupier’s liability. In regard to injury to Jimmy, the liability for loss or injury by a person other than the occupier of the land for defects in the premises will apply. The Occupier’s Liability Act 1957 will apply as Sandwell is the occupier which owed a duty of care towards its lawful visitors, including Jimmy. In regard to Narinder, the liability for loss or injury caused by the state of the premises will apply. The Occupier’s Liability Act 1984 will apply as Narinder unlawfully entered the toilet. In regard to Paul, the Occupier’s Liability Act 1984 will apply as Paul was an unlawful visitor. However, Sandwell owes a special a special duty of care towards Jimmy.

When does an occupiers assume liability towards a visitor, authorised or non-authorised?

TAn occupier exercises sufficient control of the premises. The degree of control exercised determines whether a person or an entity is an occupier. Lord Denning ruled that whether or not there is a sufficient degree of control depends on whether there is a failure to use reasonable care that has caused the injury to a visitor.

Liability towards lawful visitors

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1. S.K. Dua and C Turner, Unlocking Torts (Taylor & Francis 2019).
2. S.K. Dua and C Turner, Unlocking Torts (Taylor & Francis 2019).
3. Wheat v E Lacon & Co Ltd [1966] AC 522.
4. Harris v Birkenhead Corp [1976] 1 WLR 279
Section 2(1) of Act of 1957 imposes on the occupier a duty of care towards all visitors they have invited or permitted in all the circumstances of the case. Section 2(2) requires them to ensure that such visitors are reasonably safe in using the premises for the purposes invited or permitted. Thus, this Act of 1957 governs all the risks as long as the visitors are in the occupier’s premises. In respect to a contract work occurring on the premises by an independent contractor engaged by the occupier, if a damage was caused then it must be determined whether or not that was caused by a danger emanating from the faulty execution of the work undertaken by the contractor. Thus, in cases where the cause of injury, loss or damage is due to the negligence of an independent contractor hired by the occupier, the occupier may escape liability. Section 2(4)(b) supports this principle. For imposing the liability on the contractor, it must be reasonable for the occupier for the occupier to have entrusted the independent contractor the work. This depends on the character of the occupier and on the nature of the work done. In Haseldine v Daw & Son Ltd, the occupier was not liable for the death caused by the negligent repair of a lift by the independent contractors as such repair is a highly specialist activity that could not have been expected from the occupier. The Defective Premises Act 1972, S1 imposes strict liability on the person “taking on work for or in connection with the provision of a dwelling” to ensure that the work is completed in a workmanlike or professional manner with use of proper materials and that the work completed is fit for the habitation. This Act of 1972 thus imposes liability on a non-occupier such as the independent contractor who has undertaken work in the premises. Occupier has discharged its duty by hiring the competent contractor. The occupier must have ensured that the contract hired is competent carry out the work. This is depends on the character of the occupier and the work to be carried out. Adequate check may not be possible on the part of the householder, which may be otherwise if the character of the occupier is different. In Fergussan v Welsh, the local authority was held liable for the unsafe working systems employed by the demolition contractor. Further, the occupier should have inspected the work if it was in fact possible. If the work is more complex and technical, the occupier is less expected to inspect the work. In Haseldine V CA Daw, & Son Ltd, it was ruled that occupier is not necessarily expected to check the work of a technical nature. If the work is more complex, it is more reasonable to entrust the work to the contractor.

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5. K Horsey and W Rackle, Tort Law (Oxford University Press 2013) 327.
6. S.K. Dua and C Turner, Unlocking Torts (Taylor & Francis 2019).
7. Ibid.
8. Haseldine v Daw & Son Ltd [1941] 2 KB 343.
9. S.I. Strong and L Williams, Complete Tort Law: Text, Cases, & Materials (Oxford University Press 2011) 190.
10. S.K. Dua and C Turner, Unlocking Torts (Taylor & Francis 2019).
11. Ibid.
12. Fergussan v Welsh [1987] 3 All ER 77
13. S.K. Dua and C Turner, Unlocking Torts (Taylor & Francis 2019).
14. Haseldine V CA Daw, & Son Ltd [1941] 2 KB 343.

