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The Occupier's Liability Act 1957 deals with liability for visitors whereas the Liability Act 1984 covers liability to non-visitors (mainly trespassers).
The legislation makes the occupier liable for the state of the premises but does not effectively define occupier and this leads us to look at the common law tests applied by the courts as they sought to interpret what Parliament intended. When seeking the identity of the occupier, the courts will look at who has control of the premises (Wheat v Lacon & Co Ltd) and dual occupation is a possibility (see Wheat but also Collier v Anglian Water Authority (1983) below). This is significant because this will identify the potential defendants and who has the means to justify being sued.
An occupier therefore is someone who occupies premises, has possession of, or a sufficient degree of control of, premises, or an area within premises, there can be more than one occupier.
The case of Wheat v Lacon & Co Ltd (1966) came before the House of Lords in 1966. The claim was brought by the estate of Mr Wheat who fell while going down the rear stairs of a public house called 'The Golfer's Arms' at Great Yarmouth. Mr Wheat died of his injuries after falling down the stairs in the private part of the public house. The state of the stairs was an issue in the case not least because they were dark because a light was not working and the bannister rail did not run completely to the bottom of the stairs but stopped about two steps up from the bottom.
The court did not take issue about the cause of the injury. The court did dwell on the subject of the stairs and their condition and accepted that, at the end of the day, the injuries sustained were as a result of the state of the stairs. The critical question that arose in the appeal was regarding who was responsible. It turned out that the premises were owned by the brewery Lacon & Co Ltd but the premises were managed by Mr Richardson and his wife. The original action by the claimant against the brewery and the other defendants, Mr & Mrs Richardson, resulted in a judgement in favour of the brewery and the other two defendants. The claimant then appealed the decision to the Court of Appeal but did not appeal the decision against the other two defendants. The Court of Appeal dismissed the appeal and the matter then went to the House of Lords.
As we shall see the House of Lords identified a number of critical points and as a result made a significant contribution to the development of the law on occupiers' liability as a result of these careful considerations.
The court needed to address the question as to who was the occupier? The brewery or the manager of the public house?
The court took the view that an occupier is someone who has control of the premises at the time the cause of the action arose i.e. in this case the time of the fall. The court also determined that there can be more than one occupier.
On the matter of control the trial judge held that the Respondents (the brewery) and the Richardsons were occupiers of the premises and ruled that the Respondents were occupiers of the material part of the premises. The Court of Appeal were not unanimous on this point, so the House of Lords had to give careful consideration to this element.
Viscount Dilhorne came to the conclusion that the respondents were, at the material time, occupiers of the material parts of the premises. He decided on authority that the nature of the relationship between the brewery and the Richardsons, namely employer and employee was relevant and that the wording of the agreement between the parties was more akin to the nature of a licence than a lease and that this was sufficient to give the brewery a right of control over the private part of the premises as they retained the right to carry out repairs.
This did not rule out the fact that the manager also appeared to have an element of control over the private parts of the premises which included the right for Mrs Richardson to take in summer visitors. It should be remembered that this line of reasoning was brought about as the Appellant claimed that the brewery were occupiers of the public house and so owed to Mr. Wheat, as a visitor to the public house, the duty prescribed by the Occupiers Liability Act, 1957. However, to establish who was in occupation was not enough as it did not follow that the occupier of the premises was responsible for the condition of the property. For this reason their Lordships went on to consider whether the brewery or the Richardsons were under any responsibility for the dangerous state of the premises.
The Court concluded that whilst the missing bulb made the stairway unsafe it was not dangerous otherwise. Neither the brewery nor the Richardsons could be shown to be responsible for the lack of a working light – in the absence of any evidence the court accepted that the missing bulb could have been the work of a complete stranger. The court therefore reasoned that neither party was in breach of their duty because they took the view that on the evidence there was nothing necessarily dangerous about the premises before the accident. This is consistent with the view that liability under both the 1957 Act and the Occupier's Liability Act 1984 is concerned with damage resulting from the state of the premises and not activities undertaken. This is an objective test.
All five of their Lordships hearing the case dismissed the appeal in the absence of a breach of duty.
It might be useful to consider how the law has been applied in other cases involving a common duty of care owed to visitors. In Collier v Anglian Water Authority (1983) the claimant, a holiday maker, tripped over a raised slab on the walkway of the promenade which was also used as a sea defence. It had been built originally by the Water Board on local authority land. The local authority were responsible for collection of rubbish and had a degree of control over the area but all responsibility for repair was with the Water Authority. The defendant water authority were found to be responsible for the area in question as this formed part of their statutory duties. The water authority were held to be in control as a result of these responsibilities imposed upon them.
This seems reasonable as a high degree of control would be necessary to ensure the safety and adequacy of the sea defences and this control might extend to having a say about when it was safe to use the promenade in times of stormy weather. The defendants were considered to be occupiers for the purposes of the Act of 1957 and the court awarded her damages. Had Ms Collier slipped on some rubbish and injured herself the council would have been responsible rather than the Water authority.
The question of whether physical possession of the premises in question is necessary has been the subject of legal scrutiny. In Harris v Birkenhead (1976) the Court of Appeal took the view that physical occupation was not necessary for liability to be incurred. In that case a 4 year old girl was seriously injured as a result of falling from a derelict house which the council was entitled to take possession of, following the service of a notice on the owner, but did not actually take possession of the property.
In Whiting v Hillingdon LBC (1970), the Claimant fell when she stepped from a footpath to allow someone to pass, and fell as result of falling over a hidden tree stump. The footpath was maintained at public expense. She claimed under Occupiers' Liability Act 1957 as well as in negligence. It was held that the local authority was not an “occupier” of a road or footpath within the meaning of the 1957 Act merely by virtue of its duty to maintain it under Highways Act. The court also concluded that the defendant had not breached the Highways Act or been negligent.
It is worth mentioning here that the law does provide a remedy for negligence where it is found that a duty of care exists and that duty has been breached. The fact that the defendant was not found to be an “occupier” does not therefore mean that the claimant is left without a remedy if one exists – it just so happens that the court found that the defendant had not been negligent.
The case seems at odds with the preceding case of Collier but presumably sea defences may in themselves become dangerous at times of stormy or unpredictable weather so the authority ought to have regard to public safety. The court may also have taken the view that a promenade may become unsafe due to wear and tear or the effects of sea water and that the authority should be alert to this. The sea defences had been constructed for some years and the paving slab had raised.
The case of Whiting seems more akin to the case of McGeown v Northern Ireland Housing Executive (1994), where the Claimant was injured when she fell on a public footpath. The House of Lords ruled in this case that a person exercising a right of way is not a visitor for the purposes of the Act, but someone exercising a right. As a result of such a finding the land owner did not owe a duty under the 1957 Act.
As can be seen from the case of Lacon and others the House of Lords has handed down an important ruling as to the proper approach to be taken when considering the liability imposed under the 1957 Act upon occupiers for visitors and that, just because a party is held to be an occupier, it does not necessarily mean that liability will follow. The ruling also shows that control is an extremely important factor pointing to a finding that the party in control is an occupier for the purposes of the 1957 Act and that it is also possible to have more than one occupier. It is always vital that the relationship and responsibility for the premises is closely examined as it is not always the case that liability follows responsibility as can be seen from the above cases.
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