Don’t Swing From the Chandelier then Sue

‘When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters, you invite him to use the staircase in the ordinary way in which it is used’. These words of Lord Justice Scrutton in the case, The Calgrath, are as true today as they were then! The truth is that even though you invite visitors to your home and would want them to feel relaxed, you don’t generally give them the freedom to do as they please in your sanctuary. So if they go off on a frolic of their own, and do something totally unexpected resulting in them being injured on your premises, the question that arises is whether or not you would be liable for their injury.

Kids will be kids, and as such, the law requires that the occupier must be prepared for children to be less careful than adults. Accordingly, it will not be a defence for an occupier to say that ‘the child was a busy body and is to be blamed for his own injury’, if it is that the occupier did not fulfill his duty to remove objects or conditions from the premises that could be inherently dangerous to children.

What if the occupier warned the visitor of a particular danger on the premises, but that danger still resulted in the visitor being damaged? That warning alone without more from the occupier would not be enough to absolve the occupier from liability, unless in those particular circumstances, it was enough to enable the visitor to be reasonably safe. In one case, the Court found that twelve clear, reasonably positioned “Caution – Wet Floor” signs placed around a wet area at an airport, were sufficient warning to make the premises ‘reasonably safe’. The Court found that the sole cause of the injury to the claimant, who had slipped on the premises, was her own failure to do what was reasonable to safeguard herself.

Section 3 of the Occupier’s Liability Act provides that an occupier of premises owes a common duty of care to his visitors. The common duty of care is the duty of the occupier to take such care as in all the circumstances of the case is reasonable to ensure 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.
Section 37 of the Consumer Protection Act is also relevant in considering occupier’s liability in the context of commerce. This law indicates that a person shall not by reference to a term in a contract, a general notice or a notice to particular persons exclude or restrict his liability for personal injury or death resulting from negligence. In relation to other kinds of losses (i.e. losses other than death and personal injury), only reasonable exclusion notices or contract clauses will be upheld by a court.

Where the owner of the property is in possession of it, he will be deemed to be the occupier of the premises. If the property is leased to a tenant, the tenant is deemed to be the occupier of the premises. In situations where the landlord is responsible for the maintenance or repair of the rented premises, but he defaults on his obligation resulting in injury to a visitor, then the landlord may be (solely or jointly with the tenant) liable to the visitor for the injury.

The occupier of premises also owes a duty towards a trespasser where he knows that the trespasser is on his premises or would come onto his premises, and also knows of physical facts in relation to the premises, or of some activity carried out on the premises, which constitutes a serious danger to persons. In these circumstances, the occupier has a duty to take reasonable steps to enable the trespasser to avoid the dangers.

In the UK case, Harvey v Plymouth City Council, the Court of Appeal reversed the decision of the judge at first instance, thereby dismissing the claim of a young man, who had injured himself in reckless late night horseplay on the Council’s land. In doing so, the court confirmed that a landowner (occupier) owes a duty under the Occupier’s Liability Act only to those who use its land within the terms of the licence or permission granted to them by the landowner (occupier). In deciding whether the young man was a visitor, the Court said that the question was not whether his activity might have been foreseen, but whether it had been impliedly assented to by the Council. The court decided that the young man did have implied permission to use the premises, created by the Council’s conduct in allowing the land to be used. However, the permission was for general recreational activity and extended to normal activities carrying normal risks. The implied permission did not extend to reckless activities such as running around in the dark whilst drunk, so the young man was not a visitor at the time of the accident.

What does the Harvey v Plymouth City Council decision mean?

If someone behaves irresponsibly, he has to take the consequences of his actions, serious though they may be. However, occupiers of premises need to make sure that appropriate safeguards are in place to protect those using their property in the permitted fashion. There is also the practical point that, persons or entities in possession of properties need to be aware of their status as ‘occupiers’ of such premises and where they may have a resulting occupier’s liability under the Occupier’s Liability Act.

This article is for general information purposes only and does not constitute legal advice.

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