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When are occupiers in breach of their duty of care? The advantages of a systematic test
Published online by Cambridge University Press: 22 October 2019
Abstract
Sixty years have passed since occupiers in England and Wales were placed under a statutory duty to keep visitors to occupied premises reasonably safe. The legislation, however, did not detail the exact operation of this duty of care. The case law, expected to fill in the gaps, has arguably developed without sufficient consistency and/or predictability. This apparent confusion can be remedied through applying a systematic test to the question of whether a breach of duty has occurred. The test follows the verification that the case falls within the field of occupiers’ liability because of the presence of a danger attributable to the state of the premises. It consists of three consecutive stages which ask: (1) whether the risk of injury was foreseeable; (2) whether the occupier could reasonably have been expected to have addressed this very particular risk; and (3) whether any remedial action the occupier actually took was appropriate.
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- Copyright © The Society of Legal Scholars 2019
Footnotes
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Thanks to Jo Bridgeman and the two anonymous reviewers for their insightful comments on the previous draft.
References
1 Edwards v Sutton LBC [2016] EWCA Civ 1005.
2 English Heritage v Taylor [2016] EWCA Civ 448.
3 G4S Care and Justice Services (UK) Ltd v Manley [2016] EWHC 2355 (QB).
4 Law Reform Commission Third Report: Occupiers’ Liability to Invitees, Licensees and Trespassers (1954) Cmd 9305 p 493.
5 OLA 1957, s 2(2).
6 Law Reform Commission, above n 4, Minority Report by Mr Kenneth Diplock QC p 515.
7 As noted by North, POccupiers’ Liability (Oxford: Oxford University Press, 2014) p 10Google Scholar.
8 Law Reform Commission, above n 4.
9 Payne, D ‘The Occupiers’ Liability Act’ (1958) 21 MLR 359 at 374CrossRefGoogle Scholar.
10 McMahon, B ‘Conclusions on judicial behaviour from a comparative study of occupiers’ liability’ (1975) 38 MLR 39CrossRefGoogle Scholar. See also Barker, F and Parry, N ‘Private property, public access and occupiers’ liability’ (1995) 15 Legal Studies 335CrossRefGoogle Scholar.
11 For a perspective stressing this point, see Elvin, J ‘Occupiers’ liability, free will, and the dangers of a “compensation culture”’ (2004) 8 Edinburgh Law Review 127CrossRefGoogle Scholar.
12 For an argument emphasising protection, see Bridgeman, J ‘Unrelated adults and unaccompanied children: obligations, risks and responsibilities’ (2013) 25 Child and Family Law Quarterly 159Google Scholar.
13 For example, in Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052, the Court of Appeal agreed with the analysis of Lord Goff in Ferguson v Walsh [1987] 1 WLR 1553, according to which the duty outlined in OLA 1957, s 2(2) relates to the visitor's use of the premises (for which he is invited or permitted), thereby limiting the scope of the duty to protect from harm caused by the state of the premises itself.
14 Geary v JD Weatherspoons [2011] EWHC 1506 (QB). See for another example Bosworth Water Trust v SSR [2018] EWHC 444 (QB) (child hit on his face by a golf club swung by his friend at a birthday party). However, the distinction is not without ambiguity: see further below n 84.
15 See eg Pook v Rossall School [2018] EWHC 522 (QB) (pupil falling whilst running to a hockey pitch).
16 As the Law Commission hoped would happen when it recommended extending occupiers’ liaility to trespassers: Report on the liability for damage or injury to trespassers and related questions of occupiers’ liability’ (Law Com No 75 1976) at [11]. See also L Bennett ‘Judges, child trespassers and occupiers’ liability’ (2011) 3 International Journal of Law in the Built Environment 142.
17 Wheat v Lacon & Co Ltd [1966] AC 552.
18 North, above n 7, p 58; M Jones et al Clerk and Lindsell on Torts (London: Sweet and Maxwell, 21st edn, 2014) p 871.
19 Emphasis added.
20 Maylin v Dacorum Sports Trust [2017] EWHC 378 (QB). For other examples, see above n 13.
21 The first category of visitors, eg persons entering a shop, were denominated ‘invitees’; the second, including for example someone allowed to cross the premises or guests to a dinner, ‘licensees’: Law Reform Commission, above n 4, p 481.
22 OLA 1957 defines visitors in s 1(2) as ‘the persons who would at common law be treated as … invitees or licensees’.
23 The duty 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’.
24 For example, note the decision in Pollock v Cahill [2015] EWHC 2260 (QB) where a visitor with limited vision suffered serious injuries when he fell out of an open window – in itself not unsafe to a sighted visitor.
