Occupiers Liability Question and Answer
Question
Mick Heavy is a farmer who hosts an annual music festival on his land, which attracts upwards of 80,000 people. What is his liability (if any) under the Occupiers' Liability Acts in the following situations?
i) Concerned at the number of people who gain access to the festival without buying a ticket, Mick hires the services of Jobsworth to erect a steel fence around the festival site. The fencing consists of interlocking sections, some of which have particularly sharp edges. Freeloader, a fifty-something year old hippy, has attended the festival since its first year in 1975. For the first ten years, there was no admission charge and Freeloader, who is totally opposed, on ideological grounds, to admission charges to festivals, has since managed to secure admission without paying. This year, Freeloader decides to climb over the fence and loses a finger when it is caught in between two fence sections. To add insult to injury, his new Afghan coat, purchased recently from the bazaar in Marrakesh, is badly torn.
ii) Moondance, having attended all three days of the festival, contracts a serious disease. It seems that this is a consequence of her having engaged in nude mudsliding on the second day of the festival, when it rained incessantly. The disease is transmitted by cattle and, prior to the festival, Mick had been grazing cattle in the fields in which the festival took place.
iii) Mucus, a punk band from the early eighties, are persuaded to reform for the festival. As is their way, they set up all their own equipment prior to their set. Mick Snot, the lead singer, and Flick Bogey, the bass guitarist, suffer first degree burns as a result of being electrocuted whilst playing an encore to an enthusiastic crowd.
Answer
introduction
This paper is advice for Mick Heavy (“MH”) a farmer who hosts an annual music festival on his land, which attracts upwards of 80,000 people. First this paper will advise MH in relation to his liability under the Occupiers' Liability Acts in regards to Freeloader. Second this paper will advise MH in relation to his liability to Moondance who has contracted a disease. Third this paper will advise HM in relation to Mick Snot, and Flick Bogey, performers who have suffered first degree burns as a result of being electrocuted whilst playing an encore to an enthusiastic crowd.
Freeloader
i) Concerned at the number of people who gain access to the festival without buying a ticket, Mick hires the services of Jobsworth to erect a steel fence with interlocking sections, some of which have particularly sharp edges around the site. Freeloader decides to climb over the fence without paying and loses a finger when it is caught in between two fence sections. His new Afghan coat, purchased in Marrakesh, is badly torn.
Following the Occupiers Liability Acts of 1957 and 1984, occupiers now owe a duty of care to persons on their premises. Persons on occupier’s premises are divided into two broad classes, namely visitors and trespassers. The nature of the duty varies according to whether an individual is a visitor or a trespasser. Visitors are dealt with under the ’57 Act whereas trespassers are dealt with under the ‘84 Act.
Trespasser
The decision in British Railways Board v Herrington [1972] AC 877 prompted a Law Commission Report (Law Commission no 75, Cmnd 6428) which in turn led to the Occupiers Liability Act 1984. This Act covers all those on premises other than lawful visitors - mainly trespassers, but also persons using a right of way across the premises. But the duty it imposes on the occupier, like the "duty of common humanity", is limited to dangers of death and personal injury. Freeloader has not paid the admission fee and is therefore a trespasser for the purposes of the act.
Duty of Care
The first question in considering possible liability under the 1984 Act is whether in the particular circumstances the occupier had a duty of care at all. Such a duty is not automatic, and arises only where the conditions set out in s.1 (3) is fulfilled. Unlike the duty owed to visitors under the 57 Act, a duty to trespassers will only come into operation where certain criteria are met, namely: MH the occupier of premises owes a duty to Freeloader (not being his visitor) because he would have been aware of the sharp fence and knew people tried to gain access – if he hasn’t used warning signs he will most likely be liable for the damage to freeloader’s finger if:
(a) He is aware of the danger or has reasonable grounds to believe it exists;
(b) He knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case whether the other has lawful authority for being in that vicinity or not); 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. (s.1(3) Occupiers Liability Act 1984).
Reasonable care
Once a duty has been established according to the criteria set out in s. 1(4), it is incumbent upon the occupier ‘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’. In determining what is reasonable, the courts must balance the magnitude of the risk against the burden which removing the risk would place on the occupier.
