Common duty of care and its breach

Introduction

Occupiers' liability represents a significant aspect of tort law, specifically governing the duties owed by those in control of premises to individuals who enter those premises. Under the Occupiers' Liability Act 1957 and its subsequent amendment in 1984, the concept of the "common duty of care" is established, requiring occupiers to take reasonable care to ensure the safety of lawful visitors and, under certain conditions, even trespassers. The core principles of this duty revolve around reasonable foreseeability of harm, the standard of care owed, and the circumstances under which a breach occurs. Understanding these requirements is fundamental for comprehending how liability is assigned in cases of injury or damage arising from the state of the premises.

Defining 'Occupier'

The term 'occupier' is not explicitly defined within the Occupiers' Liability Act 1957, leaving its interpretation to the courts. Generally, an occupier is any person who has sufficient control over premises to the extent that they ought to realize that any failure on their part to use care may result in injury to a person coming lawfully onto the premises. In the landmark case of Wheat v E Lacon & Co Ltd [1966], the court held that both the owner of a pub and the manager could be considered occupiers, emphasizing that control, rather than ownership, is the determining factor.

Picture a landlord who rents out a flat but retains control over the common areas like stairwells and hallways. Both the landlord and the tenant might be considered occupiers of different parts of the premises, each bearing responsibility for the safety of visitors within their respective areas of control. This shared occupancy illustrates how multiple parties can simultaneously owe a duty of care based on their level of authority.

The Common Duty of Care

Under Section 2(2) of the Occupiers' Liability Act 1957, the common duty of care is defined as the obligation to "take such care as in all the circumstances... 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."

This duty emphasizes:

1. Reasonableness: The occupier is expected to act as a reasonable person would in similar circumstances. Absolute safety is not required, but reasonable precautions must be taken to prevent harm.

2. Purpose of Visit: The duty of care is tailored to the visitor's purpose on the premises. For example, a customer in a shop expects safe aisles free from slipping hazards, whereas a construction worker may need to deal with more natural risks.

3. Foreseeability of Harm: Occupiers must anticipate potential hazards that could reasonably cause harm to visitors.

Consider a shop owner who knows that a spill has occurred in an aisle but fails to clean it up or put out a warning sign. If a customer slips and is injured, the shop owner may have breached the common duty of care by not taking reasonable steps to prevent foreseeable harm.

Standards for Different Categories of Visitors

The Occupiers' Liability Act 1957 acknowledges that the standard of care may vary depending on the type of visitor. Occupiers must adjust their precautions accordingly to ensure safety.

Children as Visitors

Section 2(3)(a) of the Act stipulates that "an occupier must be prepared for children to be less careful than adults." This heightened duty recognizes that children may not appreciate dangers that are obvious to adults.

Think of a playground where the equipment is in disrepair. A child might not recognize the risk posed by a broken swing. In Glasgow Corporation v Taylor [1922], a child was fatally poisoned after eating attractive but poisonous berries in a public park. The court held that the occupier should have anticipated that children might be enticed by the berries and taken steps to prevent access, such as fencing off the area.

Skilled Visitors

Under Section 2(3)(b), the 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 incident to it." This means that professionals are expected to take care regarding risks related to their proficiency.

For instance, an electrician working on a property should be aware of the dangers associated with electrical wiring. In Roles v Nathan [1963], chimney sweeps ignored warnings about dangerous fumes and died as a result. The court held that the occupiers were not liable, as the sweeps were expected to guard against the dangers natural to their profession.

Breach of Duty and Defenses

Determining whether there has been a breach of the common duty of care involves assessing whether the occupier failed to act as a reasonable person would in the circumstances. Factors such as the nature of the danger, the likelihood and severity of potential injury, and the practicability of taking precautions are considered.

Assessing Breach

In Latimer v AEC Ltd [1953], a factory became slippery due to an unexpected flood. The occupier spread sawdust over the most used areas but did not close the factory. When a worker slipped and was injured, the court held that the occupier had not breached the duty of care, as the precautions taken were reasonable under the circumstances. The risk of shutting down the entire factory was disproportionate to the likelihood of harm.

Conversely, failing to address a known hazard can constitute a breach. If an occupier ignores a broken step on a frequently used staircase, it is foreseeable that someone might fall and be injured.

Defenses and Limitations

Occupiers may have defenses available to them to mitigate or exclude liability.

1. Volenti non fit injuria (Consent to Risk): If a visitor willingly accepts the risk, the occupier may not be liable. For example, participants in an extreme sports activity may consent to certain risks evident in the sport.

2. Contributory Negligence: If the visitor's negligence contributed to their injury, damages may be reduced proportionally.

3. Warnings and Exclusions: Providing adequate warnings of dangers can discharge the duty of care, but the warning must enable the visitor to be reasonably safe. Under the Unfair Contract Terms Act 1977, liability for death or personal injury due to negligence cannot be excluded.

In Staples v West Dorset District Council [1995], a visitor slipped on a wet harbor wall covered in algae. The court held that the danger was obvious, and no warning was necessary, thus the occupier was not liable.

Occupiers' Liability Act 1984: Duty to Trespassers

The Occupiers' Liability Act 1984 extends certain duties to individuals who are not lawful visitors, commonly referred to as trespassers. While historically, occupiers owed little to trespassers, modern law recognizes limited circumstances where a duty arises.

Key Provisions

Under Section 1(3) of the Act, an occupier owes a duty to trespassers if:

(a) They are aware of the danger or have reasonable grounds to believe it exists;

(b) They know or have reasonable grounds to believe that the trespasser is in the vicinity of the danger or may come into the vicinity; and

(c) The risk is one against which, in all the circumstances, they may reasonably be expected to offer some protection.

Application to Trespassers

In the case of British Railways Board v Herrington [1972], a six-year-old boy was electrocuted when he wandered onto an electrified railway line through a gap in the fence. The House of Lords established a duty of "common humanity," requiring occupiers to act when they are aware of a danger and the likelihood of trespassers.

However, the duty to trespassers is less onerous than that owed to lawful visitors. In Tomlinson v Congleton Borough Council [2003], a young man was injured after jumping into a lake where swimming was prohibited. The court held that the council was not liable, as the risk was obvious, and the claimant had willingly engaged in the dangerous activity.

Conclusion

The interplay between statutory provisions and judicial interpretations defines the scope of occupiers' liability. The most complex aspect lies in how the Occupiers' Liability Act 1957 and the Occupiers' Liability Act 1984 overlap and diverge in assigning duties to occupiers concerning different categories of entrants. The varied standards of care owed to lawful visitors versus trespassers require occupiers to balance their responsibilities based on foreseeability, control, and the nature of the hazards present.

Key technical principles include:

• The definition of 'occupier' as a person exercising control over premises, as established in Wheat v E Lacon & Co Ltd.

• The common duty of care under the 1957 Act, requiring reasonable steps to ensure visitors' safety.

• The adjusted duty towards children, acknowledging their vulnerability, and skilled visitors, recognizing their proficiency.

• The conditions under which an occupier may be deemed to have breached this duty, considering factors like foreseeability and reasonableness.

These principles interact when occupiers must assess risks and implement measures that address the varied circumstances of visitors. For instance, the duty owed to a child trespasser under the 1984 Act may necessitate precautions that differ significantly from those for an adult visitor under the 1957 Act.

Specific requirements dictate that occupiers must remain vigilant about potential dangers on their premises, take reasonable steps to prevent harm, and understand the legal obligations imposed by both Acts. Failure to meet these requirements can result in liability for injuries sustained, as demonstrated in numerous cases.