Tort Liability for Premises

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TORT LIABILITY FOR PREMISES
1.6 INTRODUCTION
In law, the tort liability for premises explains that land owners had no liability to other
persons who were being accidently hurt or injured while passing in, through or over their
land. This section of law describes the duties imposed by the law of tort on occupiers in
relation to the maintenance and use of their premises. Occupiers have a duty to
maintain the premises safely for the benefit of third parties on or outside premises. The
occupiers also must ensure that the use of premises did not cause nuisance to other
people. It is very important for business organisation to consider the tort liability for
premises because business premises visited often by large number of people every day
and it will give a big impact to the business occupiers. So, if the business occupiers
receive a negative impact, the business activities will definitely may be potentially
hazardous.
1.7 DEFINITION OF OCCUPIERS
Basically, occupiers is a person who is in physical possession of premises or a person
who has responsibility for, and control over, the condition of premises, the activities
conducted on those premises and the persons allowed to enter those premises. From
the definition, we can generally say that occupiers of premises are the owner of the
land. The occupier can be more than one at a time. According to Wheat V Lacon in year
1966, an occupier was defined as the person in control of the premises at the time of
the accident.
Based on the case study, the occupier that is assumed was the five star hotels. The five
star hotels are the places where John was invited to celebrate his friend, Vincent
birthday party at the banquet hall in the hotel.
Case study: Wheat V Lacon in 1966
In Wheat V Lacon, the licensee and brewery owner of a pub were both held to be the
occupiers of a pub since, under the lease, the brewery was responsible for repairs and
thus controlled the state of the premises.
Case study: Harris V Birkenhead Corp in 1976
In Harris V Birkenhead Corp, the council was the occupier of a compulsorily purchased
house, which was no longer resided in by previous owner.
Based on the case scenario, the five star hotel is a premises involved. The five star
hotel is the occupiers. It is because, the five star hotel is a place that the Vincent
birthday party going to be conducted.
1.8 DEFINITION OF PREMISES
On the other hand, premises are widely defined by the Act and cover not only buildings
and open spaces but also any fixed or moveable structure which include any vessel,
vehicle or aircraft. For example, there are many types of premises. Some of the
examples include firstly, staging, scaffolding and similar structures erected on land
whether affixed to the land or not; secondly, poles, standards, pylons and wires used for
the purpose of transmission of electric power or communications or transportation of
passengers, whether or not they are used in conjunction with the supporting land;
thirdly, railway locomotives and railway cars; fourthly, ships, and lastly trailers used for,
or designed for use as, residences, shelters or offices.
Based on the case study, the premises that can be assumed were the hotel. It is
because, the hotel is the building and open spaces where John was invited to the
birthday party.
To give a clear view, this is some example of the premises as well:
Football stadium
Lift
Ladder
Ship
Hospital
House
Pharmacy
Portable caravans
This has been held to include a wide variety of things including a large excavating
machine in Bunker V Charles Brand in year 1969.
Case Study: Bunker V Charles Brand in 1969
The visitors knowledge of dangerous machine that he was to modify for the occupiers
did not absolve the occupiers of liability under section 2(4) and (5), when the visitors fell
into rollers.
Based on the scenario, the five star hotel itself is the premises as well as the occupiers.
The hotel building is the location for Vincent birthday party where large number of
people will come and visit.
1.9 DEFINITION OF VISITORS
The visitors can be describe as a person who is an entrant as of right, a person who is
lawfully present on premises by virtue of an express or implied term of a contract, any
other person whose presence on premises is lawful, or a person whose presence on
premises becomes unlawful after the person's entry on those premises and who is
taking reasonable steps to leave those premises. In addition, the visitor also is not a
trespasser.
Based on the case scenario, John is the visitors for the five star hotels as he was invited
by his friends Vincent for birthday party. John was invited to the birthday party and the
birthday party will be conducted at the banquet hall.
