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TORT LIABILITY FOR PREMISES 1.6 INTRODUCTION In law, the tort liability for premises explains that land owners had no liability to other persons who were being accidently hurt or injured while passing in, through or over their land. This section of law describes the duties imposed by the law of tort on occupiers in relation to the maintenance and use of their premises. Occupiers have a duty to maintain the premises safely for the benefit of third parties on or outside premises. The occupiers also must ensure that the use of premises did not cause nuisance to other people. It is very important for business organisation to consider the tort liability for premises because business premises visited often by large number of people every day and it will give a big impact to the business occupiers. So, if the business occupiers receive a negative impact, the business activities will definitely may be potentially hazardous.

1.7 DEFINITION OF OCCUPIERS Basically, occupiers is a person who is in physical possession of premises or a person who has responsibility for, and control over, the condition of premises, the activities conducted on those premises and the persons allowed to enter those premises. From the definition, we can generally say that occupiers of premises are the owner of the land. The occupier can be more than one at a time. According to Wheat V Lacon in year 1966, an occupier was defined as the person in control of the premises at the time of the accident. Based on the case study, the occupier that is assumed was the five star hotels. The five star hotels are the places where John was invited to celebrate his friend, Vincent birthday party at the banquet hall in the hotel.

Case study: Wheat V Lacon in 1966 In Wheat V Lacon, the licensee and brewery owner of a pub were both held to be the occupiers of a pub since, under the lease, the brewery was responsible for repairs and thus controlled the state of the premises.

Case study: Harris V Birkenhead Corp in 1976 In Harris V Birkenhead Corp, the council was the occupier of a compulsorily purchased house, which was no longer resided in by previous owner. Based on the case scenario, the five star hotel is a premises involved. The five star hotel is the occupiers. It is because, the five star hotel is a place that the Vincent birthday party going to be conducted.

1.8 DEFINITION OF PREMISES On the other hand, premises are widely defined by the Act and cover not only buildings and open spaces but also any fixed or moveable structure which include any vessel, vehicle or aircraft. For example, there are many types of premises. Some of the examples include firstly, staging, scaffolding and similar structures erected on land whether affixed to the land or not; secondly, poles, standards, pylons and wires used for the purpose of transmission of electric power or communications or transportation of passengers, whether or not they are used in conjunction with the supporting land; thirdly, railway locomotives and railway cars; fourthly, ships, and lastly trailers used for, or designed for use as, residences, shelters or offices. Based on the case study, the premises that can be assumed were the hotel. It is because, the hotel is the building and open spaces where John was invited to the birthday party. To give a clear view, this is some example of the premises as well: Ø Football stadium Ø Lift Ø Ladder Ø Ship Ø Hospital Ø House Ø Pharmacy

Ø Portable caravans This has been held to include a wide variety of things including a large excavating machine in Bunker V Charles Brand in year 1969.

Case Study: Bunker V Charles Brand in 1969 The visitors knowledge of dangerous machine that he was to modify for the occupiers did not absolve the occupiers of liability under section 2(4) and (5), when the visitors fell into rollers. Based on the scenario, the five star hotel itself is the premises as well as the occupiers. The hotel building is the location for Vincent birthday party where large number of people will come and visit.

1.9 DEFINITION OF VISITORS The visitors can be describe as a person who is an entrant as of right, a person who is lawfully present on premises by virtue of an express or implied term of a contract, any other person whose presence on premises is lawful, or a person whose presence on premises becomes unlawful after the person's entry on those premises and who is taking reasonable steps to leave those premises. In addition, the visitor also is not a trespasser. Based on the case scenario, John is the visitors for the five star hotels as he was invited by his friends Vincent for birthday party. John was invited to the birthday party and the birthday party will be conducted at the banquet hall.

Case study: Greenlagh V BRB in 1969 In Greenlagh V BRB, there is no liability for injury to the visitors on bridge built under statute for owners and occupiers of land adjoining railway nor was he a visitor.

Case study: Stone V Taffe in year 1974 The duty owed to visitor who did not know that the licensee who managed a pub had exceeded permission to use it after 10.30pm.

Case study: McGeown V NI Housing Executive in 1994 There is no liability on occupier to maintain a public right of way.

