Occupier's liability owed by Lord Waltersmith

The first part of the question focuses on occupier’s liability, specifically the liability owed by Lord Waltersmith and his contractors to West and Peat. To decide the relevant outcomes it’s important to compare the facts of the question with case and statute law, ascertaining the responsibilities of each party, allowing possible remedies and defences to be discussed.

There are two occupier’s liability acts. The major difference between the acts is the people they deal with. The 1957 act section 1 (1) proposes the duty which an occupier of premises owes to his visitors, therefore dealing with legal visitors. The 1984 act deals with persons other than visitors, including trespassers. The act relating to the question, which will determine the duty of care owed, the defences and remedies is the 1957 act.

To determine which party is at fault, the occupier of the land must be decided, neither occupiers’ liability act defines the occupier. Section 1 (2) of the 1957 act suggests an occupier is someone who at common law would be treated as an occupier, so common law must be used to determine the occupier (Cooke, 2009). The most prominent law case relating to occupation is Wheat v E Lacon & Co Ltd (1966)­­­­­­­­ [1] . The case established that there can be more than one occupier, but the extent of the duty of care can be different for both (Giliker and Beckwith, 2008). The outcome of this case means both Lord Waltersmith and his contractors are classed as occupiers.

It’s held that the occupier of premises is obliged to provide a common duty of care to lawful visitors. They must take reasonable care in all circumstances to ensure that visitors will be reasonably safe using the premises for the purpose they have been permitted (occupiers liability act, 1957, s.2 (2)). From this it’s worth noting that only the visitor must be safe, not the premises, therefore liability can be imposed when an occupier neglects to protect a visitor from an inherent danger (Gilicker and Beckwith, 2008). Section 2 (4) (b) of the 1957 act explains that for an occupier employing an independent contractor, it must be reasonable to entrust work to a contractor, the more technical the more reasonable it is, the competency of the contractor must be investigated and the occupier must make the effort to ensure work has been done properly, finally the occupier must ensure the contractor has correct insurances (Cooke, 2009). If the occupier has fulfilled these requirements it’s still possible for a claimant to take action, either claiming the contractor was an occupier or under common law through negligence. It’s acceptable to assume the contractors work is of a technical nature and reasonable to employ them, they have carried out the work properly and have the correct insurance. By fulfilling these requirements Lord Waltersmith can pass on liability to the contractors.

West and Peat, aged 10 and 9, would normally be treated as trespassers; because they are children they are owed a greater level of care. Section 2 (3) of the 1957 act proposes an occupier must be prepared for children to be less careful than adults. An object which poses no threat to an adult could be dangerous to a child (Jones, 2002), children regularly fail to appreciate dangers that are clear to an adult and are drawn to objects unaware of the inherent dangers (Giliker and Beckwith, 2008). The outcome of past case law reflects this notion, most notably Glasgow corp v Taylor [2] where it was held that an allurement not suitably protected constituted a breach of duty of care, this can be backed up by Jolley v LBS [3] , where allurement was again cited. Allurement can be described as temptation and extra care needs to be taken where an allurement exists. Allurement exists when in the same situation the occupier would not be liable to an adult (Jones, 2002).

Where younger children are concerned an occupier may discharge their duty of care if the child would be safe when accompanied by an adult (Giliker and Beckwith, 2008). This has been held by several cases, most notably Phipps v Rochester [4] , where it was decided that prudent parents would either check for danger or only allow their child to continue under adult supervision, the same outcome was held in Simkiss v Rhondda Borough Council [5] .

Lord Waltersmiths’ contractors’ displayed signs on the outside of the fence, under section 2 (4a) of the 1957 act, to discharge liability a sign must warn of a danger and allow the visitor to be relatively safe, whereas an exclusion notice aims to prevent a visitor from claiming in respect of a breach (Bermingham, 2002). In the case of Ashdown v Samuel Williams and Sons [6] it was held that a notice brought to the claimants’ attention excluding liability is sufficient to exclude liability. Since then the Unfair Contract Terms Act (1977) has reduced the extent to which an occupier can restrict or remove liability due to negligence. The act prevents an occupier from restricting liability for death or personal injury if caused by negligence; it also proposes that other damage or loss cannot be excluded against unless the notice satisfies the requirement of reasonableness (Bermingham, 2002).

It can be assumed the notices were brought to the attention of the children; however it neglected to identify the danger therefore voiding the contractors’ attempts to bar recovery. It tried to exclude liability for damage and injury, which if caused by negligence is illegal, as part of the contractors’ fence was in a state of disrepair it could be argued they had been negligent in providing a satisfactory level of care to the children and would owe damages for personal injury and property.

Potential defences arising include contributory negligence and volenti non fit injura. The 1957 act section 2(3) dictates if an occupier has breached their duty of care it’s acceptable to take into account the level of care a reasonable visitor can be expected to take in their own safety (Elliott and Quinn, 2003). Gough v Thorne [7] found very young children can’t be accused of contributory negligence, only in circumstances where the child is of an age where they can be expected to take precautions can they be guilty of contributory negligence. Volenti can be described as when a person voluntarily agrees to take the risk at their own expense, usually in the form of reading a warning sign, the sign must meet the guidelines explained earlier. The contractors will be unable to claim contributory negligence as the case is dealing with children; also volenti is out of the question as the contractors notice failed to fulfil the legal requirements.

