Occupier's Liability: Duties And Defenses

After completing the module, you should be able to:
1) Analyse the aims and legal principles of Tort Law.
2) Critically evaluate the success of Tort Law in meeting the needs of society.
3) Interrogate key judgments on a selected theme to reach well-reasoned conclusions.
4) Demonstrate a capacity for legal research and independent learning by locating and employing relevant information obtained from primary and secondary sources, electronic or otherwise
This assignment is in two parts, you must complete both parts.
Does the tort of occupier’s liability impose too higher a burden on occupiers? Is discharging this duty unduly onerous?
Critically analyse the approach of the court by focusing on the judgments in the following cases and distinguishing the approaches taken in regards to visitors and trespassers.
Latham v R Johnson & Nephew Ltd [1913] 1 KB 398
Pannett v McGuiness and Co Ltd [1972] 3 All ER 137
Burnett v British Waterways Board [1973] 2 All ER 631
Tomlinson v Congleton Borough Council [2003] 3 WLR 705
When an Occupiers Liability action has been successfully proven, what remedies are available to the claimant? Are these adequate?
Please answer by giving reference to relevant case law.

What is Occupier's Liability?

Occupier’s liability refers to the duty vested on the owner of a land pertaining to those who enters such land, with or without the permission or invitation of the owner. The duty of the landowner may even extend and fall on the person, who occupies the land at that moment and therefore the term ‘occupier’ is used instead of owner. Although physical occupancy of the land is immaterial to impose liability on the occupier. Occupier’s liability majorly depend upon two essential elements: a) there was a duty on the part of the occupier pertaining to the land occupied by him; b) there is a breach of such duty by the occupier. However, in case of tort of Occupier’s liability, the occupier enjoys the defense under the ‘rule of remoteness’, same as the defense for Negligence. The occupier holds a liability towards the safety of the visitors who enter the occupier’s land and upon the omission of such duty, he can be held liable. The law regarding the occupier’s liability was first laid down in the common law, yet they are now incorporated in the two Statutes: 1) Occupier’s Liability Act 1957, and 2) Occupier’s Liability Act 1984. The Occupier’s Liability Act 1957 deals with the obligation of the occupier pertaining to the visitors who have entered the land lawfully, on request, incitation or by authority. While the Occupier’s Liability Act 1984 comprises the obligation of the occupier to the person other the lawful visitors. Undoubtedly, the lawful visitors enjoy more protection and better remedies than the ones who visits without authorization. Therefore, the burden of the occupier’s liability is more on the former Act than the latter.

Under Occupier’s liability Act 1957 the liability of the occupier pertaining to the lawful or authorized visitors to the land are discussed. It includes the Invitees and the Licensees under section 1(2), ones who are authorized by a contract under section 5(1) and the ones who enter on right conferred by law under section 2(6) of the above-mentioned Act. While in case of lack of permission, it is implied under common law that there exists a continuous trespass and the occupier has been neglecting to take an action to prevent such repeated trespass.

Under Occupier’s Liability Act 1984, section 1(3) says that the occupier has the liability to such person who are not authorized visitors. The occupier is liable if he has the knowledge of the danger in the premise; if he knows that the trespasser is in the vicinity of such danger; and if the risk is so that the occupier is required to protect such trespasser. However, under section 1(3), the aggrieved party must prove that the act or omission of the occupier has caused him damage. Section 1(4) of this Act lays down the standard of duty for the occupier pertaining to the non-invited visitors or unauthorized person. 

Duties of the Occupier

The occupier is vested with the common duty of care under section 2(2) of Occupiers’ Liability Act 1957 and section 1(4) of the Occupiers’ Liability Act 1984. The provisions say that it is the common duty of the occupier to take reasonable care to make sure that the visitor is safe in the premises for the purpose of his visit. Therefore, it is to be noted that the visitor’s safety is limited to the extent of the purpose of his visit. Section 2(3)(a) states that the occupier should be alter for children are less likely to understand the probable dangers that can arise out of a premise.  In the case of Pannett v McGuinness & Co Ltd, it was held that the defendant should have been more careful when conducting a bonfire in a building where the 5 years old child trespass and got badly burnt. Therefore, it is clear that the occupier needs to execute his duty of care diligently to avoid committing tort. Such duty of care toward visitors comprises of the reasonable care one takes to protect himself from such dangers. Remedies like damages in terms of money, injunction, restitutionary damages are some of the major defenses available to the victims to go back to the position before the occurrence of the tort.