1.10 THE OCCUPIERS LIABILITY TO PEOPLE ON THE PREMISES

The occupier's liability is defined as a liability of a person who controls land or building in regards to damages caused to others who enter there on. The occupier must take reasonable care to ensure that the visitor is reasonably safe for the purpose for which the visitor is on the land. The liability applicable to an occupier of premises to visitor can be described when the occupiers take a prevention steps in order to avoid any injuries and damages. Hence, the liability applicable to the occupier for the visitors can be divided into two ways which are from the negligence activities and dangerous premises.

i. Negligence activities In negligence activities, the occupiers who carry out activities on their land without taking reasonable care may be liable under the general principles of negligence.

Case Study: Ogwo V Taylor in 1987 The defendant negligently set the roof space on fire while using a blowtorch to burn off paint from weatherboarding on his house. The claimant, a firefighter was injured in the ensuing conflagration. Held: the defendant was liable as the claimant's injuries were a reasonably foreseeable consequence of the defendant's negligent behaviour.

ii. Dangerous premises In addition, the occupiers also must consider the liability applicable for the dangerous premises. The occupiers have a legal duty to maintain the structure of their premises in a reasonably safe condition. This part of law have is covered by statute. The acts involved are Occupiers Liability Act 1957 and Occupiers Liability Act 1984. The application of the act is subject to section 3 (4), and sections 4 and 9, this Act determines the care that an occupier is required to show toward persons entering on the premises in respect of dangers to them, or to their property on the premises, or to the property on the premises of persons who have not themselves entered on the premises, that are due to the state of the premises, or to anything done or omitted to be done on the premises, and for which the occupier is responsible by law.

1.11 THE EXTENT OF THE OCCUPIERS DUTY OF CARE 1.11.1 DUTY OF CARE TO THE VISITORS The occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person's property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises. The occupiers of the premise must concern about the visitors for example the safety of the visitors. It is need to be considered as the occupiers noticed that the duty of care is limited to taking reasonable care to ensure reasonable safety and only for the purpose of that visit. It means that, the occupiers consent to a visitor's presence is limited by the purpose of the visit.

1.11.2 APPLICABLE OF COMMON DUTY OF CARE The common duty of care is applied when there is a relation to: ü The condition of the premises ü Activities on the premises ü The conduct of third parties on the premises

Case study: Simms V Leigh RFC in 1969 The visitor was injured by hitting concrete wall surrounding rugby field. The occupiers not liable as injury foreseeable but so improbable that it was not necessary to guard against it. Occupiers also accepted risk of playing on field complying with bye-laws.

Case study: Cunningham v Reading FC in 1991 The occupiers liable to police injured by concrete loosened from terraces. The occupiers neglected to take precautions against clearly foreseeable acts of violent supporters.

1) Children An occupier must be prepared for children to be less careful than adults. Therefore, if an occupier admits children to the premises the child visitor must be reasonably safe.

Case Study: Glasgow Corp V Taylor in 1922 The seven year old died after eating poisonous berries in park. The occupiers knew of the berries but took no precautions against children. Held: good cause of action to proceed to trial.

Case Study: Pearson V Coleman Bros in 1948 The seven year old girl left circus tent to find toilet; walked past lions cage in separate zoo enclosure and mauled. The occupier was liable as the prohibited area had not been adequately marked off.

Case Study: Phipps V Rochester Corp in 1955 The occupier is not liable to boy aged 5 who fell into trench while walking across open ground with his sister aged 7. No breach of duty occurred as reasonable parents will not permit young children to be sent into danger without protection.

Case Study: Titchener v BRB in 1983

There is no duty owed to 15 year old walking across a railway line at night, hit by train. The visitors knew of the line, dangers involved and the need to look out for trains.

Case Study: Jolley v Sutton LBC in 2000 The occupiers was liable to boy injured repairing boat abandoned on council land. The occupiers knew of boat and that it was a danger.

2) Common calling An occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

Case Study: Roles v Nathan in 1963 The claimants were asphyxiated by fumes when they carried out flue repairs in a boiler room while the boiler was alight. Held: the occupier was not liable for their deaths; their knowledge and experience of this kind of work should have made them extinguish the boiler before starting work.