Case study: Greenlagh V BRB in 1969
In Greenlagh V BRB, there is no liability for injury to the visitors on bridge built under
statute for owners and occupiers of land adjoining railway nor was he a visitor.
Case study: Stone V Taffe in year 1974
The duty owed to visitor who did not know that the licensee who managed a pub had
exceeded permission to use it after 10.30pm.
Case study: McGeown V NI Housing Executive in 1994
There is no liability on occupier to maintain a public right of way.
1.10 THE OCCUPIERS LIABILITY TO PEOPLE ON THE PREMISES
The occupier's liability is defined as a liability of a person who controls land or building
in regards to damages caused to others who enter there on. The occupier must take
reasonable care to ensure that the visitor is reasonably safe for the purpose for which
the visitor is on the land. The liability applicable to an occupier of premises to visitor can
be described when the occupiers take a prevention steps in order to avoid any injuries
and damages. Hence, the liability applicable to the occupier for the visitors can be
divided into two ways which are from the negligence activities and dangerous premises.
i. Negligence activities
In negligence activities, the occupiers who carry out activities on their land without
taking reasonable care may be liable under the general principles of negligence.
Case Study: Ogwo V Taylor in 1987
The defendant negligently set the roof space on fire while using a blowtorch to burn off
paint from weatherboarding on his house. The claimant, a firefighter was injured in the
ensuing conflagration. Held: the defendant was liable as the claimant's injuries were a
reasonably foreseeable consequence of the defendant's negligent behaviour.
ii. Dangerous premises
In addition, the occupiers also must consider the liability applicable for the dangerous
premises. The occupiers have a legal duty to maintain the structure of their premises in
a reasonably safe condition. This part of law have is covered by statute. The acts
involved are Occupiers Liability Act 1957 and Occupiers Liability Act 1984. The
application of the act is subject to section 3 (4), and sections 4 and 9, this Act
determines the care that an occupier is required to show toward persons entering on the
premises in respect of dangers to them, or to their property on the premises, or to the
property on the premises of persons who have not themselves entered on the premises,
that are due to the state of the premises, or to anything done or omitted to be done on
the premises, and for which the occupier is responsible by law.
1.11 THE EXTENT OF THE OCCUPIERS DUTY OF CARE
1.11.1 DUTY OF CARE TO THE VISITORS
The occupier of premises owes a duty to take that care that in all the circumstances of
the case is reasonable to see that a person, and the person's property, on the premises,
and property on the premises of a person, whether or not that person personally enters
on the premises, will be reasonably safe in using the premises. The occupiers of the
premise must concern about the visitors for example the safety of the visitors. It is need
to be considered as the occupiers noticed that the duty of care is limited to taking
reasonable care to ensure reasonable safety and only for the purpose of that visit. It
means that, the occupiers consent to a visitor's presence is limited by the purpose of the
visit.
1.11.2 APPLICABLE OF COMMON DUTY OF CARE
The common duty of care is applied when there is a relation to:
The condition of the premises
Activities on the premises
The conduct of third parties on the premises
Case study: Simms V Leigh RFC in 1969
The visitor was injured by hitting concrete wall surrounding rugby field. The occupiers
not liable as injury foreseeable but so improbable that it was not necessary to guard
against it. Occupiers also accepted risk of playing on field complying with bye-laws.
Case study: Cunningham v Reading FC in 1991
The occupiers liable to police injured by concrete loosened from terraces. The occupiers
neglected to take precautions against clearly foreseeable acts of violent supporters.
1) Children
An occupier must be prepared for children to be less careful than adults. Therefore, if an
occupier admits children to the premises the child visitor must be reasonably safe.
Case Study: Glasgow Corp V Taylor in 1922
The seven year old died after eating poisonous berries in park. The occupiers knew of
the berries but took no precautions against children. Held: good cause of action to
proceed to trial.
