INTERNAL MEMORANDUM
To: Board of Directors, CC Ltd.
From: Project Manager, CC Ltd.
Date:
Subject: A Case Analysis of the Company’s Occupiers’ Liability
Purpose /Context
I am writing to let you know the concerns about the potential liability the company may face as a result of the events that occurred between the 1st and 5th of December 2018. As you may know, several issues regarding the foregoing topic has been encountered within our construction site between mentioned dates. Thus a critical analysis of potential legal concerns is prudent. Occupiers’ liability is a tort concept that is rather codified and regulated by specific pieces of legislation. This concept addresses liabilities that may arise as a result of an accident caused by a faulty or dangerous state of an occupier’s premise. The Occupiers’ Liability Act of 1957 imposes a duty on occupiers concerning their lawful visitors while the Occupiers’ Liability Act of 1984 imposes liability on occupiers for trespassers. These are the two primary statutes that guide this area of law in the UK. Nonetheless, the concept of occupiers’ liability was developed through common law cases and later codified into statutes according to (Payne 1958). Those who occupy fixed or movable property through lease or actual ownership owe a duty of care to the people who trespass or visit the foregoing premises. Occupiers’ liability is a concept that has a nexus with the tort of negligence. The key proposition for determining whether a duty of care exists on the part of an occupier is the reasonable foreseeability of injury as articulated in the case of Donoghue v Stevenson (1932). The foregoing case was integral to the development of negligence since it established the duty of care concept which forms the first element of negligence as a tort. Therefore, the concept of occupiers’ liability relates to the tort of negligence. A person seeking to successfully bring a claim under the occupiers’ liability principle ought to successfully demonstrate that the occupier owed a duty of care to them and that the said duty was breached (Odgers 1957). Furthermore, they ought to prove causation and show that they suffered some sought of damage or injury.
On the first fact scenario, the lorry driver who suffered extensive damage as a result of the collapse of the scaffolding on the 1st December 2018 was a visitor to CC Ltd. Therefore, the Occupiers’ Liability Act of 1957 will be relevant to the foregoing fact pattern since it is a legislation that imposes an obligation on an occupier to his lawful visitors. Section 2(1) of the Occupiers’ Liability Act of 1957 defines a visitor to be an individual given or is presumed to have been given express permission by the occupier to enter and use the premises. In a nutshell, visitors are people who have the occupier’s direct or inferred consent to be on the property. According to (Binchy 2018), a visitor ought to use the premises in a manner that conforms with the occupier’s limits. Where a visitor exceeds the permission granted by overstaying or going to places restricted by the occupier, he will become a trespasser. The lorry driver was granted permission to enter CC Ltd and the place to park the lorry was shown to him by a member of the CC Ltd staff. Hence, the lorry driver was a lawful visitor according to provisions of section 2(1) of the Occupiers’ Liability Act of 1957 and thus a duty of care is imposed on CC Ltd as the occupiers by the virtue of possession they had on the large leisure complex at the time the injury occurred. Section 1(3) of the Occupiers’ Liability Act of 1957 construes a premise to be movable of fixed property. Ownership of a premise results with actual or perpetual proprietary rights over property as it was maintained by the court in Harris v Birkenhead Corporation (1976). CC Ltd has the proprietary rights over the large leisure complex undergoing refurbishment hence for the occupiers. CC Ltd has a duty of care to ensure that their visitors are reasonably safe while using their premises for reasons permitted. The standard of care expected of an occupier is that of a reasonable person. A reasonable occupier under the circumstances ought to have made extensive steps to ensure that the safety of his occupiers is prudent. CC Ltd failed to do so and as such, they breached the duty of care owed to their visitors hence they should compensate the lorry driver for the damages suffered. Section 1(5) of the Occupiers’ Liability Act of 1984 provides for the extent of warnings as used by the occupiers. The occupiers have discharged off any kinds of liability in scenarios where they make necessary notices to warn visitors and trespassers of the imminent dangers they may encounter as they use the premises this was the position of the court in Roles v Nathan (1963). However, mere warnings cannot suffice unless the danger signs are clear to everyone according to (Jones 1984). This is also a position also echoed in court’s decision in Rae v Mars (UK) Ltd (1990). Under the circumstances, CC Ltd made warnings to the public but the sign of imminent danger was not visible. Therefore, they are liable for the damage suffered by the lorry driver on the 1st December 2018 hence entitled to compensate him therefor.
The second fact pattern that happened on the evening of the 5th December involved a group of trespassers who were minors. From a general perspective, a person who violates the law by trespassing in a property waives their right to sue for injury damages if they end up injured in the process. This position is supported by the provisions of section 2(3)(b) of the Occupiers’ Liability Act of 1957 and in the decision made in the case of Roles v Nathan (1963). However, this rule is subject to several exemptions that allow certain trespassers to seek compensation if they are wounded on unsafe premises. In cases where a trespasser is in a position to demonstrate that the occupier had the intention to harm them then they can seek compensation for the injury suffered. Moreover, when it comes to trespassing, the incapacity to sue does not apply if the trespasser is a minor according to (Bennett 2011). This is a position that was also mentioned by the court in the case of Glasgow Corporation v Taylor (1922). The foregoing exemption protects children who are wounded while wandering on unsafe properties. The idea maintained in the case of Phipps v Rochester Corporation (1955) is founded on the assumption that, despite proper warnings, children can easily walk into dangerous properties. When a minor trespass onto a property, it is not considered trespassing in the same way as that of an adult. occupiers who fail to keep their premises in a safe condition and cause harm to a child may be held liable for negligence hence the duty to compensate. A child was injured on the construction site and CC Ltd breached its duty of care towards children. Moreover, they had prior knowledge that children used to trespass into the property, and therefore a duty to exercise a higher standard of care to protect the children was already imposed on them. Hence, CC Ltd is liable for the injury suffered by one of the child trespassers and is obligated to compensate for the damages suffered.
BIBLIOGRPHY
Bennett, L., 2011. Judges, child trespassers and occupiers’ liability. International Journal of law in the Built Environment.
Binchy, W., 2018. Occupiers’ Liability: Recent Judicial Developments. Tort L. & Litig. Rev., 1, p.1.
Jones, M.A., 1984. The Occupiers’ Liability Act 1984. The Modern Law Review, 47(6), pp.713-726.
Odgers, F.J., 1957. Occupiers’ Liability: A Further Comment. The Cambridge Law Journal, 15(1), pp.39-54.
Payne, D., 1958. The Occupiers’ Liability Act. The Modern Law Review, 21(4), pp.359-374.
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