EL/PL claims handlers course

An introduction to claims handling public liability claims

Speaker

Steven Conway | 0207 337 1037 | steven.conway@brownejacobson.com

Programme

• occupiers’ liability claims

• trespassers

• defences

Handling occupiers’ liability claims• common law

• Occupiers’ Liability Act 1957

• Occupiers’ Liability Act 1984

Common law

• lawful visitors – scope of duty depended on status – “invitees” / “licensees” / entering land

under contract

• trespassers and other unlawful visitors – no duty unless intentional or reckless injury

Occupiers’ Liability Act 1957• Section 1(1):

“ in place of the rules of the common law, to regulate 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.”

“State of the premises”

• “occupancy duty” –v- “activity duty”

• Tomlinson v Congleton BC (2003) - 1984 Act

• Grimes v Hawkins (2011) – 1957 Act

• McCarrick v Park Resorts (2012) – 1957 Act

Occupiers’ Liability Act 1957

• 3 questions to consider:

– who is an occupier under the Act?

– who is a visitor?

– what duty is owed by the occupier?

Who is an occupier - definition?• no definition in the Act

• need to look to the common law

• key issue is control of the premises

• Wheat v Lacon & Co Ltd (1966)

Who is an occupier?

“The answer in each case depends on the particular facts of the case and especially on the nature and extent of the occupation or control in fact enjoyed or exercised by the defendants over the premises”

Creed v McGeoch & Sons (1955)

Who is an occupier – landlords?• what about landlords?

• premises let to tenant

• common parts e.g. common staircase, entrance hall, roof, forecourt

Who is an occupier – other situations?• what about non-owners e.g. builders/contractors on owner’s

land?

• can there be more than one occupier?

• is the duty limited to occupation of buildings or land?• section 1(3)(a) OLA 1957:

“the obligations of a person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft”

Furmedge v Chester-Le-Street & Brouhaha & Agis (2011)• Dreamspace V

Furmedge v Chester-Le-Street & Brouhaha & Agis (2011)

• Dreamspace V

Who is an occupier?

• what about where there is no control?

• abandoned or uninhabited premises

• Harvey v Plymouth CC (2010)

Who is an occupier?

“The answer in each case depends on the particular facts of the case and especially on the nature and extent of the occupation or control in fact enjoyed or exercised by the defendants over the premises”

Creed v McGeoch & Sons (1955)

Highways

• who is the occupier of the highway?

• highway authority owes a statutory duty under s41 Highways Act 1980 to maintain the highway

Who is a visitor - definition?

• no definition in the Act

• a duty is owed to all lawful visitors

• with express or implied permission

• express: by invitation• implied: e.g. public parts of a shop or bar or restaurant • implied: e.g. short cut across a field - but note warning

signs or fences

Who is a visitor – limited permission• Section 2(2) limits the duty to a visitor for the purposes for

which he is invited or permitted by the occupier to be

there

• limited to part of the premises• Maloney v Torfaen County BC (2005)• Baldacchino v West Wittering Estate (2008)

• limited to a specific period of time

• limited as to purpose• Tomlinson v Congleton BC (2003)• Harvey v Plymouth CC (2010)

Who is a visitor – visitors as of right• “persons who enter premises for any purpose in the

exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not” - Section 2(6) OLA 1957

• Police & Criminal Evidence Act 1984 s.17

• Fire & Rescue Service Act 204 s.44(2)

Who is a visitor – public rights of way

Who is a visitor – public rights of way• “'visitor' does not include a person who crosses land in

pursuance of a public or private right of way”

• Greenhalgh v British Railways Board (1969)

• the landowner over which a public right of way passed was under no liability for negligent non-feasance to members of the public

• McGeown v Northern Ireland Housing Executive (1994)

The extent of the duty – s.2(1)“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”

Common duty of care – s2(2)

“the common duty of care is a duty 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”

“such care as in all the circumstances”• the question of “such care as in all the circumstances

of the case is reasonable” depends on assessing and balancing:

– the likelihood of injury – the seriousness of the injury which may occur– the social value of the activity which gives rise to

the risk – the cost of preventative measures (to a lesser

extent)Per Lord Hoffman in Tomlinson

How do the courts look at the duty – some recent cases • Pierce (a child) v West Sussex County Council

(2013)• Hufton v Somerset County Council (2011)• Risk v Rose Bruford College (2013)• Driver v Dover Roman Painted House (2014)

Examples of liability

• creating danger by polishing a floor too highly• failing to light stairs adequately• leaving a trench unguarded• failing to stack cargo properly• failing to make safe slippery surfaces