Case Study: Salmon v Seafarer Restaurant in 1983 The occupier owed same duty of care to fireman attending premises to extinguish a fire, as he owed to other visitors under s2 but the fireman was expected to exercise the skill of an ordinary fireman. The occupier was liable.

3) Warnings 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.

Case Study: White v Blackmore in 1972 One notice mentioned: "Warning to the public. Motor racing is dangerous ". This warning was effective when competitor killed whilst watching a race from the track.

Case Study: Cotton v Derbyshire Dales DC in 1994 Times LR 20 June - The occupier did not have to warn about dangerous cliffs on a high path. The danger was obvious to visitors.

Case Study: Staples v West Dorset DC in 1995

Times LR 28 April - The occupiers did not have to warn about algae which might be slippery.

4) Independent contractors Where a danger 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 will not to be answerable for the danger if in all the circumstances he acted reasonably in entrusting the work to an independent contractor and took such steps (if any) as he reasonably ought to in order to satisfy himself that the contractor was competent and the work was properly done.

Case Study: Haseldine v Daw in 1941 The engineer was liable to the visitor injured by crashing lift in a block of flats. The occupier was not liable.

Case Study: Woodward v Mayor of Hastings in 1945 The school governor was liable for negligent cleaning of steps by school cleaner.

5) Defences In defences, section 2(5) has provides that while knowledge of danger does not deprive the visitor of a remedy, the occupier will not be liable in respect of risks willingly accepted as his by the visitor (volenti non fit injuria).

Case Study: Burnett v BWB in 1973 The visitors injured by rope towing a barge he was on, snapping. A warning notice was inapplicable as he was an employee. Volenti was no defence as there was no free and voluntary agreement to the risk of injury. Damages may be reduced, under the Law Reform (Contributory Negligence) Act 1945, where the visitor fails to take reasonable care for his own safety.

Case Study: Revill v Newbery in 1996 This is a case involving a trespasser who was two-thirds contributory negligent.

6) Exclusion of liability The occupier can extend, exclude, restrict or modify the extent of his liability to visitors by agreement or otherwise, insofar as he is free to do so according to section 2(1).

Where premises are occupied for business purposes: ü Any attempt to exclude liability for death or personal injury caused by negligence, including breach of the common duty of care under the 1957 Act, is void (Unfair Contract Terms Act 1977, 2(1). ü Any attempt to exclude liability for property damage will be subject to the reasonableness test (Unfair Contract Terms Act 1977, section 2(2).

1.12 ANSWERS ON CAN THE JOHN PARENTS TAKE AN ACTION ON THE HOTEL According to the case given, John was invited by his friend, Vincent for his 21st birthday party at five star hotel. This statement have clearly state that John was the visitor and the occupier is the five star hotel. On the other hand, John had brought together his younger brother name as Alex to the party, and we can recognize that Alex was a trespasser as he was not invited to the party. The crisis occurred when while walking around the lobby, the younger brother Alex had stumble over a flower pot and fell. The accident had caused Alex suffered minor bruises and fractured his wrist bone. The parents of the two brothers would like to sue the hotel management for carelessly placing the flower pot at the lobby. After considering the factors and condition of the case given, John's parents cannot sue the hotel management under occupier's liability. It is because, Alex was only the trespasser at the premises. The parents cannot sue the hotel management due to privity of contract which only involves John and hotel management. It means that, if any accident happens to John, then the parents can sue the hotel under Occupiers Liability Act 1957 which the statue must be obeyed by the occupiers that is the hotel to provide a duty of care. Let say if John who suffers the minor bruises and wrist bone fractured, the parents can sue the hotel because under the Occupiers Liability Act 1957, the occupiers must be responsible of their visitors safety. However, in the case given, the person who was injured is Alex. The parents cannot sue the hotel management as Alex was only a trespasser who was not invited to the party. Therefore, the hotel management shall not be liable for any damages and injuries happen to trespassers. The hotel management may only be liable if the injuries and damages happened to the visitors of the premises. This is due to the hotel management is following the Occupiers Liability Act 1957 and Occupiers Liability Act 1984. As the parents is still adamant to sue the hotel management, I would advise the parents to sue the hotel management following the standard of care in negligence. As in negligence, there is an existence of a duty to take a reasonable care. The injured visitor will have to prove that the occupier failed to take reasonably adequate precautions to prevent the injuries or damages. The reasonable action is determined according to the circumstances. To relate with the case, John parents can sue the hotel management for

misplacing the flower pots at the lobby. It is because, children tend to play around at the lobby as children usually do not bother their safety and this situation is dangerous for them.

