In what circumstances may an owner or occupier of land be liable for accidental injuries caused to persons on (or near to) his land?
It is convenient to answer this question by considering (in logical order) the following five classes of person: (1) Landowners endangering the public at large; (2) Landlords endangering their tenants (and their tenants’ lawful visitors); (3) Occupiers of land endangering their lawful visitors; (4) Occupiers of land endangering trespassers; and (5) Employers endangering their employees.
Landowners and the public
The creation of a danger to the public (or to a section of the public) constitutes a public nuisance and, therefore, amounts to a criminal offence. Public nuisance was defined by Sir James Fitzjames Stephen as any act or omission which “obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects” (Digest of the Criminal Law, 1877). Thus a dilapidated building endangering the public highway will be a public nuisance. The duty of the landowner in such circumstances is very strict. In Wringe v Cohen [0] 1 KB 229 the Court of Appeal defined that duty as follows:
If, owing to want of repair, premises upon a highway become dangerous, and, therefore, a nuisance, and a passer-by or adjoining owner suffers damage by their collapse, the occupier, or the owner, if he has undertaken the duty of repair, is answerable whether or not he knew, or ought to have known, of the danger … On the other hand, if the nuisance is created, not by want of repair, but — for example — by the act of a trespasser, or by a secret and unobservable operation of nature, such as a subsidence under or near the foundations of the premises, neither an occupier nor an owner (responsible for repairs) is answerable, unless — with knowledge or the means of knowledge — he allows the danger to continue.
(per Atkinson J)
If the owner or occupier is subject to this duty he cannot escape liability by delegating inspection and repair to an independent contractor: Tarry v Ashton (1876) 1 QBD 314. (“That duty was imposed on him before the contractor came and after the contractor had gone”: per Widgery LJ in Salsbury v Woodland [9] 3 All ER 863.)
Because public nuisance is a crime, the primary preventative remedy is an action for an injunction brought by the Attorney-General. Alternatively, the Attorney-General may permit a private party to bring the proceedings (at the private party’s own expense) in the name of the Attorney-General. (These proceedings are then known as a “relator action”.) Since the Local Government Act 1972, local authorities have had express statutory authority to bring proceedings for an injunction without applying for the Attorney-General’s permission (section 222).
Many examples of public nuisance will also amount to a “statutory nuisance” within the meaning of section 92 of the Public Health Act 1936 (eg “premises in such a state as to be prejudicial to health or a nuisance” or “dust or effluvia caused by any trade, business, manufacture, or process, and being prejudicial to the health of, or a nuisance to, the inhabitants of the neighbourhood”). In such circumstances, the local authority will also have enforcement powers under the Public Health Act.
If a public nuisance causes loss or damage to a private party (eg to a neighbour or to a passer-by), beyond that which has been suffered by the public at large, that private party may treat the nuisance as a private nuisance and sue for damages and/or for an injunction in his own name. A victim of an accidental injury will, of course, be entitled to bring such an action (Tarry v Ashton, supra), as will a person whose property has been damaged or whose business has been obstructed or diminished by the nuisance. Thus, in Hubbard v Pitt [6] QB 142, a firm of estate agents was able to obtain an injunction against a group of political activists who were picketing the estate agents’ office and deterring customers. (This case shows that public nuisance can be committed on the public highway to the disadvantage of landowners, no less than by landowners on their land to the disadvantage of passers-by.)