25 OLA 1957, s 2(4).
26 Adams v SJ Watson & Co (1967) 117 NLJ 130.
27 Stone v Taffe [1974] 1 WLR 1575.
28 Jolley v Sutton [2000] 1 WLR 1082 (derelict boat left ready to fall onto children playing).
29 Cotton v Derbyshire Dales DC (1994) Times, 20 June (CA).
30 Tedstone v Bourne Leisure Ltd (t/a Thoresby Hall Hotel & Spa) [2008] EWCA Civ 654 (there had been no time to clear up the water spillage).
31 Cockbill v Riley [2013] EWHC 656 (QB).
32 For a different view, see North, above n 7, p 10.
33 As per Bottomley v Todmorden Cricket Club [2003] EWCA Civ 1575.
34 Cited in English Heritage v Taylor [2016] EWCA Civ 448 at [12].
35 The exception is where there is ‘no genuine and informed choice’: see Tomlinson v Congleton [2003] UKHL 47, [2004] 1 AC 46 at [46] (Lord Hoffmann); English Heritage, above n 2, at [7] (McFarlane LJ).
36 Rochester Cathedral v Debell [2016] EWCA Civ 1094 at [24].
37 Ibid, at [26].
38 Edwards v Sutton, above n 1, at [42] (McCombe LJ).
39 Ibid, at [43].
40 Ibid, at [46].
41 Ibid, at [52].
42 Ibid, at [53].
43 Ibid, at [61].
44 Ibid, at [38].
45 Ibid, at [45].
46 Ibid, at [48].
47 Ibid, at [57].
48 Ibid, at [51].
49 Bourne Leisure v Marsden [2009] EWCA Civ 671.
50 Ibid, at [33].
51 Ibid, at [40].
52 Ibid, at [8].
53 Ibid, at [17] (Moses LJ).
54 Ibid, at [20].
55 Anderson v Imrie [2016] EXOH 171.
56 Ibid, at [33].
57 In 1972 the House of Lords ruled that trespassers could in some circumstances be owed a duty of care by occupiers, on the basis of a ‘common humanity’: British Railways Board v Herrington [1972] AC 877. This prompted Parliament to pass a new Occupiers’ Liability Act in 1984 (OLA 1984) in relation to trespassers. The duty under this Act arises only if the occupier was aware of the danger and knew or had ground to believe that the trespasser was or could have been in the vicinity of the danger. It is of a lower standard than that pertaining to the OLA 1957. In addition, the trespasser's claim can only be for compensation for death and personal injury (thus excluding loss of or damage to property). Our test could also apply to cases litigated under OLA 1984, but with slight modifications we do not have the space to detail in this paper.
58 O'Rafferty v London School of Economics [2016] WL 08309370.
59 Burton v Butlins Skyline Ltd 2016 WL 08116656.
60 Tomlinson, above n 35, at [34]–[44]. On the ‘compensation culture’ see Williams, K ‘State of fear: Britain's “compensation culture” reviewed’ (2005) 25 Legal Studies 499CrossRefGoogle Scholar; Morris, A ‘Spiralling or stabilising? The compensation culture and our propensity to claim damages for personal injury’ (2007) 70 Modern Law Review 349CrossRefGoogle Scholar; Lord Dyson ‘Compensation culture: fact or fantasy?’ Holdsworth Club Lecture, 15 March 2013; R Lewis ‘Compensation culture reviewed: incentives to claim and damages levels’ (2014) Journal of Personal Injury Law 20.
61 Cook v Swansea City Council [2017] EWCA Civ 2142.
62 Ibid, at [35] (Hamblen LJ). For a similar incident and outcome, Cairns v Dundee City Council [2017] CSOH 86, but adding at [21] that warning signs (#3) would have stated the obvious.
63 Singh v City of Cardiff Council [2017] EWHC 1499 (QB).
64 Robinson v North Yorkshire County Council (30 January 2017, unreported), Newcastle-upon-Tyne County Court.
65 Ibid, at [4]–[8] and [27].
66 A key theme in the judgment: ibid, eg at [26]–[27].
67 O'Rafferty, above n 58.
68 Ward v Ritz Hotel Ltd [1992] PIQR P315.
69 AB (a protected party by his litigation friend, CD) v Pro-Nation Ltd [2016] EWHC 1022 (QB).
70 Spearman v Royal United Bath Hospitals NHS Foundation Trust [2017] EWHC 3027 (QB) at [62] and [64]. See also C v City of Edinburgh Council [2018] WLT (Sh Ct) 34 at [49] (local education authority liable to a pupil's mother injured by a sign which fell off a school wall).