Occupier’s defenses

Even though the occupier faces many difficulties, firstly for the act or omission cause by the visitor that has given effect to the tort and secondly for the remedies claimed by the victims. However, the occupants enjoys several defenses themselves for justifying wrong accusation of tot.

• Volenti Non Fit Injuria:  The philosophy of volenti non fit injuria is discussed in the section 2(5) of the same Act which clears out that when the visitor himself agrees to the consequence of a task, the occupier is in no way liable for such act done knowingly by the victim. However, the risk was voluntarily or involuntarily taken up is to be decided by the principles under common law.
• Contributory Negligence: the occupier may take the defence of the contribution of the visitor to make the wrong happen. Neither the victim nor occupant can be fully held liable in this matter as both of them shared the cause of the occurrence of the wrong. The amount of damages payable to the victim reduces in this matter, under the Law Reform (Contributory Negligence) Act 1945.
• Exclusion of liability: this defence can extend, modify, exclude or restrict the duty of the occupier toward the visitor under section 2(1) of the above-mentioned Act.

In the case of Annette Gilmore v Sefton MBC, it was seen that the court did not hold the council liable for the swimming pool accident as the claimant was not able to give supportive evidence of his/her damage. The court redirected the claimant to prove that he/she had danger in the swimming pool. Here, the defendant’s liability was not burdensome.

In B v McDonald’s Restaurants Ltd, it was held that the failure to warn about hot drinks to a particular teenager should not bring in the charges for breach of the occupiers’ liability, as the regular customers of such occupier are teenagers who had the common sense to take precautions for hot beverages. Therefore, the occupier was not held guilty in this matter. Like the above case, the occupier here was relieved of his burden.  

While in the case of Latham v R Johnson and Nephew, it was observed that the court held the occupier to be guilty and subsequently penalized the occupier for his lack of duty of care. It was held that it was a wrong on the occupier’s part to omit the duty of protecting the trespasser children from traps on the land.  Here, the court discussed that a child might be hurt from anything if he is too young to understand the consequences of the actions. However, the court exclaimed that it is not convinced with the fact of a trap being laid in a private property for a trespasser to come and be endangered. Here, the court was of the view to provide remedy to the victim and not penalty to the occupier, hence lowering his burden.

The Occupier's Liability Act 1957

In Pannett v McGuinness & Co Ltd, it was held that children can be easily allured by events like bonfire and, they have no sense to anticipate and acknowledge probable danger. Therefore, in such cases, the occupier is heavily penalized. In this matter Lord Denning proclaimed that an ultra-hazardous thing or activity needs ultra-cautiousness while carrying it out. Here, the occupier’s burden is onerous.

In Burnett v. British Waterways Board, the occupier was held liable for not maintaining barge equipment at their usual condition, which gave rise to the accident of Lighterman. When the occupier tried to escape its responsibility by pointing out to a notice placed on the dock stating that the employees must work on the barge on their own risk. Lord Denning held that the man had no option to follow the notice as he was an employee and he was bound to work their irrespective of what was written on the notice. Therefore, the court held the Occupier onerous for its negligence.

 In White v Blackmore it was observed that the victim, Mr. White was watching car racing in the stadium itself when a racing car leaped the barrier and crushed the victim. The defendant party claimed the defense of Volenti Non Fit Injuria, which was not maintained by Lord Denning, who pronounced that a person goes to watch a match to relax and not with the apprehension to die, therefore the occupier was held liable and onerous.

Tomlinson v Congleton Borough Council is a landmark case that had given an order, which tried to cancel out the compensation culture in the United Kingdom. In this case, Tomlinson dived into an artificial lake, hit his head at the bottom of the lake and broke his fifth vertebra. When he sued the authority maintaining the lake under the Occupiers’ Liability Act 1984, the House of Lords reversed the general order and held that the occupier has the right to avoid duty of care, when is it expressly mentioned that it was risky and dangerous to swim in the lake. Here, the occupier was not unduly onerous of his liability, hence having no burden of liability toward victim.