Case Study: Pearson V Coleman Bros in 1948
The seven year old girl left circus tent to find toilet; walked past lions cage in separate
zoo enclosure and mauled. The occupier was liable as the prohibited area had not been
adequately marked off.
Case Study: Phipps V Rochester Corp in 1955
The occupier is not liable to boy aged 5 who fell into trench while walking across open
ground with his sister aged 7. No breach of duty occurred as reasonable parents will not
permit young children to be sent into danger without protection.
Case Study: Titchener v BRB in 1983
There is no duty owed to 15 year old walking across a railway line at night, hit by train.
The visitors knew of the line, dangers involved and the need to look out for trains.
Case Study: Jolley v Sutton LBC in 2000
The occupiers was liable to boy injured repairing boat abandoned on council land. The
occupiers knew of boat and that it was a danger.
2) Common calling
An occupier may expect that a person, in the exercise of his calling, will appreciate and
guard against any special risks ordinarily incident to it, so far as the occupier leaves him
free to do so.
Case Study: Roles v Nathan in 1963
The claimants were asphyxiated by fumes when they carried out flue repairs in a boiler
room while the boiler was alight. Held: the occupier was not liable for their deaths; their
knowledge and experience of this kind of work should have made them extinguish the
boiler before starting work.
Case Study: Salmon v Seafarer Restaurant in 1983
The occupier owed same duty of care to fireman attending premises to extinguish a fire,
as he owed to other visitors under s2 but the fireman was expected to exercise the skill
of an ordinary fireman. The occupier was liable.
3) Warnings
Where damage is caused to a visitor by a danger of which he had been warned by the
occupier, the warning is not to be treated without more, as absolving the occupier from
liability, unless in all the circumstances, it was enough to enable the visitor to be
reasonably safe.
Case Study: White v Blackmore in 1972
One notice mentioned: "Warning to the public. Motor racing is dangerous ". This
warning was effective when competitor killed whilst watching a race from the track.
Case Study: Cotton v Derbyshire Dales DC in 1994
Times LR 20 June - The occupier did not have to warn about dangerous cliffs on a high
path. The danger was obvious to visitors.
Case Study: Staples v West Dorset DC in 1995
Times LR 28 April - The occupiers did not have to warn about algae which might be
slippery.
4) Independent contractors
Where a danger is caused to a visitor by a danger due to the faulty execution of any
work of construction, maintenance or repair by an independent contractor employed by
the occupier, the occupier will not to be answerable for the danger if in all the
circumstances he acted reasonably in entrusting the work to an independent contractor
and took such steps (if any) as he reasonably ought to in order to satisfy himself that the
contractor was competent and the work was properly done.
Case Study: Haseldine v Daw in 1941
The engineer was liable to the visitor injured by crashing lift in a block of flats. The
occupier was not liable.
Case Study: Woodward v Mayor of Hastings in 1945
The school governor was liable for negligent cleaning of steps by school cleaner.
5) Defences
In defences, section 2(5) has provides that while knowledge of danger does not deprive
the visitor of a remedy, the occupier will not be liable in respect of risks willingly
accepted as his by the visitor (volenti non fit injuria).
Case Study: Burnett v BWB in 1973
The visitors injured by rope towing a barge he was on, snapping. A warning notice was
inapplicable as he was an employee. Volenti was no defence as there was no free and
voluntary agreement to the risk of injury.
Damages may be reduced, under the Law Reform (Contributory Negligence) Act 1945,
where the visitor fails to take reasonable care for his own safety.
Case Study: Revill v Newbery in 1996
This is a case involving a trespasser who was two-thirds contributory negligent.
6) Exclusion of liability
The occupier can extend, exclude, restrict or modify the extent of his liability to visitors
by agreement or otherwise, insofar as he is free to do so according to section 2(1).
Where premises are occupied for business purposes:
Any attempt to exclude liability for death or personal injury caused by negligence,
including breach of the common duty of care under the 1957 Act, is void (Unfair
Contract Terms Act 1977, 2(1).