Child visitor

In case concerning child visitor, the occupier incurs a larger sense of duty towards such visitors, who do not have informed judgment. The occupier must expect the children to be less careful than adults. Thus, Section 2(3)(a) of the Act of 1957 provides that the courts takes into account the age of the child and the expected level of his understanding. The occupier must do more to protect the children from dangers on their land than what they might have to do to protect the adult visitors. A warning may be enough for adults, but fencing-off a danger may be necessary from a child. In some case, children often come with adult visitors and so, the adults must be warned to protect the children. In some case, an occupier may also reasonably expect that the parents or guardians would take adequate care of child visitors. If the occupier has made their premises reasonably safe for the child visitors, it should be sufficient for them to have discharged their duty to the child visitor. Section 2(4)(a) of Act of 1957 provides that a warning given to the visitor will not absolve occupier’s liability if it was not enough to enable the visitor to be reasonably safe. In White, it was ruled that the warning must cover the danger that in fact arises. The legal provisions aim to strike a balance between responsibilities of parents and occupiers in respect to preventing harm from befalling children.

Liability towards unlawful visitors

Section 1 of the Act of 1984 provides that the occupier has a duty of care towards a person other than a visitor. Such duty arises only if they know about the danger or if they possess reasonable grounds to believe that the danger exists. The occupier must know or has ground to believe that the visitor is in the vicinity of the danger. Such duty exists irrespective of whether the visitor is not authorised to be in vicinity of the danger. Thus, risk that attracts reasonably expectation from the occupier to offer protection, qualifies a duty of care from the occupier. Section 1(1) of the Act of 1984 restricts the risk to those arising out of the state of the premises. In Driver, the High Court held that under the Act of 1984, the occupier owes less stringent duty of care towards a trespasser. In this case, the claimant fell into a well-lit moat while attempting to relieve herself at the other side of the wall surrounding the house. The occupier does not incur any liability since the danger was not hidden and that the incident happened outside visiting hours.

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15. Jolley v Sutton [2000] 1 WLR 1082.
16. NJ McBride and R Bagshaw, Tort Law (Pearson Education Limited 2018).
17. Phipps v. Rochester Corporation [1955] 1 QB 450.
18. White v Blackmore 3 WLR 296.
19. NJ McBride and R Bagshaw, Tort Law (Pearson Education Limited 2018).
20. Driver v The Painted House Trust [2014] QBD.

The duty or liability cannot be passed on to the unlawful visitor. As per Section 1(3), there is a reasonable expectation from the occupier to provide some protection in all the circumstances of the case. Section 1(4) of the Act of 1984 requires the occupier to take reasonable care in all the circumstances of the case and ensure the visitor is safe from the danger concerned. As per Section 1(5), the duty, in an appropriate case, can be discharged by taking reasonable steps in all the circumstances of the case to warn the visitors of the danger concerned or to discourage visitors from incurring the risk. Trespassers may have certain human rights that must be respected and protected. The aim of the Act of 1984 is protect persons entering land, whether trespassing or not, from dangers due to the condition of the premises.

Application to the rules to the case

Liability to lawful visitor, Jimmy under the Act of 1957.

As per Section 2 of Act of 1957, Sandwell must have taken all necessary measure to ensure reasonable safety to all the visitors, including Jimmy while they are there for the match. Such safety should have concerned all the risks as long as Jimmy was in Sandwell. However, this case concerned the injury was caused by shower control recently installed by Lectroplumb, an independent contractor. In this case, the electrocution and the burn on Jimmy’s hand were caused due to the subsequent his hand is badly burned when he turns on the shower control. Applying Section 2(4)(b), it could not have been expected out of Sandwell to have expertise on the installation of the shower control, which is technical in nature. Thus, Sandwell had discharged its duty when it hired Lectroplumb. As the work was technical in nature, it could not be expected to have conducted an adequate check on the competency of Lectroplumb, which was otherwise the case in Fergussan where the local authority was held liable. Further, Sandwell could not have been expected to inspect the work because of the speciall expertise needed for installing the shower control. As such and according to Haseldine, because of the complexity of the installation, no expectation could be imposed on Sandwell. Thus, Lectroplumb was an independent contractor who completed the installation work. The injury was caused because of its faulty execution of the work. Sandwell, thus, cannot be liable, but Lectroplumb is liable as per Section 2(4)(b). Strict liability is also imposed by the Act of 1972, s1 on Sandwell for on Sandwell for not delivering a workmanlike or professional work by installing improper shower control that was not fit for use.