Examples of non-liability

• hotel guest who leaned out of a window and fell

• motel customer who climbed on to a log and fell off

• wheelchair user who steered down a flight of stairs in a bar

What duty is owed by the occupier?- Section 2(3)(a)• an occupier must be prepared for children to be

less careful than adults• Jolley v Sutton London Borough Council (2000)

• can expect a reasonable degree of parental supervision and control • Phipps v Rochester Corp (1995)• Bourne Leisure Ltd v Marsden (2009)

What duty is owed by the occupier?- Section 2(3)(b)• 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

• e.g. window cleaners, chimney sweeps

• Hughes v Midnight Theatre Co (1998)

What duty is owed by the occupier?- Section 2(4)(a)• a warning may absolve an occupier from liability

if, in all the circumstances it was enough to enable the visitor to be reasonably safe

• business occupiers – UCTA 1977 – can’t exclude death or personal injury

• Rae v Mars (UK) Ltd (1989)

What duty is owed by the occupier?- Section 2(4)(b)“where damage is caused to a visitor by a danger due to the

faultyexecution of any work of construction, maintenance or repair

by an independent contractor employed by the occupier, the

occupier is not to be treated without more as answerable for the danger if

in all the circumstances he had acted reasonably in entrusting the

work to an independent contractor and had taken such steps (if any)

as he reasonably ought in order to satisfy himself that the

contractor was competent and that the work had been properly done.”

Independent contractors

For an occupier to discharge their duty of care: • act reasonably in selecting and entrusting work to the

independent contractor• take reasonable steps, if possible, to supervise the carrying

out of the work• use reasonable care to check the work has been done

properly

Independent contractor cases

• Gwilliam v West Hertfordshire Hospital NHS Trust (2002)

• Naylor v Payling (2004)

Defences - Section 2(5)

• volenti non fit injuria – common law concept

• no obligation to a visitor in respect of risks willingly accepted by the visitor

• Ratcliffe v McConnell (1998)• Geary v JD Weatherspoon (2011)

Handling trespassers claims

• Occupiers’ Liability Act 1984

“whether any duty is owed by an occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them” section 1(a)

The Occupiers’ Liability Act 1984• the same 3 questions need to be considered:

– who is an occupier?

– when is a duty owed (a duty is not automatically owed to a trespasser)?

– what duty is owed?

Who is an occupier – section 1(2)“persons who are to be treated as an occupier of any premises and as his visitors are(a) any person who owes in relation to the

premises the duty referred to in section 2 of the Occupiers’ Liability Act 1957 (the common duty of care), and(b) those who are his visitors for the

purposes of that duty”

When is a duty owed – section 1(3)• a duty is owed where the occupier:

(a) is aware of the danger or has reasonable grounds to believeit exists;

(b) knows or has reasonable grounds to believe that the other is in the vicinity of the danger … or may come in to the vicinity of the danger; and

(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection

What duty is owed – section 1(4)?• defines the duty as:

“…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.”

What duty is owed – section 1(4)?• objective standard

• balance between the seriousness of the danger and the type of trespasser who is likely to come

• Tomlinson v Congleton Borough Council (2003)

• Brereton Heath Local Nature Reserve, Congleton

Tomlinson v Congleton Borough Council (2003)

'I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hand-gliding or dive in pools or lakes that is their affair. Of course a landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalistic view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions…... but the law does not require him to do so'

Lord Hoffman

How the courts interpret the duty • Ratcliffe v McConnell (1998)• Donoghue v Folkestone Properties (2003)• Young v Kent County Council (2005)• Keown v Coventry Healthcare NHS Trust

(2006)• Siddorn v Patel (2007)

Possible defences? - section 1(5)

• difference with OLA 1957

• Section 1(5): warnings“any duty owed … may be discharged by taking such steps as are reasonable … to give warning of the danger concerned or to discourage persons from incurring the risk”

Possible defence…

• Section 1(6): risks willingly accepted

“no duty is owed … to any person in respect of risks willingly accepted … by that person”

• Ratcliffe v McConnell (1999)

s.1 Compensation Act 2006

“a court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps … have regard to whether a requirement to take those steps might:

– prevent a desirable activity from being undertaken at all – discourage persons from undertaking functions in

connection with a desirable activity”

• Sutton v Syston Rugby Club (2011)

speaker

talk to us…Steven Conway | 020 7337 1037 | steven.conway@brownejacobson.com

77 Gracechurch Street, London, EC3V 0AS