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Published: Fri, 02 Feb 2018

Liability of an occupier of premises

i) Agatha employed Daphne, a member of the Guild of Skilled Roofers, to replace the roof on Rambles. In a breeze, a roof tile, which was negligently secured by Daphne, fell off and damaged Ena’s car, which was parked in Agatha’s driveway. Ena is a salesperson who was making a call on Agatha without an appointment.

This question is concerned with the liability of an occupier [1] of premises (‘O’) for damage suffered by a claimant (‘C’) on those premises. The statutory liability is governed by the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984, and they “provide an occupier owes a duty of care in respect of dangers posed by the state of the premises or by things done or omitted to be done on them” [2] (s 1(1)). Premises under Section 1(2) of the 1984 Act, is any fixed or moveable structure, including ships and aircraft; the same as in the 1957 Act. Accordingly, (O) possesses a duty of care as proposed in Donoghue v Stevenson [3] [1932]; to ensure all who are on the property and land should be free from harm and danger. Therefore, C, although an uninvited saleswoman without permission to enter per se, who had entered by manner of “implied” licence under s.3.3.2 (a) (she was conducting her business and was not rebutted by the owner for doing so) was owed a duty of care under the Occupiers’ Liability Act 1957 (‘OLA 1957’) s 1 (2): liability to visitors. If a duty of care is breached, C cannot claim for damage to her property (car) under (s 1 (b)) of the 1984 Act. The OLA 1984 applies only to personal injury – it does not cover liability for loss of or damage to property: s.1 (8). (O) has no statutory liability because the duty of care imposed on occupiers relates to “occupancy duty” only [4] . As described in Revill v Newberry [1996] [5] , the occupier shot the burglar but was convicted under common law negligence and not the 1984 Act: the Act extends only to harm caused by the state of the premises and not the activities of those on the premises. Furthermore, the damage was caused as a result of

activities carried on by an independent contractor (D), whom (O) had hired. In addition, (O) has not discharged the common duty of care to a visitor under s.4 (a) and (b) of the OLA 1984 anyway, as she had acted reasonably in entrusting the work to D, an independent contractor who was a member of a skilled roofers Guild and as such, should have been competent (s 2 (4) (b)). D is liable and subject to the laws of negligence in common law having exercised malfeasance by omitting to secure the tile”, consequently, failing his duty under Donoghue v Stevenson and the “duty of care to all those foreseeably affected by his negligence”. [6] However, (O) is not in breach of statutory law concerned with OLA if it cannot be proven that she could have reasonably foreseen the tile becoming dislodged by negligent workmanship and an Act of God. Thus, although the 1984 Act does not include statements relating to exclusion of liability, and there is no case law directly relating to the Act, it is possible despite the case of Baddeley v Earl Granville [1887] [7] that implies that a statutory duty cannot be excluded, exclusions can apply and (O) should be free of statutory liability.

ii). Felicity, a friend of Brenda’s, was injured when a light fitting in Brenda’s flat fell from the ceiling

To assess Agatha’s statutory liability we first need to ascertain whether she is liable as an occupier or non-occupier as defined by the Occupier’s Liability Act 1957. There can be more than one occupier according to Lord Denning in Wheat v Lacon [1966] [8] ; the test is one of occupational control over the premises. Thus, as the owner of the two flats she is consequently obliged as an occupier, to provide a duty of care to see that visitors (to the property) are reasonably safe (s 2 Occupiers Liability Act 1957). Alternatively, if Agatha was “the ‘bare landlord’: where L has not created the defect in question, she is under no duty of care in tort to protect his tenant and others from dangers on the premises she has let: Cavalier v Pope [1906] [9] “. She will, however, owe them a duty of care under the Act s.2 (1) and 2(2) for “visitors” to these common parts of the building that L has not let. For an example, Cunard v Antifyre [1933] 1 KB 551: D owned a block of flats. He let the flats to tenants, but retained possession of the roof. A piece of guttering from the roof fell through the skylight of a kitchen and injured the wife of a subtenant. D was held liable on the ground that, being in control of the roof, he owed a duty of care to prevent it from becoming a source of danger to those foreseeably affected.

The terms of the tenancy agreement are clearly the starting point for any examination of the landlord’s duties regarding the state of the demised premises [10] . The most widely understood of these are those imposed under section 11 of the Landlord and Tenant Act 1985, which states that L is liable for the upkeep of the structure and exterior of the property as well as the installations for the supply of essential services including those associated with space Heating and heating water. For liability to be present however, L is required to possess

knowledge of the defects or at least an inclination of the issues.

Agatha is liable under 3.2.1 of the Defective properties Act 1972 however, to provide a duty of care as a landlord ‘to all persons who might reasonably be expected to be affected by defects in the state of the premises’ (s.4 (1) DPA); to damage resulting from a defect in a part of the premises which have been let. However, unlike OLA, liability is not dependent on actual knowledge of the defect – by virtue of s.4 (2) DPA L will owe the duty if ‘he ought in all the circumstances to have known of the relevant defect’: Sykes v Harry [2001] QB 1014. The implication is that the duty covers both personal injury and damage to property (S.4 (1)), and there are no exclusions per s.6 (3) DPA.

iii. Cassy was injured when the floor of her house, Greengates, gave way owing to defective materials used in the conversion work by Agatha. Agatha had obtained the materials from a reputable supplier and could not have known that they were defective.

Agatha is liable under the Defective Premises Act 1972 (‘DPA’) under 2.2 s.1, as Greengates is a dwelling. Furthermore, the work she conducted was by way of a conversion of an out building (S.1 (1)) and this was a provision. Accordingly, there coincides a duty to build dwellings properly; and a duty to care for the buyer under 2.2.2 s.1(1)(b). The duty is to see that the work which is taken on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed (2.2.3) by reference to Bayoumi v Protim Services [1996] [11] . It is clear that the collapsed floor has led to the house becoming unfit for habitation as the materials were not “proper” for the work. However, the duty is stricter than a duty of care as in Donoghue v Stevenson [12] [1932], as the statute is absolute: if the materials are not ‘proper’, it will be no defence that the defect was undiscoverable (2.2.3). Agatha had failed in her duty under the DPA 1972 and is thus liable, regardless of whether she believed they were “proper” due to the reputation of the supplier. This failure is a regulatory one and as such rebuts the necessity of mens rea having to be proven as in Callow v Tillstone (1900) [13] . His conviction was upheld as the offence was one of strict liability and it mattered not how diligent he had been in his belief was irrelevant and his conviction upheld.

(C) will need to prove that Agatha was at fault and that (C) suffered damage or loss as a result. Agatha may argue that Cassy, as the new owner, had signed an acceptance that the building was fit for purpose; however, agreements excluding or restricting liability under the DPA are void under s.6 (3) DPA (2.2.5). Furthermore, “the old rule that, if the builder was also the seller of the property, he would incur no liability in tort once the property had been sold” was abolished by s.3 Defective Premises Act 1972 (‘DPA’) (2.1.1). The claim will also be subject to Batty v Metropolitan Property Realisation [1977] [14] which held that the unfitness for human habitation could refer to “prospective consequences” as well as to current defects and that of Andrews v Schooling [1991] [15] . However, there is no statutory defects liability period whereby the contractor has a positive obligation to rectify defects. Rather, it is usual practice for the parties to agree a defects liability period as a matter of contract. The period is typically 12 to 24 months for general construction contracts [16] and S.1 (5) states that time begins to run, for the purposes of the Limitation Acts 1980, at the time when the dwelling was completed. The sale of Greengates was two years previously and may well fall out of the time limit for claims under the Limitation Act 1980.

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