1.13 OCCUPIERS LIABILITY ACT 1957 Generally, an Occupiers Liability Act 1957 is the act for visitors. This act describe An Act to amend the law of England and Wales as to the liability of occupiers and others for injury or damage resulting to persons or goods lawfully on any land or other property from dangers due to the state of the property or to things done or omitted to be done there, to make provision as to the operation in relation to the Crown of laws made by the Parliament of Northern Ireland for similar purposes or otherwise amending the law of tort, and for purposes connected therewith. The Occupier's Liability Act 1957 imposes upon the occupier a common law duty of care. The occupier must "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 standard of care an occupier is expected to meet is the standard of "a reasonable occupier", no different from the usual common law negligence standard of care. The common duty of care is already explained above.

1.14 OCCUPIERS LIABILITY ACT 1984 Generally, an occupier Liability Act 1984 is the act for non-visitors which are trespassers. In Occupiers Liability Act 1984, this act describes the duty of an occupier of premises to people who do not have permission from the occupier to be on the premises. According to Robert Addie & Sons (Colliery) Ltd v. Dumbreck in year 1929, Lord Dunedin had give a definition of trespassers which is "A trespasser is a person who goes upon land without invitation of any sort and whose presence is unknown to the proprietor or, if known, is practically objected to."

Case Study: Robert Addie & Sons (Colliery) Ltd v. Dumbreck in 1929 The facts in this case are when coal miners operated a haulage system in their field near a public road. The system used a large wheel to haul coal ashes. The opposite end with the wheel was not visible to anyone working the electrical motor. The court found the wheel to be dangerous and attractive to children. This haulage system was surrounded by a fence, but it contained a number of gaps and was inadequate from keeping children away from the wheel. Many people used the field as a shortcut and children also played in the field. A "Trespassers will be prosecuted." sign was posted at one gate of the field and D's servants had warned both children and adults to stay out of the field to no avail. P's son was killed by the wheel after one of D's servants had set the wheel in motion. The court below had awarded damages to P reasoning that D had not taken suitable precautions to avoid accidents before activating the system.

Case Study: British Railways Board V Herrington in 1972

The claimant, a child of six, was injured when he strayed onto the railway from a public park through broken fencing belonging to the railway, whose drivers previously had reported trespassers on the line. Held: the occupiers was liable for the child trespasser's injuries since it knew of the possibility of trespassers and could have avoided the risk at „small trouble and expense' (i.e by mending the fence).

Range of duty in Occupiers Liability Act 1984 The range of duty under the 1984 Act is much constricted than under the 1957 Act. An occupier will only owe trespassers a duty to care for their safety when there is situation which: ü the danger is reasonably foreseeable, and ü the presence of the trespasser is reasonably foreseeable, and ü the danger is one that the occupier ought reasonably to guard against. The occupier may be expected to offer some protection will depend on various relevant factors, which include: * The nature of the premises * The nature of the danger * The extent of the risk * The gravity of possible injury * The age of the trespasser * The nature and character of entry for example a burglar, child trespasser or adult inadvertently trespassing * The foreseeability of the trespasser

1.15 DIFFERENCES BETWEEN OCCUPIERS LIABILITY ACT 1957 AND OCCUPIERS LIABILITY ACT 1984 Firstly, the Occupiers Liability Act 1957 is the act that lawful duty of care to the visitors and the Occupiers Liability Act 1984 is for a trespasser. Secondly, the land occupier's duty to a lawful visitor is set out in the OccupiersLiabilityAct1957 while the duty to a trespasser is in the OccupiersLiabilityAct1984.

