INTRODUCTION
This writing will provide a general
overview of Occupier’s Liability. In that respect, it shall begin by providing
the rationale behind the Tort of Occupier’s Liability, and further provide the
elements and defences of the tort
RATIONALE
Occupiers liability is essential to hold
occupiers or persons in control of property for injury or damage caused to
persons or goods lawfully on their land or property due to the state of the
property or to things done or omitted to be done there.
It is also relevant to ensure that persons
permitted to use or be on the land or property of the occupier do not go beyond
the permission given as then, the occupier cannot be held liable.
Who is an occupier?
According to Section 2(2) of the Occupiers’
Liability Act, an occupier is a person that is an occupant or is in control of
land or property.
To whom is a duty of care owed?
By virtue of Section 2(2) of the Occupiers’
Liability Act, a duty of care by an occupier is owed to persons invited or
permitted to use or be on the land or property.
More so, Common Law defines a person to
whom a duty of care is owed as one of which the law prescribes, like licensees.
What can be considered premises of the
occupier?
As prescribed under Section 2 (3) of the
Occupiers’ Liability Act, any fixed, or movable structure like vessel, vehicle
or aircraft in occupancy or control of a person are considered premises of an
occupier.
WHAT ARE THE ELEMENTS OF OCCUPIER’S
LIABILITY?
1.
There accused must be an occupier of the
premises.
2.
There must be a common duty of care that the
occupier owes to the plaintiff.
3.
The duty must be breached.
1.The accused must be an occupier of the
premises
This entails a person that is an occupant
or in control of land or property as stated under Section 2(2) of the Occupiers
Liability Act. These persons may include a tenant, landlord or landowner
according to Section 4(4) of the Occupiers Liability Act. However, in cases
involving a tenant and landlord, the question may arise as to who may be
liable. Generally, a tenant is liable as they are the one in occupancy and
immediate control of the property. The exception is in instances where the
landlord has an obligation to repair or maintain the property and defaults in
doing so, hence the damage on the plaintiff.
By virtue of Section 5 of the Occupiers
Liability Act, in instances where premises are occupied under a sub-tenancy
agreement, the landlord of the premises (whether the immediate or a superior
landlord) who has the obligation for the maintenance of the premises as put by
the sub-tenancy shall be held liable. Where there is an intermediate (mesne)
landlord or any person whom the mesne landlord's tenancy puts the like
obligation of maintenance, that person will be held liable. However, it is
pivotal to note that these persons will only be liable where the land is being
used by the occupant and plaintiff for purposes which are reasonably permitted
in the tenancy agreement.
A person may also be taken to be an
occupier if an obligation is imposed on them by a tenancy enactment, for
example a statutory tenancy, contract, among others.
2.There must be a common duty of care that
the occupier owes to the plaintiff.
Generally, a common
duty of care is only established between an occupier and their visitors based
on permission (agreement) given by the occupier. It is only then that the
visitor can be considered to be on the premises lawfully. An occupier is free
to extend, restrict, modify or exclude his duty to any visitor or visitors by
agreement. This is in accordance with Section 3(1) of the Occupiers Liability
Act. However, there are many other factors to consider when establishing a duty
of care:
1. Purpose
of invitation.
2. Degree
of care.
3. Reasonability
of warning to keep visitor safe.
4. Risks
willingly expected.
5. Involvement
of a third party.
Purpose of
invitation is essential: The common duty of care is a duty to take
reasonable care as in all circumstances of the case to see that the visitor is
safe in using the premises for the purposes of which they are invited or
permitted by the occupier as stated under Section 3 (2) of the Occupiers’
Liability Act.
Degree of care: According
to Section 3 (3) of the Occupiers’ Liability Act, the degree and want of care
would ordinarily be looked for in a visitor so that an occupier must be
prepared. For example, for children to be less careful than adults, and a
visitor to appreciate and guard against any special risks ordinarily incidental
to so far as the occupier leaves him free to do so.
Reasonability
of warning to keep visitor safe: Where damage is caused to a visitor by a
danger of which they were warned by the occupier, the warning is not to be
treated as absolving the occupier from liability, unless it was enough to
enable the visitor to be reasonably safe. Additionally, where damage is caused
to a visitor by a danger due to the faulty execution of any work by an
independent contractor employed by the occupier, the occupier is not answerable
for the danger if they had acted reasonably in entrusting the work to the
contractor believed to be competent and having done the work properly. This is
an accordance with Section 3 (4) of the Occupiers Liability Act.