71 For example Edwards v Sutton, above n 1. Similarly, in Mullen v Kerr [2017] NIQB 69, the occupier of a private access road with no footpath was not liable to a pedestrian injured by a car. A risk assessment would not have been able to prevent the collision. Key factors were the light use of the road by vehicles (#1) and the fact that even if a footpath had been provided, pedestrians would probably not have used it (#25).
72 As in Bourne Leisure at first instance. See also Ireland v David Lloyd Leisure Ltd [2013] EWCA Civ 665 (warnings should have been given about a piece of gym equipment which severed a weightlifter's finger).
73 Such as in Bourne Leisure before the Court of Appeal.
74 Rochester Cathedral, above n 36, at [11].
75 Ibid, at [25] per Elias LJ.
76 Ibid, at [15].
77 Ibid, at [13].
78 Cowan v Hopetoun House Preservation Trust [2013] CSOH 9.
79 Risk v Rose Bruford College [2013] EWHC 3869 (QB).
80 North, above n 7, p 73.
81 Ratcliff v McConnell [1999] 1 WLR 670 at [44].
82 ‘Much was made of the trial judge's finding that the dangers of diving or swimming in the lake were obvious, at least to adults. No one has contested that finding of fact. But I think its importance has been overstated … he was not taking a premeditated risk …’: Tomlinson, above n 35, at [94].
83 Rochester Cathedral, above n 36, at [24].
84 Most academic opinion accepts that OLA 1957 relates to ‘static’ occupancy rather than ‘activity’ dangers. However, the OLA 1957, s 1(1) speaks of ‘dangers due to the state of the premises or to things done or omitted to be done on them’ (emphasis added). As a result, where an activity gives rise to a continuing source of danger, for example because premises are used for the conduct of a dangerous sport, occupiers’ liability may still apply, as recognised in Law Com Report No 75 (above n 16).
85 Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39.
86 Spearman, above n 70, at [56].
87 Tomlinson, above n 35, at [26].
88 As in Keown v Coventry Healthcare NHS Trust, above n 85; O'Rafferty, above n 58.
89 See eg English v Burnt Mill Academy (1 August 2016, unreported) Southend County Court (school not liable under the OLA 1957 when child runs into a bollard located within a largely unused space).
90 See previous note; also Rochester Cathedral, above n 36, at [26] (requiring ‘more than the everday risk’); Edwards v Sutton, above n 1, where LJ McCombe commented at [51]: ‘it appears to me that the probability of such an accident could properly have been sufficiently remote that the risk could be regarded as minimal’.
91 ‘[I]f the risk is so slight and remote it may not be reasonable that the occupier should take any steps’; ‘it should not be so small a risk as not to trigger the Act’; ‘the probability of such an accident could properly have been sufficiently remote that the risk could be regarded as minimal’: Tomlinson, above n 35, at [80].
92 North rightly observes that foreseeability and likelihood of injury are two different issues: ‘the fact that a risk is unlikely, such as slipping when diving into a swimming pool, does not mean that it is not foreseeable’: North, above n 7, p 80 (referring to Maguire v Fermanagh District Council [1996] NI 110).
93 Edwards v Sutton, above n 1 (fall from a bridge) rightly noted that past incidents are an indicator of foreseeability: at [51]. In Tomlinson, above n 35, at [79] (Lord Hobhouse of Woodborough) the accident was described as ‘unique’, implicitly explaining why the risk of drowning was ‘very low indeed’.
94 This was recognised by Lord Hoffmann in Tomlinson, above n 35, at [37].
95 As noted by Amirthalingham, K ‘The common law and occupiers’ liability. Case comment’ (2014) 130 Law Q Rev 211–214Google Scholar (referring to ‘the sovereignty interest of the occupier’ and ‘the personal safety of individuals who come upon the premises’).
96 Tomlinson, above n 35, at [45]–[48].
97 Keown, above n 85, at [17].
98 It might have been argued that the fire escape was not inherently dangerous and the threshold test unmet.
99 Spearman, above n 70 at [59].
100 Tomlinson, above n 35, at [37]. There is ‘no duty to obviate any conceivable risk’: O'Rafferty, above n 58, at [62]. In West Sussex County Council v Lewis Pierce [2013] EWCA Civ 1230, the Court of Appeal reversed a first instance judgment and found a school not liable for the injury incurred by a child who, wanting to punch his brother, missed and hit a metal water fountain instead – the school had kept its visitors reasonably safe.