Any attempt to exclude liability for property damage will be subject to the
reasonableness test (Unfair Contract Terms Act 1977, section 2(2).
1.12 ANSWERS ON CAN THE JOHN PARENTS TAKE AN ACTION ON
THE HOTEL
According to the case given, John was invited by his friend, Vincent for his 21st birthday
party at five star hotel. This statement have clearly state that John was the visitor and
the occupier is the five star hotel. On the other hand, John had brought together his
younger brother name as Alex to the party, and we can recognize that Alex was a
trespasser as he was not invited to the party.
The crisis occurred when while walking around the lobby, the younger brother Alex had
stumble over a flower pot and fell. The accident had caused Alex suffered minor bruises
and fractured his wrist bone. The parents of the two brothers would like to sue the hotel
management for carelessly placing the flower pot at the lobby.
After considering the factors and condition of the case given, John's parents cannot sue
the hotel management under occupier's liability. It is because, Alex was only the
trespasser at the premises. The parents cannot sue the hotel management due to
privity of contract which only involves John and hotel management. It means that, if any
accident happens to John, then the parents can sue the hotel under Occupiers Liability
Act 1957 which the statue must be obeyed by the occupiers that is the hotel to provide a
duty of care. Let say if John who suffers the minor bruises and wrist bone fractured, the
parents can sue the hotel because under the Occupiers Liability Act 1957, the occupiers
must be responsible of their visitors safety.
However, in the case given, the person who was injured is Alex. The parents cannot
sue the hotel management as Alex was only a trespasser who was not invited to the
party. Therefore, the hotel management shall not be liable for any damages and injuries
happen to trespassers. The hotel management may only be liable if the injuries and
damages happened to the visitors of the premises. This is due to the hotel management
is following the Occupiers Liability Act 1957 and Occupiers Liability Act 1984.
As the parents is still adamant to sue the hotel management, I would advise the parents
to sue the hotel management following the standard of care in negligence. As in
negligence, there is an existence of a duty to take a reasonable care. The injured visitor
will have to prove that the occupier failed to take reasonably adequate precautions to
prevent the injuries or damages. The reasonable action is determined according to the
circumstances. To relate with the case, John parents can sue the hotel management for
misplacing the flower pots at the lobby. It is because, children tend to play around at the
lobby as children usually do not bother their safety and this situation is dangerous for
them.
1.13 OCCUPIERS LIABILITY ACT 1957
Generally, an Occupiers Liability Act 1957 is the act for visitors. This act describe An
Act to amend the law of England and Wales as to the liability of occupiers and others for
injury or damage resulting to persons or goods lawfully on any land or other property
from dangers due to the state of the property or to things done or omitted to be done
there, to make provision as to the operation in relation to the Crown of laws made by the
Parliament of Northern Ireland for similar purposes or otherwise amending the law of
tort, and for purposes connected therewith. The Occupier's Liability Act 1957 imposes
upon the occupier a common law duty of care. The occupier must "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". The standard of care an occupier is expected to meet is the
standard of "a reasonable occupier", no different from the usual common law
negligence standard of care. The common duty of care is already explained above.
1.14 OCCUPIERS LIABILITY ACT 1984
Generally, an occupier Liability Act 1984 is the act for non-visitors which are
trespassers. In Occupiers Liability Act 1984, this act describes the duty of an occupier of
premises to people who do not have permission from the occupier to be on the
premises. According to Robert Addie & Sons (Colliery) Ltd v. Dumbreck in year 1929,
Lord Dunedin had give a definition of trespassers which is "A trespasser is a person
who goes upon land without invitation of any sort and whose presence is unknown to
the proprietor or, if known, is practically objected to."