Risks
willingly expected: The common duty of care does not impose on an occupier
any obligation to a visitor in respect of risks willingly accepted by the
visitor as prescribed under Section 3 (5) of the Occupiers Liability Act.
Involvement
of a third party: According to Section 4 of the Occupiers Liability Act,
where an occupier is bound by contract to permit persons who are strangers to
the contract to enter or use the premises, the duty of care which they owe to
them cannot be restricted or excluded by that contract. Therefore, an occupier
who has taken all reasonable care cannot be made answerable to strangers to the
contract for dangers caused by faulty execution of any work by persons other
than himself, his servants and persons acting under his direction and control,
unless the contract expressly provides so.
*A
stranger to the contract is a person not entitled to the benefit of the
contract as they are not a party to it, or successor by assignment or of a
party to it.
The exception to the general rule of permission for a duty to
be established involves persons who enter premises for any purpose in the
exercise of a right conferred by law. These are to be treated as permitted by
the occupier to be there for the purpose prescribed, whether they in fact have
the occupier’s permission or not as stated under Section 3 (6) of the Occupiers
Liability Act.
3.The duty must be breached.
This simply means that the occupier fails
to take reasonable care towards their visitors (plaintiff), hence resulting in
damage on the plaintiff. Breach of duty can be through the state of the
property, or things done or omitted to be done there. This was affirmed in the
case British
Railway Board v. Herrington [1972 AC 887]. In this case, a boy was electrocuted while
wondering from a playground onto a live railway line wire surrounded by a
fence. Part of the fence had been pushed down and the gap created was used as a
short cut to the park. The defendant knew about the fence, but failed to do
anything about it. The railway company did owe a duty of care to common
humanity and their failure to fix the fence to prevent damage was a breach of
their duty.
WHAT
ARE THE DEFENSES OF OCCUPIER’S LIABILITY?
1. Contributory
Negligence.
The tortfeasor can rely on the defence of
contributory negligence where the plaintiff contributed through their
negligence to the cause of damage. This is by virtue of Section 3
(5) of the Occupiers
Liability Act. It was espoused in the case of Wheat v. Leacon [1966 1 ALL ER 582] in which the defendants were brewers
owning a public house which was entrusted to a licensee to manage. This
licensee was required to sell drinks on the ground floor of the premises as
this was the licensed area. The plaintiff was staying in a private section of
the premises where she was staying as a paying guest. One day, the plaintiff
fell down a dimly-lit staircase, fractured their skull and died.
The court held that
the plaintiff was negligent because even though the staircase didn’t have
proper lighting, it was not dangerous to those using it whilst taking the
appropriate care. Therefore, the claim was dismissed. Other cases in which the
defence of contributory negligence was considered include the case of Roles
v. Nathan [1963 1 WLR 1117] and the case of Tomlinson v. Congleton Council [2003 UKHL47].
2. Warned of Danger.
According to Section 3 (4) of the Occupiers
Liability Act, where damage is caused to a visitor by a danger of which they
were warned enough by the occupier to enable the visitor to be reasonably safe,
the occupier cannot be held liable. This was espoused in the case of Roles
v. Nathan in which the plaintiffs (workers) disputed an engineer who
advised all workers to not work when fires are lightened in a central heating
place as there was carbon monoxide emission which was dangerous. They went
ahead despite being warned and died. The court held that the defendant was not
liable because a reasonable warning of the danger was given.
3. Visitor was aware of risk
By virtue of Section
3 (4) of the Occupiers Liability Act, an occupier has no obligation of care to
a visitor in respect of risks willingly accepted by the visitor. This awareness
takes away liability. This defence was espoused in the case of Phibbs
v. Ronchester [1955 1 QB 450]. In this case, parents of a child (plaintiff) were held
responsible because they did not watch over their child who fell in a hole and
injured their leg despite being aware of the risks of their child going towards
the hole. The defendant successfully relied on the defence of awareness of
risk.
4. Exclusion Clause
Where a visitor is on
the premises of an occupier by means of agreement through a contract which has
an exclusion clause covering the damage caused, the occupier can rely on the
exclusion clause as a defence from liability of damage caused to the visitor
(plaintiff) while on the premises.
CONCLUSION
In summary, Occupier’s Liability holds persons in control of property liable for injury or damage caused to persons or goods lawfully on their land or property due to the state of the property or to things done or omitted to be done there. This is because occupiers have a common duty of care to persons or goods lawfully on their land and damage caused is a breach of this duty.
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