From the evidence presented it’s clear the contractors posses enough control of the site to be occupiers. They would be at fault as it’s acceptable for Lord Waltersmith to employ them to carry out the work and expect it be carried out properly, therefore discharging his liability. The site provided an allurement to the children and the outcomes of previous case and statute law suggests the contractors did not provide a high enough duty of care. The notices while visible were insufficient to exclude liability. Therefore under the 1957 act the contractors would be liable to pay damages for personal injury and damage to property.

Vicarious liability can be defined as one person being made liable for a tort committed by another (Cooke, 2009). Usually occurring when an employer is liable for torts committed by their employees. If the employee is an independent contractor they are not liable, the tort must be committed in connection with their employed duties (Bermingham, 2005). Vicarious liability is often justified as an employer has control over an employee, so they should bear some of the accountability especially when profiting from it (Elliott and Quinn, 2003). Vicarious liability is an example of strict liability as the employer doesn’t have to be at fault, but can be made liable regardless (Cooke, 2009).

To decide if someone is an employee or an independent contractor they must fit within a guideline. Originally control played a role in distinguishing between employees and independent contractors, with increasing specialised skills; control is less of a factor. Following the case of Ready Mixed Concrete (South East) Ltd v Minister of Pensions [8] it was stated that for a contract of service to exist, three criteria must be met. Firstly an employee must agree to provide work in return for payment, secondly they must agree to be under the employers control, finally the rest of the contract terms must be consistent with the existence of a contract of service (Elliott and Quinn, 2003). However the following year the courts took a different approach in the case of Market Investigations Ltd v Minister of Social Security [9] where the case was based on whether or not the worker was providing a service as a person in business on their own account (Cooke, 2009). Since these cases the courts have abandoned the rules and address each case based on individual facts. Relating these factors to the case it is clear that Smith is an employee of Lord Waltersmith, under his control, providing a service in return for payment.

If Smith’s actions are committed outside of his working duties he would be held liable. Lord Waltersmith would be liable if Smiths actions were within his working obligations. Many cases have tested whether or not employees’ actions are within the course of their employment such as Kay v I.T.W Ltd [10] where it was held that an employee carried out another task in order to complete their working duties. The basic test if an act was committed in the course of duty is from the book Salmond on torts, where it’s explained that as long as an employees’ actions were closely connected with their task, then the employer could be liable (Elliott and Quinn, 2003). Since then this has been challenged many times with differing outcomes, the courts are looking for a close connection in the employees duties and the tort committed.

Whilst working Smith was patrolling the contractors’ site his dog attacks and bites the site manager. Keel is a lawful visitor to the grounds and has a right to be there. He’s protected by section 1 (2) of the Occupiers Liability act 1957 and as a legal visitor is owed a duty of care. Keel is working for the contractors, unless stated in the contract documents, there exists an implied permission to enter and thus a duty of care, furthermore as a result of Sole v W.J.Hallt Ltd [11] Keel would be allowed to make a claim either in contract or under the 1957 act (Bermingham, 2005). Smith breached the duty of care owed to Keel, Smith should have kept the dog on the lead as it’s reasonable to foresee someone may be working late, therefore negligence could come into play. Lord Waltersmith would be Vicariously Liable for the actions of Smith as he’s an employee and the incident happened in the course of his duties.

Although the contractors’ have their site on Lord Waltersmiths property and could be classed as occupiers, Lord Waltersmith is classed as the occupier as he remains in control, therefore owing a common duty of care to any legal visitors or licence’s. Under the Occupiers Liability Act (1957) Keel would be classed as a legal visitor and able to take action for negligence in the form of breach of duty of care (Bermingham, 2005).

A defence for Lord Waltersmith would be contributory negligence. The contractors’ asked Smith to patrol their site meaning it’s reasonable to expect Smith and the dog to be there. It could be argued Keel hadn’t taken reasonable car for his own safety; however it’s not reasonable to expect the dog to be off the lead, so it’s unlikely this defence would hold up in court. The other defence is Volenti no fit injura. It could be argued that asking Smith to patrol their site the contractors and Keel are voluntarily agreeing to accept any risks which arise, again this defence is unlikely to hold any weight in court. Other than the standard defences available in all tort actions, the only other option for an employer is to argue their case on details of law (Barron, 2006).

Remedies available to Keel include damages for personal injury and loss of earnings. Keel would most likely be entitled to general damages designed to compensate for what the law assumes to have resulted from a tort, including pain and distress (Elliott and Quinn, 2003). They also cover loss of earning which Keel suffered due to hospitalisation.

Vicarious Liability exists to ensure that compensation claims can be dealt with by the party most likely to have insurance, whether or not it’s directly their fault. It’s also worth remembering that in most cases when an employer is liable for an employee, the employee was carrying out duties which had an interest in the business. Due to the number of different torts committed and the differing circumstances of each, the courts will find it difficult to decide if an employee was acting in the course of their duties.