Warnings
Taking steps to warn potential trespassers of the danger may discharge the duty (s. under 1(5) owed by MH. If he has not put up any signs MH can argue there is no duty to warn against obvious dangers. In Ratcliff v McConnell [1999] 1 WLR 670, A 19-year-old student P climbed over a locked gate late one night and dived dived into the shallow end, and hit his head on the bottom, causing injuries, which left him almost totally paralysed. He sued the College DD under the Occupier's Liability Act 1984 and the trial judge found in P's favour subject to a deduction for contributory negligence. Allowing DD's appeal, Stuart-Smith LJ said there were several warning notices around the pool, and the dangers of diving into water of unknown depth were too well-known to need any further express warning. P had accepted the risks, and under s.6 of the Act his claim must fail. Section 1(8) restricts liability to only personal injury claims; therefore Mick will not have to pay for the replacement of the Afghan coat. (See Barbara Harvey and John Marston, TORT, Fourth edition, 2000, Pearson: Essex, p.274)
Contributory Negligence
Mick will not be liable if he can show that freeloader willingly accepted the risk – this is to be analysed by reference to the regular common law principles of duty and contributory negligence. The defence of volenti is preserved by virtue of s. 1(6). ‘No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person( the question of whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another.’ In Dobell v Thanet DC, 22 March 1999, unreported, A person went to a public toilet, it was closed no lights, he attempted to enter, fell injured himself. It was voleni that he attempted to use a closed toilet in darkness. Also it is as Case law evidence such as (Ratcliff v McConnell [1999] 1 WLR 670, CA (dive into shallow pool). See John Cooke, Law of tort, seventh edition, 2005, Pearson Education limited, Essex, p. 222).
Moondance
Moondance, having attended all three days of the festival, contracts a serious disease. It seems that this is a consequence of her having engaged in nude mudsliding on the second day of the festival, when it rained incessantly. The disease is transmitted by cattle and, prior to the festival, Mick had been grazing cattle in the fields in which the festival took place.
Moondance is a lawful visitor and has attended the event legally subsequent to purchasing a ticket. Under section 1(2) of the 57 Act Mick will be the occupier, as he is in control and possession of the premises. The same is preserved through the common law. In Wheat v E Lacon & Co Ltd [1966] AC 522, the owners of a pub put it in the hands of a manager, who was authorised to take lodgers. One such lodger was injured while using an unlit staircase. The House of Lords held that the owners (brewery) could still be sued as occupiers because they retained some control over the state of the premises. (Barbara Harvey and john Marston, TORT, fourth edition, 2000, Pearson Education Limited, Essex United Kingdom. p273)
Duty of Care
Mick owes Moondance the common law duty of care to take such care as is reasonable in all the circumstances (Section 2(2)). This section states 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’. Moondance must demonstrate that the occupier failed to take reasonable steps to ensure his safety. The mere fact a hazard was present on the premises will not be sufficient to establish liability unless it can be shown that the occupier ought to have been aware of that hazard and failed to take reasonable steps to deal with it. (Ward v Tesco Stores Ltd [1976] 1 W.L.R. 810).
Scope of the Duty
It extends to all injury that is ‘reasonably foreseeable’. The court will probably hold MH liable as reasonably foreseeable that people would slide in mud and he had cattle grazing there first.
Warning
MH may seek to discharge his common duty of care by giving a verbal warning or displaying a warning notice (s. 2(4)(a) OLA 57). This may sometimes be enough for him to escape liability, but the warning is unlikely to be effective (practically or legally) unless it is clearly visible or audible to the visitor, is in language readily understood by the visitor (who may not be able to read English) and indicates the nature of the danger sufficiently clearly to allow the visitor to take steps to avoid it. In Roles v Nathan (below) Lord Denning MR gave the example of a warning notice on the only bridge for miles: if there is no other way of crossing the river, the notice does nothing to enable the visitor to be safe.
Contributory Negligence
Unlikely court will hold that Moondance willingly ran the risk of contracting serious disease. Not foreseeable to her and is arguably normal behaviour at a festival.
Mick Snot and Flick Bogey
Flick Bogey, the bass guitarist, suffer first degree burns because of being electrocuted whilst playing an encore to an enthusiastic crowd. As Mucus have been invited to attend the festival they will be lawful visitors and the Occupier’s Liability Act 1957 will apply on same principles as above. It is unlikely MH will not be liable because he did not set up the equipment nor have the appropriate knowledge to make this injury reasonably foreseeable thereby bringing it within the scope of his knowledge under the act.
Mick and Flick may be considered independent contractors, if he is paying them to perform (Lovett v Arthur Andersen & Co [2003] EWCA Civ 1946). The Act largely replicates the common law position in respect of the liability of occupiers for harm caused by independent contractors working on the premises. However, it was considered necessary to include a special provision on this issue in order to reverse a common law rule, which fixed the occupier with a non-delegable duty in respect of harm caused to certain classes of visitor. The 57 Act makes it clear that the occupier will only be liable for harm caused by independent contractors in certain circumstances. s. 2(4)(b) OLA 57 states ‘where damage is caused to a visitor by a danger due to the faulty execution 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.’
Thus an occupier will not be liable if he engaged suitably qualified professionals in order to carry out repairs etc. In Haseldine v Daw [1941] 2 KB 343, a lift in a block of flats fell and crashed at the bottom and killed a person. The contractors were competent in the past and nature of their work was specialist in nature, and it was not reasonable to expect the occupiers to inspect the quality of that work.