Liability towards unlawful visitor, Narinder under Act of 1984

21. James Marson and Katy Ferris, Business Law (Oxford University Press 2015) 305

Narinder was not permitted to enter the toilet, which was meant for Sandwell Town ground staff. This does not mean that Sandwell does not owe his a duty of care. According to Section 1 of the Act of 1984, Sandwell has a duty to care towards Narinder. In this case, the room was dark as the light bulb had not been replaced. Sandwell must be having knowing about this that if the room is left dark it causes potential danger to anyone entering the premises. The risk of exposing to such danger attracts a reasonably expectation from Sandwell to offer protection to the premises in question. Sandwell must have taken reasonable care and reasonable steps in all the circumstances of the case and to warn any visitors. However, in this case, the one question that could make Sandwell escape all liability towards Narinder is how would have Sandwell known or belief that Narinder would be in vicinity of the dark room and the danger it potentially posed? Narinder should have not gone to the room that is specifically authorised for Sandwell’s ground staff. In such case, Sandwell would not have known or believed that Narinder or any other player for that matter would be in the vicinity of the danger. This ground may help escape Sandwell from occupier’s liability towards Narinder.

Liability towards the child, Paul and unauthorised visitor

Paul is just seven years old and so may not be able to make informed judgement about the wet floor. Considering this factor, Sandwell has a larger sense of duty towards Paul as being a child, he would be less careful than adults. In this case, Sandwell should have reasonably expected the players would be accompanied by their children during the match. However, it did not do more to protect Paul from dangers than what they did for the players or other adult visitors (as per Section 2 of the Act of 1957). Sandwell should have atleast made the floor reasonably safe for child visitors or any visitors in this case by putting up a warning, for example a sign that says “wet floor”, to discharge their duty to the child visitors like Paul. Alternatively, knowing that children accompany the player parent, Sandwell could have warned the parents, including Jimmy about the risk emanating from the wet floor. Such warnings might have been enough to protect Paul from the danger. Such sufficient warnings, needed as per Section 2(4)(a) of Act of 1957, were not given in this case. Hence, Sandwell will be liable towards Paul. Even if Paul was an unauthorised visitor to the dressing room, Sandwell did not take reasonable care and steps in all the circumstances of the case, as required by s1 of the Act of 1984, to warn visitors, including Paul of the risk from the wet floor. In this case, the duty or liability cannot be passed on to Paul or Jimmy. The danger is due to the condition of the premises. Thus, the Act of 1984 offers protection to Paul from such dangers.



Conclusion

The cases in question highlight different forms of tort liability due to the varied circumstances provided. Provision of the Act of 1957 and Act of 1972 apply to Jimmy’s case. Since the installation of the shower control was technical in nature, Lectroplumb will be liable for the injury caused to Jimmy as Sandwell could not be expected to check on competency of Lectroplumb or its work and nothing more than hiring Lectroplumb. In case of Narinder, applying Section 1 of the Act of 1984, the fact that Sandwell would not have known or believed that Narinder would be in the vicinity of the room will not make Sandwell liable. As such duty to care towards unlawful visitor will not apply here. Paul was an unlawful visitor. He deserved to have been warned about the wet floor and being a child deserved even more protection. Sandwell will be liable.

Legislation

The Defective Premises Act 1972 The Occupier’s Liability Act 1957 The Occupier’s Liability Act 1984

Cases

Driver v The Painted House Trust [2014] QBD Fergussan v Welsh [1987] 3 All ER 77 Haseldine v Daw & Son Ltd [1941] 2 KB 343 Harris v Birkenhead Corp [1976] 1 WLR 279 Jolley v Sutton [2000] 1 WLR 1082 Phipps v. Rochester Corporation [1955] 1 QB 450 Wheat v E Lacon & Co Ltd [1966] AC 522 White v Blackmore 3 WLR 296

Bibliography

Books

Dua S.K. and C Turner, Unlocking Torts (Taylor & Francis 2019) Horsey K and W Rackle, Tort Law (Oxford University Press 2013) Marson J and Katy Ferris, Business Law (Oxford University Press 2015) McBride NJ and R Bagshaw, Tort Law (Pearson Education Limited 2018) Strong S.I and L Williams, Complete Tort Law: Text, Cases, & Materials (Oxford University Press 2011)

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