Conclusion

Therefore, it can be understood by the theories as well as the case laws that has been provided along with ones researched out, Occupiers have many drawbacks as most of the times it is the victims who walk away with the awards of the court. The courts are also burdened to provide remedies to the victim, which sometimes make the defendants unduly onerous, even when they are not guilty of the tort so happened. The precedents are a clear picture of the scenario. However, it can be judiciously laid down by the instances where the defendants have come out clean adopting the various defenses to ease the liability put on them without reasonable cause. Therefore, it is opined that even though it seems that the defendants are unduly onerous, yet in most times, they are reasonably held liable and made to compensate the victim, which is just and fair; at other times, the defendants hold the weapon of defenses to save themselves from paying unnecessary damages. From the cases Pannett v McGuinness & Co Ltd, Burnett v. British Waterways Board and White v Blackmore it can be seen that the occupiers are burdened with liability toward victims. While, from Latham v R Johnson and Nephew, Annette Gilmore v Sefton MBC, B v McDonald’s Restaurants Ltd and Tomlinson v Congleton Borough Council it is evident that in various circumstances occupiers are relieved from their burdens. Thus, it can be said that the burden is neither unduly onerous nor too lenient, depending from one case to the other.

The Occupier's Liability Act 1984

When the occupier breaches his duty of reasonable care towards the visitor or trespasser, he is liable, under the law of tort, to put the person back to the position in which he was before the tort was committed. The aggrieved party is eligible to three types of remedies under the law of tort, which are Legal remedy that attract monetary compensation, Restitutionary remedy, which has several types and lastly equitable remedy. However, it is to be seen whether such claimant has contracted such injury as an authorized visitor or as a trespasser. The Occupiers Liability Act 1957 will be deal with the former, while the latter will be dealt with Occupiers Liability Act 1984.

Discussion

Legal remedy is the other name for Damages or monetary compensation. It is payable by the occupier to the claimant when the loss of the claimant has been successfully proven. The amount of such compensation depends largely upon the degree of injury, loss or suffering the claimant has experienced as the occupier failed to execute his duty of care. Under common law, it is just and fair to calculate the damages depending on the loss of the victim rather than the gains of the tort-feasor. Sometimes, when the suffering and loss of the aggrieved party amounts to a great intensity, such person can also be awarded Punitive damages that is an exemplary remedy awarded additionally along with the regular monetary compensation. However, punitive damages are said to be awarded not just as an extra support to the victim, but majorly as a deterrent punishment.

In Burnett v. British Waterways Board, the plaintiff was awarded damages from the loss suffered by the broken rope of the barge.  In the case of British Railways Board v Herrington, the House of Lords held that the railway company had a duty of humanity towards trespasser, especially children, when a six years old boy was severely burned due to electrocution. The court awarded legal damages as well as punitive damages to the claimant. In Pannett v McGuinness & Co Ltd, the court held that a place where there is some event involving fire, the occupier or the person responsible for organization of the event must take reasonable care to guard the dangerous place.

The purpose of the Restitutionary remedies are to restore the position of the claimant to the previous position or at least as close as possible to the position before the loss, pain or damage was inflicted upon him. It may include restitutionary damages, replevin, ejectment and property lien as some of the form of restitutionary remedies. Restitutionary damages refers to the damages that are awarded depending on the profit or gain of the tort-feasor rather than the loss of the claimant. While Replevin facilitates the recovery of the lost property of the aggrieved party. Ejectment is the remedy that the court awards to the person who is suffering due the occupancy of his premise by another person without authorization. In such case, the court orders the occupant to vacate the premise and restore the real owner of his original position. This so happens in case of continuing trespass. On the other hand, Property Lien is ordered when the defendant or the tort-feasor cannot afford the compensation money and therefore the court orders such person to put their real property on lien, sell such property and give the money to the plaintiff. However, in case of breach of occupier’s liability, restitutionary damages is sometimes awarded when the occupier has gained something out of the loss of the visitor, licensee or trespasser.

Occupier's Defenses

In the case of Attorney-General v. Blake, the House of Lords introduced the concept of restitutionary damages for the first time. 

