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BUSINESS AND ECONOMIC


TORTS
Chapter 13
-3. OCCUPIERS LIABILITY

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Definitions: Occupier
An occupier is someone who has:
Physical possession of a property
Control over the activities on a
property
Access to the property
Occupiers Liability
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THE 1957 ACT LATER 1984
Replaces the common law
Consolidates the law
Imposes duties of care on occupiers
Deals with duties owed by contractors
Covers liability for injuries arising out of the state of
premises or things done or omitted to be done on them
Does not cover duties to trespassers
An occupier of premises owes the same duty, the
common duty of care, to all his visitors, except in so far
as he is free to and does extend, restrict, modify or
exclude his duty to any visitor or visitors by agreement or
otherwise
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Occupiers Liability
The law of occupiers liability is concerned with the
duty of care owed by occupiers of premises or land
toward visitors, whether invited or uninvited, who
suffer either personal injury or property damage
during the course of their visits.

An occupier is the person (not necessarily the
owner) who has control over the premises (Pg 128)

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THE COMMON DUTY OF
CARE
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 to be there

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VISITORS
People lawfully on premises
People invited or permitted to be on
premises
People using premises for certain
purposes
People with implied licences
Not trespassers
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Occupiers Liability
Historically, special rules determined who the visitor was:
a trespasser one who was there without the occupiers
permission;
a licensee a person permitted or invited to be there;
an invitee the same as a licensee except that there must
in addition have been something in the nature of a business
relationship between occupier and invitee;
an entrant as of right this covered a heterogeneous
group of people who had a right to go onto the occupiers
land, including visitors to public facilities such as parks and
playgrounds, the person who came to read the meter and
the fireman who came to extinguish a fire; or
a contractual entrant these were people who had paid to
use the occupiers premises, such as cinema goers.
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OCCUPIERS DISCHARGE
OF DUTY TO VISITORS
(a) By taking reasonable measures
e.g. repair work.
An Occupier is not liable for the
unsafe state of a lift due to negligence
of the specialist firm employed to
repair it but he remains liable when a
school cleaner leaves slippery ice on a
step (not a specialist task)
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OCCUPIERS DISCHARGE
OF DUTY TO VISITORS
(b) By giving warnings
Where a warning is enough to enable the
visitor to be reasonable safe
A visitor who ignores a warning may be
consenting to the risk or may be guilty of
contributory negligence
But a warning is not sufficient precaution in
some cases. It depends on the facts
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Occupiers Liability
Occupiers must take reasonable care and owe a
common law duty of care to ensure that anyone
(even trespassers) who comes onto those
premises is not injured
CASE: Hackshaw v Shaw (1984)
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Occupiers Liability
Trespasser sues owner for negligence
In a drawn-out case (Hackshaw v Shaw (1984) 155 CLR 614), a farmer was
troubled by trespassers stealing fuel from his property. He finally took the law into
his own hands one night when he saw a man pumping petrol into an unlit car. The
farmer had been lying in wait with two guns and, seizing his opportunity, fired shots
into the car hoping to put it out of action. Unbeknown to him, a girl was hiding in
the car below the level of the dashboard and was hit by one of the bullets.
The farmer sued for trespass but while accepting the farmer's evidence that he did
not see the girl at any time and his claim that she contributed to her injury by being
on the property for an illegal purpose, the court found the farmer was negligent.
The farmer appealed to the Supreme Court, which found that the girl was a
trespasser and was owed no duty of care because the farmer did not know she
was in the car.
Finally, however, the girl appealed to the High Court, which found that she was
entitled to damages from the farmer who should not have fired at the car because
of the risk of injury to a person even if he could not see her. The girl's
compensation was reduced by 40 per cent because the Court found that she had
contributed to the negligence by being in an unlit car at night on the farmer's
property while the driver was stealing fuel.
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DUTIES TO TRESPASSERS
Prior to Occupiers Liability Act
1984,occupiers duty to trespassers was to
act with common sense and humanity.

This required all the surrounding
circumstances to be considered, e.g. the
seriousness of danger, the type of
trespasser likely to enter and in some cases
the resources of the occupier.
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DUTIES TO TRESPASSERS
Definition of a trespasser a person
whose presence is unknown, or if known is
practically objected to

It may include the innocent as well as the
malicious.

Broadly speaking, it is a person who knows
he does not intend communication with the
occupier or anyone else on the premises.
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DUTIES TO TRESPASSERS
British Railways v Errington 1972
The facts: The local management of British Rail were aware that
children gained entry to an electrified railway line through a
broken-down fence which divided the line from land open to
the public. British Rail merely reported the matter to the police
but did not repair the fence. A child of six was injured on the
line.

Decision: The occupiers duty must be set by reference to the
particular circumstances of the trespassers. A warning may be
sufficient for an adult but it falls short of the duty of common
humanity owed to a child to safeguard it from accessible and
tempting perils (danger / threat) on the occupier's land.

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MAIN PROVISIONS OF 1984
ACT
Duty Owed
The occupier owes a duty in the following circumstances:

(a) He is aware of the danger or has reasonable grounds to
believe that it exist

(b) He knows or should know that someone is in (or may come
into) the vicinity of the danger

(c) The risk is one against which he may reasonably be expected
to offer that person some protection

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MAIN PROVISIONS OF 1984
ACT
Duty Broken
The duty is to take such care as is
reasonable in all the circumstances
to see that the person to whom a
duty is owed does not suffer
injury on the premises by
reasons of the danger.


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MAIN PROVISIONS OF 1984
ACT
Damage
The occupier can only be liable
for injury to the person. The
Act expressly provides that
there can be no liability for loss
or damage to property.

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MAIN PROVISIONS OF 1984
ACT
Warnings
The duty may be discharged by taking reasonable
steps t give warning of the danger.

A person using a right of way across land is neither a
licensee nor an invitee and is therefore not a visitor.
The occupier of the land is under no liability to
users of the right of way for failure to keep it in good
repair: Mc Geown v Northern Ireland Housing
Executive 1994. Thus the 1984 Act applies to
entrants other than trespassers.