Occupiers’ liability Domestic and commercial occupiers can be liable to visitors to their land. Helen Chambers examines the duties owed and the precautions to take
Kylie Grimes was 18 years old when a diving accident at a friend’s party caused her to suffer life-changing injuries. A competent swimmer, she dived into the dimly-lit indoor pool, hitting her head on the pool floor.
Grimes lost her £6m action against the homeowner, David Hawkins: see Grimes v Hawkins [2011] EWHC 2004 (QB). In addition to negligence, she claimed that Hawkins had breached the common duty of care owed to her under the Occupiers’ Liability Act 1957.
Thirlwell J, dismissing the claim, said that this was “an unremarkable swimming pool, on domestic premises where the claimant, an adult, chose to do something that involved an obvious risk”. Although the outcome of the hearing was not unexpected, it did reinforce the developing trend of self-accountability.
The case serves as a timely reminder that occupiers, both commercial and domestic, owe certain duties to those who go onto their land, whether or not invited.
It is vital for landowners to have a real appreciation of actual or potential risks on their land and a strategy for dealing with them. If parties think a suitable strategy need extend only to erecting warning signs where possible, read on.
Duties owed by occupiers of land are divided into two categories: lawful visitors are governed by the Occupiers’ LiabilityAct 1957, while “others” (trespassers), are covered by the Occupiers’ Liability Act 1984.
The status of a visitor, and therefore the duties owed, can change while he is on an occupier’s land, depending on the purpose of the visit and whether he goes beyond or strays from the purpose of his implied or express licence to be there.
This is illustrated in the often quoted judgment of Scrutton LJ in The Calgarth [1927] P 93: “when you invite a person into your house to use the staircase, you do not invite him to slide down the banisters” a point reflected in reality in Geary v JD Wetherspoon plc [2011] EWHC 1506 (QB) [2011] PLSCS 154. The court held that when Geary slid down a banister in the defendant’s premises, falling and suffering injuries causing tetraplegia, the defendant owed her no duty. She chose to do something thatwas inherently dangerous and accepted the risk of injury.
Who is an occupier?
Curiously, the answer does not lie in either the 1957 or 1984 Acts. According to Wheat v E Lacon& Co Ltd [1966] AC 552, an occupier is anyone who has “a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises”. The result of this broad definition is that there may be more than one occupier of a piece of land at any one time.
Section 2(2) of the 1957 Act states that the duty owed by an occupier to its lawful visitors is “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 by the occupier to be there”.
As would be expected, the duty of care owed to a trespasser under the 1984 Act is lower than that owed to a visitor.
Section 1(4) of the 1984 Act says that an occupier’s duty to a trespasser is “to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned”. The duty will arise only if the occupier: (i) is aware of the danger or has reasonable grounds to believe that it exists (ii) has knowledge or foresight of the presence of the trespasser and (iii) bearing in mind all the circumstances of the case, he might reasonably be expected to afford the trespasser some protection.
Accountability and choices
The government has shown a real drive to force accountability for our own choices and actions and to discourage a compensation culture a wish set out in force in Lord Young’s Common Sense, Common Safety report. However, will the courts follow suit? Recent cases show that, despite health and safety myths, the judiciary has long been an advocate of this approach, illustrating on numerous occasions that people should accept responsibility for the risks they take.
In Tomlinson v Congleton Borough Council [2003] UKHL 47; [2003] 3 WLR 705, the House of Lords refusedto hold the council liable under either of the Acts for injuries caused to the claimant when he dived into a shallow lake in a park owned by the council an action that caused serious injury. Signs in the park prohibited swimming, warning “Dangerous Water – No Swimming”.
Lord Hoffman disagreed with the Court of Appeal’s view that a general duty arose to protect against obvious risks or self-inflicted harm. The claimant had engaged in an inherently risky activity and the danger was not attributable to the state of the premises.
Although sympathetic to the claimant, the judgment may be considered a victory for common sense. Lord Scott said that the claimant:
“was a high spirited young man simply sporting about in the water with his friendsAnd why not? And why should the council be discouraged by the law of tort from providing facilities for young men and young women to enjoy themselves in this way? Of course there is some risk of accidents arising out of the joie de vivre of the young. But that is no reason for imposing a grey and dull safety regime on everyone.”
Tomlinson was cited and approved in Grimes.
Similarly, in Ratcliff v McConnell [1999] 1 WLR 670, a student dived into an unsupervised college swimming pool after hours. The court held that no liability arose under the 1984 Act the college had taken precautions to prevent such types of activities, including erecting warning notices.
In
Although some cases support the move towards self-accountability, that is not to say that, in an appropriate case, an occupier will be absolved from taking reasonable steps to ensure the safety of members of the public. In Furmedge v Chester-Le-Street District Council [2011] EWHC 1226 (QB); [2011] PLSCS 131, the organisers of an event on the council’s land were held liable as occupiers of a large inflatable sculpture under the 1957 Actfor failing to carry out an adequate risk assessment or even appreciate the risk of injury to people.
Each case shows a willingness to embrace the balancing act to which Lord Hoffman referred in Tomlinson. Even if a duty is owed, when considering whether it is reasonable for liability to arise, one should balance the potential for injury to occur and the seriousness of any injury, against the social value of the relevant activity and the cost of preventive measures. The overwhelming result of this exercise appears to be that, except where there is no genuine and informed choice, such as employees or a lack of capacity, such as young children, people should accept responsibility for the risks they take and no duty arises statutory or otherwise, to protect people from obvious risk.
Why this matters |
It should be borne in mind that there may be more than one occupier at any given time a landlord and tenant may both be occupiers at the same time, or a landlord that retains control or responsibility for, say, common parts of a building will be an occupier of those parts for the purposes of the Acts. Similarly, as in Furmedge, those who organise functions or activities on others land may also owe duties to the public. Landowners should regularly review their properties. Although Thirlwell J dismissed the claim in Grimes, the outcome may have been different had there been “some hidden or unexpected hazard”, with no warning. Tomlinson and Grimes and Lord Young’s report reinforce the trend of self-accountability for a person’s own actions, but any assessment involving a question of reasonableness, such as liability under the Acts, is by its nature unpredictable. Each case is determined on its own facts, but common elements run throughout, that may assist those falling into the category of an occupier. As demonstrated in cases such as Bottomley v Todmorden Cricket Club [2003] EWCA Civ 1525; [2004] PIQR P18, where an occupier invites people onto land to participate in activities, judicial decision favours those occupiers that have risk-assessed and dealt with any danger in a reasonable way. If external contractors are involved, although no duty to inspect their public liability insurance certificate, it would be prudent to do so. Section 2(4)(a) of the 1957 Act contains a proviso in respect of warning notices, whereas the 1984 Act is silent on the point. However, case law supports the view that occupiers that demonstrate an appreciation of risks on their land and take action, such as displaying warning signs, will be in the best position to discharge their duties to the public. Regard should be had to children and the “allurement principle”: see Jolley v Sutton London Borough Council [2000] 3 All ER 409. Although it may be reasonable for an occupier to expect parents to control their children, it is not always possible for children to be accompanied, so the greater the allurement, the more care should be taken to deter young people. |
Further reading |
Clerk & Lindsell on Torts Dugdale A Professor and Jones M Professor, (20th ed) Sweet & Maxwell Winfield and Jolowicz on Tort Rogers WVH (18th ed) Sweet & Maxwell |
Helen Chambers is a solicitor at Eversheds LLP