Case Study: Robert Addie & Sons (Colliery) Ltd v. Dumbreck in 1929
The facts in this case are when coal miners operated a haulage system in their field
near a public road. The system used a large wheel to haul coal ashes. The opposite
end with the wheel was not visible to anyone working the electrical motor. The court
found the wheel to be dangerous and attractive to children. This haulage system was
surrounded by a fence, but it contained a number of gaps and was inadequate from
keeping children away from the wheel. Many people used the field as a shortcut and
children also played in the field. A "Trespassers will be prosecuted." sign was posted at
one gate of the field and D's servants had warned both children and adults to stay out of
the field to no avail. P's son was killed by the wheel after one of D's servants had set the
wheel in motion. The court below had awarded damages to P reasoning that D had not
taken suitable precautions to avoid accidents before activating the system.
Case Study: British Railways Board V Herrington in 1972
The claimant, a child of six, was injured when he strayed onto the railway from a public
park through broken fencing belonging to the railway, whose drivers previously had
reported trespassers on the line. Held: the occupiers was liable for the child trespasser's
injuries since it knew of the possibility of trespassers and could have avoided the risk at
small trouble and expense' (i.e by mending the fence).
Range of duty in Occupiers Liability Act 1984
The range of duty under the 1984 Act is much constricted than under the 1957 Act. An
occupier will only owe trespassers a duty to care for their safety when there is situation
which:
the danger is reasonably foreseeable, and
the presence of the trespasser is reasonably foreseeable, and
the danger is one that the occupier ought reasonably to guard against.
The occupier may be expected to offer some protection will depend on various relevant
factors, which include:
* The nature of the premises
* The nature of the danger
* The extent of the risk
* The gravity of possible injury
* The age of the trespasser
* The nature and character of entry for example a burglar, child trespasser or adult
inadvertently trespassing
* The foreseeability of the trespasser
1.15 DIFFERENCES BETWEEN OCCUPIERS LIABILITY ACT 1957 AND
OCCUPIERS LIABILITY ACT 1984
Firstly, the Occupiers Liability Act 1957 is the act that lawful duty of care to the visitors
and the Occupiers Liability Act 1984 is for a trespasser.
Secondly, the land occupier's duty to a lawful visitor is set out in the
OccupiersLiabilityAct1957 while the duty to a trespasser is in the
OccupiersLiabilityAct1984.
Thirdly, the Occupiers Liability Act 1984 only apply to personal injuries whereas in
Occupiers Liability Act 1957, this Act is not so limited due to in effect, the occupier
carries no liability for damage to a trespasser's property. However, it considers money
and it is expensive.
Fourthly, Occupiers Liability Act 1957 allows the visitor to waive his protection under the
Act by a clear disclaimer, subject to the provisions of the UnfairContractTermsAct1977.
In Occupiers Liability Act 1984, the Act makes no such statement. It is not entirely clear
why a person is allowed to waive his responsibility to lawful visitors, but not to
trespassers. This is because, the 1977 Act practiced prevent any effective waiver
anyway. On the other hand, the duty of care to a trespasser is declining that it would
unjust to allow the occupier to lower it still further by a disclaimer. This factor have
contributed to other argument which states it would be possible to get a lawful visitor to
express his agreement to the terms of a disclaimer, it is not clear how one would get a
trespasser to do so.
Legal area
1957 Act
1984 Act
Public nuisance
Private nuisance
Potential defendant
Person(s) in control of premises
Person(s) in control of premises
Owner/tenant/creator of nuisance
Owner/tenant/creator of nuisance
Potential claimant
Lawful entrants
Trespassers
Any member of public suffering special damage
Occupiers of adjacent premises
Where damage occurred
On defendant's premises
On defendant's premises
Anywhere outside defendant's premises
On premises occupied by claimant
Type of damage
Personal injuries, damage to goods
Personal injuries only
Personal injuries, damage to property, interferences with enjoyment of premises
Damage to property, interferences with enjoyment of premises, possibly personal
injuries
Cause of damage
State of premises
State of premises
State of premises and activities taking place there or obstructing highway
State of premises and activities taking place there
Nature of liability
Failure to take reasonable care of visitor's safety
Failure to take reasonable care to avoid causing injury to trespassers
Failure reasonably to foresee damage to claimant
Failure reasonably to foresee damage to claimant
Table 1: The occupier's civil legal liability for premises
1.16 CONCLUSION
As conclusion, it is very essential for business organisation to consider the elements of
torts liability for premises. Both parties should know the limitations of their contract.
