Occupiers Liability Acts 1957 and 1984
Occupier’s liability is a field of tort law which deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises. The 1957 act is mainly concerned with lawful visitors and provides that all lawful entrants are owed the same ‘common duty of care’. As the 1957 act was not concerned with trespassers, the 1984 was enacted to govern the duty of occupier to trespassers.
The act came into force on 1 January 1958. The act identifies the occupier first. Under section 1(2) the occupier is identified as the person occupying or the person in control of the premises, not necessarily the owner but most likely the one who could have prevented the harm. The occupier is the person who has legal control of the premises. The important aspects under this act are:
Common duty of care: The section 2(2) of the act establishes a uniform duty of care to all legal visitors. Under section 2(2) the duty is defined as "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". The occupier is allowed to set limits to the visitors like ‘what to do and what not to do’ in the premises according to the act.
Exceptions: The section 2(3)(a) of the act is in respect of children. Under section 2(3)(a) the duty of the occupier is to "be prepared for children to be less careful than adults". As children are not mature like adults to understand the warning boards in the premises, the occupier should take reasonable care with children to avoid accidents. Example case study, Glasgow Corporation v Taylor , a seven year old child died after eating poisonous berries from a bush in a park. The berries, which looked like cherries or blackcurrants, were found by the House of Lords to constitute an "allurement" to the child, who found Glasgow Corporation, which owned the park, liable.
Warnings: This is again common duty of care by the occupier. Warning of danger by sign boards or barriers is to be placed to enable safety of visitors. Section 2(4)(a) says "where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe". Example case study, Rae v Mars (UK) Ltd , it was held that where danger is extreme or unusual, it not enough for there to be a warning; a barrier or additional notice should be placed.
Independent contractors: This section tells that the occupier is not liable for the negligence of contractor. The section 2(4)(b) 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". Example case study, Bottomley v Tordmorden Cricket Club , the Court of Appeal held that, where the defendant had allowed an independent contractor to set up a pyrotechnic display on their land without checking for public liability insurance, they were liable for the injuries suffered by the claimant.
Excluding liability: The occupier can restrict liability via a notice providing warnings or condition of entry to the visitors. Section 2(5) states that there is no liability for "risks willingly accepted as his by the visitor", an application Volenti non fit injuria. Example case study Ashdown v Samuel Williams & Sons Ltd , the Court of Appeal held that an occupier could exclude liability by displaying a notice disclaiming as such, even if the claimant had not read the notice
Second and third parties to a contract entering the property: Section 3 states, where the occupier is bound by contract to allow third parties into his property, "the duty of care which he owes to them as his visitors cannot be restricted or excluded by that contract, but (subject to any provision of the contract to the contrary) shall include the duty to perform his obligations under the contract, whether undertaken for their protection or not, in so far as those obligations go beyond the obligations otherwise involved in that duty".
The House of Lords decided that occupiers owed the duty to trespassers, which was unclear in the case of British Railways Board v Herrington 1972. There after the Occupiers Liability Bill was passed to the Parliament by Lord Hailsham on 23 June 1983 thus the Act was given Royal Asset on 13 March 1984 as the Occupiers Liability Act 1984 and came into force on 13 may 1984. It covers following aspects:
Duty of care: under section 1 is the duty of care of the occupier for "persons other than [the occupier's] visitors", referring to trespassers, to take reasonable care for their safety. And under section 1(3) the duty is owed when the “occupier is aware of the danger, or has reasonable grounds to believe it exist, knows or has reasonable grounds to believe that the trespasser is near or may come to be near the danger and the risk is one which an occupier may reasonably be expected to protect visitors from". Example case study White v The Council of the City and District of St. Albans , where the claimant had taken a shortcut across the defendant's fenced-off land and fell into a trench. He argued that the defendant taking precautions to stop people getting into the dangerous area meant that he believed somebody was likely to do so, and was therefore liable. The Court of Appeal rejected this argument, saying that just because a defendant had tried to prevent people entering dangerous land did not mean that the "reasonable grounds to believe" have been satisfied.
Acceptance of risk: It’s the defence of Volenti non fit injuria, where the trespasser accepts the risk. Under section 1(6) of the Act, which provides that "no duty is owed ... to any person in respect of risks willingly accepted as his by that person". Example case study In Ratcliffe v Mc Connell , the plaintiff, who was drunk, jumped into a swimming pool marked with warning signs, suffering serious injuries after hitting the bottom. The Court of Appeal held that, because of the circumstances (jumping into an obviously shallow pool with warning signs during the winter), the plaintiff should have known of the risk and, by acting, had accepted the risk.
Warning: The occupier should be very clear to the trespassers that risk is obvious in the premises. Under section 1(5) it states "by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk".
HORSEY AND RACKLEY: TORT LAW occupier’s law. (18 march 2010) http://www.oup.com/uk/orc/bin/9780199216376/01student/annotated/occupiers_1957_annotated.pdf
Disputes are sometimes unavoidable, but that doesn’t necessarily mean to have only one place to end up, which is court. Alternate Dispute Resolution is “the alternate ways of solving conflicts" (Zeno Sustac & Claudiu Ignat, 2008). It’s not a part of Government Judiciary process. ADR is the two-way problem solving between the parties represents the informal, non binding, approach, the successful outcome of which is an agreement to “settle". Communication plays a prominent role to solve the dispute, which can also be said as negotiation. To negotiate means to “confer with others in order to reach a compromise or agreement." (Concise Oxford Dictionary 1995) or it’s a process of working out an agreement by direct communication. This method of solving disputes is becoming increasingly popular as it saves time and money. The party which is serious about settlement will engage a third party expert to assess the merits and quantum of the claim. The resolution of disputes by informal process has seen lot of benefits because the harmony of the community is maintained. There are four key methods of alternate dispute resolution such as:
Mediation, the third party advices and consult impartially with the parties to assist in bringing about a mutually agreeable solution to the problem. Mediation is facilitative. To mediate means to act as a peacemaker between disputants. “Mediation is negotiation carried out with the assistance of third party. The mediator, in contrast to the arbitrator or judge, has no power to impose an outcome on disputing parties" (Goldberg, S. B., et al. 1992). The mediator normally meets the parties separately to discuss the issue and any confidential information by the parties is not disclosed to each other. This is done to explore the in confidence of the issue by the parties. The whole of mediation is an indirect process. The main aim of the mediator is to build a relationship between the parties and the mediator, then clarifies the main issue, after which allows the party to vent their emotions and identifies the interests or needs by making an attempt to uncover the hidden agendas and identify the potential settlement options. When the mediator is working with one party the other party is set to work on specific task by the mediator. Sometimes joint meetings are set by the mediator to narrow the issues. Finally the mediation is to develop a commercially acceptable, workable agreement which can be written into binding settlement contract.