If an owner or occupier of land (for his own purposes) brings on to his land “and collects and keeps there anything likely to do mischief if it escapes” (for example, a huge quantity of water), he will then become strictly liable to prevent any escape of the thing in question and, if he does not do so, he will be “prima facie answerable for all the damage which is the natural consequence of its escape” (per Blackburn J in Rylands v Fletcher (1866) LR 1 Ex 265). Although the landowner’s liability (or occupier’s liability) will not be an absolute liability — there are a few defences available to him — his liability will certainly exceed that imposed upon him by the law of negligence, and even that imposed upon him by the law of nuisance. Thus the party who has suffered loss or damage will not have to prove that the owner or the occupier of the land was negligent, nor will he have to prove that the state of affairs existing prior to the “escape” constituted an actionable nuisance in itself. But he will have to prove (1) that the defendant’s use of the land was a “non-natural” use; and (2) that there was an “escape” of the thing in question from “a place where the defendant had occupation or control to a place which is outside his occupation or control”. The first requirement was added to the dicta of Blackburn J by the House of Lords in the case of Rylands v Fletcher (per Lord Cairns: (1868) LR 3 HL 330). The effect of this requirement is to prevent “Rylands v Fletcher liability” applying to such ordinary risks as common domestic water storage, gas pipes (in a house or shop), stubble-burning, and the growth of (non-poisonous) trees. The second requirement is merely a restatement of the essential element in “Rylands v Fletcher liability”. Unless there has been an “escape” from the defendant’s land, no such liability arises. Thus, in Read v J Lyons & Co [7] AC 156 a munitions inspector was unable to rely upon Rylands v Fletcher because when a shell exploded inside a factory she was inside the factory at that time. She had not pleaded negligence against the defendant and so her claim for damages for personal injuries failed.
Landlords
A landlord may have repairing obligations for all some part of the land which he has demised to a tenant — either because he has chosen to retain that obligation or because such an obligation is implied by law. Thus sections 11-14 of the Landlord and Tenant Act 1985 (formerly sections 32-33 of the Housing Act 1961) impose a statutory obligation on landlords of dwelling-houses let for less than seven years (including periodic tenancies) to keep in repair the structure, exterior and services of the premises. Even if no statutory repairing obligation exists in a particular instance, it is still open to the courts to imply a contractual duty on the part of the landlord — as in the case of the lifts, staircases and common parts of a towerblock (Liverpool Corporation v Irwin (1976) 238 EG 879). Moreover, even if the repairing obligation — or some part of it — has been lawfully placed upon the tenant (as in the case of a business tenancy), it is often the case that the landlord reserves a power to inspect the demised premises and to carry out repairs in default of the tenant’s doing so.
Section 4 of the Defective Premises Act 1972 adds a further dimension to the maintenance or repairing obligations of a landlord, and to any powers of maintenance or repair which he has kept in reserve. Section 4(1) translates the landlord’s obligation into a statutory duty “to all persons who might reasonably be expected to be affected by defects in the state of the premises” — namely, a duty “to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect”. Section 4(2) states that this duty arises when the landlord knows, or ought to have known, of the relevant defect. The subsection also makes it clear that actual notification of a defect (given by a tenant) is one way in which this duty may arise — but it is not the only way. In those cases where the tenant has all (or some part) of the repairing obligation, and he has failed to carry out that obligation, section 4(4) states that a duty of care to third parties will nevertheless arise in the case of the landlord, from the time when he first became able to exercise his right to enter the premises and carry out works of maintenance or repair under the lease. (But, in such a case, he does not owe any duty to the tenant himself — and, if he is sued by a third party, he is entitled to claim an indemnity from the tenant if, in fact, the injury or damage was caused by the tenant’s primary default.) Section 4(6) makes it clear that the statutory duty of care imposed on a landlord also applies to any landowner who gives a “right of occupation” to another person — whether, in law, this amounts a tenancy or not. It should be noted that section 4 is restricted to claims in respect of personal injuries and damage to property — pure economic loss (eg loss of business) is not covered by the section. However, the phrase “personal injury” is defined to include “any disease or impairment of a person’s physical or mental condition” (section 6(1)). In Finch v Manchester City Council (The Times, October 11 1986) the death of a baby from broncho-pneumonia, caused by dampness in a council maisonette, was the subject of an approved settlement of £13,000 payable to the parents and to the three surviving children of the family. (The entire family had suffered from the dampness for more than three years.)