Therefore, if anything happen in future, the contracting party can sue for benefit due to
injured or death. In torts liability for premises, often component in this tort is the
occupiers, premises, visitors or trespassers. In addition, there is also statute that can be
a guidance for an organisation to conduct duty of care according to the Occupiers
Liability Act 1957 which is for visitors and Occupiers Liability Act 1984 which is for non-
visitors or trespassers.


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Playground Injuries: Who Is Liable?
LISA C. JOHNSON, ESQ. - SEP 2010
Being at school can encompass a wide array of situations and places in addition to being in a
classroom: transport to and from school, walking and taking a bus, lunch, after-school programs,
including indoor and outdoor sports, summer school programs, group field trips, and of course, recess.

Risk of Injury
Even though children may not be in the classroom during recess, there is still an expectation that a
teacher or other adult will supervise the children while they are at play. Statistics found on the website
Safe Kids USA show a greater need for adult supervision of children on playgrounds at school.
Lack of supervision is associated with approximately 40% of playground injuries.
Children ages 5-9 account for more than half of all playground-related injuries.
Children play without adult supervision more often on school playgrounds.
Nearly 40% of playground injuries occur during the months of May, June, and September.

Negligence
A recent New York case outlines some important issues related to a school becoming liable for
negligence. In general, schools have a duty to adequately supervise students in their charge and can be
liable for certain foreseeable injuries related to a lack of supervision. Schools cannot ensure the safety of
their students, but should take steps to prevent harm to them, if they see that rough playing could cause
one child to injure another.
This case involved injury to a student during recess at summer school. Several third-grade boys
separated from other members of their class and threw pieces of asphalt at each other. School
regulations prohibited this behavior and the teacher(s) assigned to supervise them did not stop them. The
incident escalated, resulting in the plaintiffs leg being broken and requiring several surgeries. The
Appeals Court found that there was enough evidence for the case to move forward and that the lower
court should not have dismissed it.
In California, a Metropolitan News-Enterprise story reports on another lawsuit against a school that was
recently revived on appeal. The suit alleged negligent supervision based on an alleged sexual assault
against a seven-year-old girl by her peers. The children were attending a free after-school playground
program when a kissing club went awry. According to the article, Justice Klein wrote: [s]chools have a
special relationship to supervise children on their premises, including participants in voluntary programs,
giving rise to a duty to provide children reasonable protection.
Immunity & Discretion
However, not all school injuries result in school liability. The Union Recorder reports that in Georgia, a
teacher was not liable for injuries sustained by a student in her class. An experiment launched a bottle
into the air like a rocket. A metal pin hit a student in the eye and blinded him. The student was not
wearing protective goggles. The Court found that the teacher was protected by official immunity and that
she made a discretionary judgment call.
Bullying
Another area of concern is bullying. Across the country, the issue is being addressed more frequently. In
Maryland, the Governor declared Maryland Bullying Awareness and Prevention Week. In Massachusetts,
the Governor signed anti-bullying legislation. According to the press release, [t]he mandated reporting
requirements, anti-bullying curricula at all grade levels, and cyber-bullying components make this the
most comprehensive and one of the strictest bills in the nation.
Nobody wants to see any child harmed at school or anywhere, but accidents happen and often, the courts
hold schools liable for injuries perceived as resulting from negligence. Watching children closely and
intervening when necessary can do a lot to decrease injuries and prevent schools from any resulting
liability.
http://www.legalzoom.com/everyday-law/home-leisure/playground-injuries-who-is-liable