Conciliation is more interventionist or evaluative style of mediation. A conciliator can be more suggestive or more proactive. Mutually agreed parities appoint the third party who is an expert on matters of dispute and s/he will look at the evidence and listen to the arguments put forward by each side. There are no private meetings and the entire discussions takes place when both parties are present. Parties can have their legal advisor at any time of the meeting with or without the conciliator. The conciliator after studying the parties will contribute his own ideas on the merits of the case and will not make decisions, but he may make recommendations. The aim of the conciliation is to bring both parties together and discuss all aspects of the case in dispute and lead them to an amicable settlement. It’s the decision of the parties to agree on an acceptable settlement, if not they can pursue the matter in arbitration or litigation.
Adjudication is a process in which the parties submit their cases of dispute to the third party, who can be an individual or a panel for a decision. The adjudicator is a neutral individual who is not involved in the day to day running of the contract and not an arbitrator, nor a state appointed judge. The adjudicator enjoys the power by virtue of agreement between the parties and does not require cooperation of both the parties as in mediation and conciliation. The Housing Grants, Construction and Regeneration Act 1996 (The Construction Act), gave mandatory provision for adjudication which were embodied in English Law (England and Wales). The framework and minimum criteria were set in this act for adjudication under section 108*. The adjudication process takes place by serving notice, to inform the other party that a dispute has arisen and states to be referred through adjudicator. The notice should have reasonable detail about the dispute. Then adjudicator is appointed, who has been named in the contract, if not the referring party has to apply to the adjudicator nominating body (ANB) within 7 days of the notice of adjudication. The party who has been served with the notice should give a response to the referral notice. The reply can take place many a times because to set the arguments clear between the parties. The adjudicator makes decision on the matters referred to him and once the decision is made and published, the adjudicator has no power to review the judgement. He has powers only to correct clerical or other accidental errors.
Arbitration in England is governed by Arbitration Act 1950, 1975 and 1979. Again the parties’ agreement is essential before any dispute is to be settled by arbitration. According to Stephenson, Lord Justice Sir Robert Raymond provided a definition some 250 years ago which is still considered valid today (Stephenson, A. D., 1998): “An arbitrator is a private extraordinary judge between party and party, chosen by their mutual consent to determine controversies between them, and arbitrators are so called because they have an arbitrary power; for if they observe the submission and keep within due bounds, their sentences are definite from which there lies no appeal". Arbitration can be either voluntary or mandatory and can be either binding or non-binding. Non-binding arbitration is, on the surface, similar to mediation. However, the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable. The process involved in arbitration are the agreement to arbitrate in which the parties need to make an agreement with the arbitrate for solving the dispute, which is known as “arbitration agreement" by the Arbitration Act. Then by agreement of parties the arbitrator can be appointed or the court can appoint the arbitrator. Arbitrators work is to carry on the progress of arbitration and issue awards to the case. The arbitration can take any of the following procedure to solve the dispute, by documents only and no hearing, by documents and hearing and finally short procedure with a hearing. After all the procedure followed by the arbitrator, he can award the decision to solve the case but sometimes a consent award can be issued where the party is capable of enforcement in the Courts. Arbitration is a judicial process, which often proceeds in a similar manner to court based litigation.
Positives of ADR
Maintains a business relationship:
The parties are aided towards a settlement of dispute in good terms. The process such as mediation can maintain the existing business relationship.
When comparing to the trials and hearings in court which lasts years, the average mediation or conciliation lasts 1-2 days. It’s fast and effective when the parties cooperate with the mediator or conciliator.
The process saves lot money when compared to the trial costs of the court and sometime the lawyers, who is not necessary for ADR. It’s very direct for saving money and solving problems between parties.
Some clients wish to keep their disputes away from public domain. Litigation is a public domain and arbitration may become public if there is an appeal. Thus the proceedings of mediation are confidential.
ADR focuses on the interests and needs of the parties and encourages the parties to search solution for the disputes to meet the needs fairly. The court proceeds upon the rights and obligation of the law, hence low satisfaction in hearings. Thus ADR is flexible to the interests of the parties.
As ADR focuses on the interests and needs of the parties in dispute and specially the time is very flexible for meetings and discussion. Due to these factors the outcome is more satisfactory copared to trials.
Negatives of ADR
Disclose important aspects:
The main concern with the parties is that they may disclose some important aspects of their argument which might become an advantage to the other party. The strength and weakness of the parties might slip out of there tongue leading to major disturbance in settlement.
Pressure to settle:
As the settlement is given in short period the pressure builds working on specified aspect and sometimes spending over time in discussion build a lot of pressure.
Impression of weakness or liability:
When lot of communication is going on in the discussion of the dispute, somewhere there might be chances to disclose the weakness for which one can be liable.