101 Please note the seeming overlap between stage 2(ii) and the initial threshold test. This ambiguity is unavoidable since the statutory duty is to keep the visitor reasonably safe – rather than the premises devoid of any danger to any and every person. See further the concluding paragraph of this section, on the way it is open to the judge to dismiss an occupiers’ liability case at different stages of our test.
102 G4S Care and Justice Services (UK) Ltd, above n 3. See also Spearman, above n 70, at [59]: ‘[A] hospital must anticipate that patients attending or being brought into the hospital will include vulnerable patients who are confused and mentally unstable and may therefore be expected to act in an unpredictable way’.
103 For an illustration, Yates v National Trust [2014] EWHC 222 (QB) (no duty breached when accident results from the way some work was performed, the more so since the occupier was entitled to expect visitors engaged as specialist contractors to take care to guard against ordinary risks incidental to the job).
104 More factors could be added of course. For example, in Cook v Swansea City Council [2017] EWCA Civ 2142 at [35], the Court of Appeal noted that the local authority had not been alerted by a member of the public to the particular danger of the ice in the car park.
105 As per the common law prior to OLA 1957. See also Harris v Perry [2008] EWCA Civ 907 (householder not liable for failure to observe detailed health and safety instructions accompanying bouncy castle hired by him for a party).
106 See eg Hood v Forestry Commission (8 March 2017, unreported) (Preston County Court), at [17] (cyclist on a trail knows ‘full well’ the risks he is taking on a wet day, justifiying non-lability).
107 North, above n 7, pp 76–77.
108 As per British Railways Board v Herrington [1972] AC 877 at 899 (Lord Reid).
109 However, breach of duty towards visitors does not automatically result in occupiers’ liability. General principles of causation and remoteness as well as any relevant defence will have to be considered before liability is decided.
110 The majority in Tomlinson concluded against the expanse of water being a danger, but this was in very different factual circumstances.
111 A phrase we borrow from the common law. See eg Glasgow Corpn v Taylor [1922] 1 AC 44.
112 As recognised by the pre-1957 common law distinction between licensees and invitees.
113 See eg Ward v Ritz Hotel Ltd [1992] PIQR P315. The ruling in Bourne Leisure seems to have been based on one environmental officer stating that he ‘regarded the guidance in relation to garden ponds and schools as useless … a pond in a school is an entirely different thing to a pond in a park’.
114 The Court of Appeal dismissed the issue of warnings as not telling parents anything they did not know. In our view, the parents should have been made aware of the location of the pond. It was accepted in court that welcome packs and site plans are not scrutinised for dangers : ‘parents cannot be expected to do more than look for the location of their caravan and of any attractions which they might visit’: at [21]. And in any event the plan in the pack did not show the path down which the children had wandered.
115 Phipps v Rochester Corporation [1955] 1 QB 450.
116 This ‘anti-mother’ stance may be confirmed by decisions which, by contrast, find no occupiers’ liability for injuries sustained by children when it is public authorities who are the occupier. Keown, above n 85, has already been discussed. See also Dyer v East Sussex County Council (19 December 2016, unreported) Brighton County Court, where a child was struck by a metal gate in a school playground.
117 In Perry v Harris [2008] EWCA Civ 907, [2009] 1 WLR 19, Lord Phillips recognised that children cannot and should not be under the constant surveillance of their parents.
118 For a similar view, expressed in regard to older children, see Bridgeman, above n 12.
119 See, in 2017 alone, Wheeler, J ‘Rochester Cathedral v Debell’ (2017) 1 JPI Law C21–C24Google Scholar; Amirthalingam, K ‘Occupiers’ liability in England: time for some housecleaning?’ (2017) 33 Professional Negligence 50Google Scholar; Morris, A ‘G4S Care & Justice Services (UK) Ltd v Manley Case comment’ (2017) 1 JPI Law C18–C21Google Scholar.
120 We disagree that ‘It is not essential to approach [occupier's liability] in a “linear” fashion: first identifying the relevant danger and only thereafter considering whether the occupier has shown a reasonable degree of care in regard to it’: Dawson v Page [2013] CSIH 24 at [13].
121 We do not wish to recommend that a new legislative provision incorporate our framework test. However, we note that there is precedent for the adoption of ‘guidelines’ that assist the courts in deliberating on the interpretation of statutory terminology, and that this could be done in relation to the OLA 1957 too.