Chapter 7 Guidance on answering the questions in the book

Question 1

Explain the factors taken into account by the courts to determine if an occupier of premises has breached the common duty of care owed to a lawful entrant.

Outline

• The Occupiers’ Liability Act 1957 s 1(1) regulates the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them. Section 2(1) provides that an occupier of premises owes the same duty, the ‘common duty of care’, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. However, an exclusion notice may be subject to the Unfair Contract Terms Act 1977 or the Consumer Rights Act 2015.
• Section 2(2) provides that the common duty of care is a duty to take such care as in all the circumstances of the case it 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.
• The nature of the duty owed by an occupier to his visitors is the same as that in common law negligence. The fundamental principle is that, depending on the magnitude and seriousness of the risk and the costs in taking precautions, a defendant who fails to take precautions that a reasonable person would take will be liable. The Act specifically provides for two categories of visitor: children and skilled visitors.
• Children: an occupier must be prepared for children to be less careful than adults s2(3)(a) The extent of the occupier’s liability for children is a question of fact and degree and much depends on the particular circumstances: Phipps v Rochester Corp (1955); Simkiss v Rhondda BC (1983); Bourne Leisure Ltd v Marsden (2009)
• Skilled visitors: s 2(3)(b) of the 1957 Act provides that an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incidental to it Roles v Nathan (1963).
• Warning: the occupier’s duty under s 2(2) is to take such care as is reasonable in all the circumstances of the case to see that the visitor will be reasonably safe in using the premises (this does not mean that the premises must be safe). The duty may be discharged if the occupier provides a warning 2(4)(a) Roles v Nathan but a warning notice is not enough unless in all the circumstances it enables the visitor to be reasonably safe Rae v Mars (UK) Ltd (1990). If the danger is obvious, and the visitor is able to appreciate it, there is no need for a warning sign Staples v West Dorset District Council (1995. Occupiers are not under a duty to protect, or even to warn, against obvious dangers Edwards v London Borough of Sutton(2016)

Question 2

In respect of the following incidents consider the principal issues of law which will arise under the Occupiers’ Liability Acts of 1957 and 1984 if the injured parties attempt to recover their losses.

(a) Skylon Hotel commenced a major refurbishment of the hotel and put up a large notice at the entrance warning guests to take care on the premises. Ria was checking her email on the guest computer in the hotel lobby when Daniel, her 2-year-old son, strayed away. Daniel was discovered soon afterwards lying badly injured at the bottom of the hotel swimming pool, which had been emptied for maintenance.

(b) Ronan, the electrician, forgot to check that the main power supply was switched off before he started work on replacing the electric cables. As Ronan removed the first electric cable, he suffered a severe electric shock because the cable had perforated.

(c) James, a freelance gardener working at the hotel, began to feel unwell. He decided to have a sleep in one of the Skylon’s unoccupied rooms so he waited until the receptionist was busy checking in new guests to sneak upstairs into one of the bedrooms. The vibration of the drills on the construction work caused the ceiling in the room to collapse and cause James a broken arm.

(d) Kathryn, a salesperson, misread her Satnav and mistakenly drove her car into the Skylon car park. She ignored the large ‘No Parking’ sign around the outside construction area as she stopped to make a phone call. As Kathryn was making the call a piece of negligently erected scaffolding fell onto her car and smashed the windscreen.

Outline

Daniel

Section 2(3)(a) of the 1957 Act provides that the occupier must be prepared for children to be less careful than adults. Since Daniel is a young child the court would consider whether his parents had taken proper steps to supervise him and prevent him wandering without supervision. Phipps v Rochester Corp (1955); Simkiss v Rhondda BC (1983); Bourne Leisure Ltd v Marsden (2009). An occupier is entitled to assume that parents will take reasonable care for their children’s safety. In Bourne Leisure Bourne the court noted that accidents may and do happen to young children without anyone being at fault.

Ronan

In respect of skilled visitors, s 2(3)(b) of the 1957 Act provides that an occupier may expect that an electrician will appreciate and guard against the risk of electric shock by failing to switch off the electric power supply cable before commencing his work Roles v Nathan (1963)

James

James sneaked into the hotel bedroom, which means that he did not enter as a lawful visitor. His claim, if any, will be under to the Occupiers’ Liability Act section 1(3). However, under this section a duty is not automatically owed to a trespasser. To succeed under its provisions James would need to show that: Skylon Hotel was aware of the danger in the ceiling or had reasonable grounds to believe that it existed; that the Hotel knew or had reasonable grounds to believe that James was in or might come into the vicinity of the danger concerned and that risk was one against which, in all the circumstances of the case, the Hotel may reasonably be expected to offer him some protection.

Kathryn

Kathryn also seems to be a person ‘other than a visitor’ as she ignored the signs prohibiting stopping in the car park so any claim would be under to the Occupiers’ Liability Act section 1(3). Her claim would not be based on personal injury. The damage she suffered, damage to property, is not covered by the Act. The duty under the 1984 Act is in respect of personal injury only. No duty is owed to a trespasser for property damage. Section 1(8) of the 1984 Act provides that there is no liability ‘in respect of any loss of or damage to property’.