Equitable remedy is awarded when monetary compensation is not adequate to restore the loss suffered by the victim and put him to the position where he was before the tort was committed. This remedy includes Restraining Order and Injunction. Restraining order is usually of temporary nature, which is awarded in case the victim suffers a physical harm from the defendant. The court restrains the offender or tort-feasor to come near or make contact to the plaintiff. On the other hand, Injunction can be temporary as well as permanent. An injunction, either prohibits illegal activity by the tort-feasor or it may direct them to take corrective steps to refrain from doing the wrong. Injunctions are a common remedy given by the court for trespassing tort claim.

Injunction

An injunction is a court’s order that directs or refrains a party from committing or continuing to commit some act. It is upon the discretion of the court to grant or refuse awarding injunction if it finds that the damages are a sufficient measure. Injunction can be temporary and perpetual as well as mandatory and prohibitory. These apart, remedies of occupier’s liability breach covers:

• Injuries contracted at shopping centres, a public property which include slip and fall,
• Slip and fall on private property which includes gardens, parks and footpaths,
• Injuries brought upon the victim by animal attack where the tort-feasor has kept the animal on his property, knowing its dangerous nature,
• Injuries contracted in private property or in a public house
• Food poisoning.

In such cases, the compensation claimed by the clamant would cover his loss of income, medical or emergency costs and damages for suffering the pain and agony due to the occurrence of the tort. 

Other remedies:

Apart from the civil remedies, the claimant is eligible to demand for criminal remedies in cases where there is an adverse occupation of a premise for committing illegal activities. In such cases, court may pronounce punishment for such criminal trespass.

Self-help remedies are the non-judicial remedy that are available to the aggrieved parties to protect themselves from being harassed in a future event. In case of authorized visitation, the visitor, lessee or any other person who has been authorized to enter the premise can adopt precautionary measures.

Conclusion

Therefore, it can be concluded from studying the remedies in depth that the occupants have several remedies to avoid responsibility at certain circumstances, which seem adequate to escape wrong allegations. These remedies can be applied to different situations that may arise out of the tort of negligence.

References:

Amirthalingam, Kumaralingam. "Occupier's Liability and Negligence-Of Gordian Knots and Apron Strings." SAcLJ 25 (2013): 580.

Annette Gilmore v Sefton MBC

Attorney-General v Blake (2001) 1 AC 268

B v McDonald’s Restaurants Ltd (2002) EWHC 490

Beever, Allan. "What Does Tort Law Protect." SAcLJ 27 (2015): 626.

Bray, Samuel L. "The System of Equitable Remedies." UCLA L. Rev. 63 (2016): 530.

British Railways Board v Herrington (1972) AC 877

Burnett v. British Waterways Board (1973) 2 Lloyd's Rep. 137

Dempsey, Michelle Madden. "Victimless conduct and the volenti maxim: How consent works." Criminal law and philosophy 7.1 (2013): 11-27.

Donoghue v Folkestone Properties [2003] EWCA Civ 231

Dorfman, Avihay, and Assaf Jacob. "The fault of trespass." University of Toronto Law Journal 65.1 (2015): 48-98.

Han, David S. "Rethinking Speech-Tort Remedies." Wis. L. REv. (2014): 1135.

Hughes, Will, Ronan Champion, and John Murdoch. Construction contracts: law and management. Routledge, 2015.

Latham v R Johnson & Nephew Ltd [1913] 1 KB 398

Levine, Lawrence C., et al. Tort law and practice. Carolina Academic Press, 2016.

'Occupiers’ Liability Act 1957' (Legislation.gov.uk, 2018) <https://www.legislation.gov.uk/ukpga/Eliz2/5-6/31/contents> accessed 20 September 2018.

Oliphant, K. "Against Certainty in Tort Law." Tort Law: Challenging Orthodoxy Hart Publishing, Oxford (2013): 1-18.

Pannett v. McGuiness (1972) 3 All E.R. 137

Singh, M. P. "023_Tort Law." (2015).

Sunstein, Cass Robert, Daniel Kahneman, and David Schkade. "Assessing Punitive Damages..." (2014).

Virgo, Graham. Principles of the Law of Restitution. Oxford University Press, USA, 2015.

White v Blackmore (1972) 2 QB 651

White v Blackmore (1972) 3 WLR 296