Thirdly, the Occupiers Liability Act 1984 only apply to personal injuries whereas in Occupiers Liability Act 1957, this Act is not so limited due to in effect, the occupier carries no liability for damage to a trespasser's property. However, it considers money and it is expensive. Fourthly, Occupiers Liability Act 1957 allows the visitor to waive his protection under the Act by a clear disclaimer, subject to the provisions of the UnfairContractTermsAct1977. In Occupiers Liability Act 1984, the Act makes no such statement. It is not entirely clear why a person is allowed to waive his responsibility to lawful visitors, but not to trespassers. This is because, the 1977 Act practiced prevent any effective waiver anyway. On the other hand, the duty of care to a trespasser is declining that it would unjust to allow the occupier to lower it still further by a disclaimer. This factor have contributed to other argument which states it would be possible to get a lawful visitor to express his agreement to the terms of a disclaimer, it is not clear how one would get a trespasser to do so. Legal area 1957 Act 1984 Act Public nuisance Private nuisance Potential defendant Person(s) in control of premises Person(s) in control of premises Owner/tenant/creator of nuisance Owner/tenant/creator of nuisance Potential claimant Lawful entrants Trespassers Any member of public suffering special damage Occupiers of adjacent premises

Where damage occurred On defendant's premises On defendant's premises Anywhere outside defendant's premises On premises occupied by claimant Type of damage Personal injuries, damage to goods Personal injuries only Personal injuries, damage to property, interferences with enjoyment of premises Damage to property, interferences with enjoyment of premises, possibly personal injuries Cause of damage State of premises State of premises State of premises and activities taking place there or obstructing highway State of premises and activities taking place there Nature of liability Failure to take reasonable care of visitor's safety Failure to take reasonable care to avoid causing injury to trespassers Failure reasonably to foresee damage to claimant Failure reasonably to foresee damage to claimant

Table 1: The occupier's civil legal liability for premises 1.16 CONCLUSION

As conclusion, it is very essential for business organisation to consider the elements of torts liability for premises. Both parties should know the limitations of their contract. Therefore, if anything happen in future, the contracting party can sue for benefit due to injured or death. In torts liability for premises, often component in this tort is the occupiers, premises, visitors or trespassers. In addition, there is also statute that can be a guidance for an organisation to conduct duty of care according to the Occupiers Liability Act 1957 which is for visitors and Occupiers Liability Act 1984 which is for nonvisitors or trespassers.

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Playground Injuries: Who Is Liable? LISA C. JOHNSON, ESQ. - SEP 2010

Being “at school” can encompass a wide array of situations and places in addition to being in a classroom: transport to and from school, walking and taking a bus, lunch, after-school programs, including indoor and outdoor sports, summer school programs, group field trips, and of course, recess.

Risk of Injury Even though children may not be in the classroom during recess, there is still an expectation that a teacher or other adult will supervise the children while they are at play. Statistics found on the website Safe Kids USA show a greater need for adult supervision of children on playgrounds at school. 

Lack of supervision is associated with approximately 40% of playground injuries.

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Children ages 5-9 account for more than half of all playground-related injuries.

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Children play without adult supervision more often on school playgrounds.

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Nearly 40% of playground injuries occur during the months of May, June, and September. Negligence A recent New York case outlines some important issues related to a school becoming liable for negligence. In general, schools have a duty to adequately supervise students in their charge and can be liable for certain foreseeable injuries related to a lack of supervision. Schools cannot ensure the safety of their students, but should take steps to prevent harm to them, if they see that rough playing could cause one child to injure another. This case involved injury to a student during recess at summer school. Several third-grade boys separated from other members of their class and threw pieces of asphalt at each other. School regulations prohibited this behavior and the teacher(s) assigned to supervise them did not stop them. The incident escalated, resulting in the plaintiff‟s leg being broken and requiring several surgeries. The

Appeals Court found that there was enough evidence for the case to move forward and that the lower court should not have dismissed it. In California, a Metropolitan News-Enterprise story reports on another lawsuit against a school that was recently revived on appeal. The suit alleged negligent supervision based on an alleged sexual assault against a seven-year-old girl by her peers. The children were attending a free after-school playground program when a “kissing club” went awry. According to the article, Justice Klein wrote: “[s]chools have a special relationship to supervise children on their premises, including participants in voluntary programs, giving rise to a duty to provide children reasonable protection.” Immunity & Discretion However, not all school injuries result in school liability. The Union Recorder reports that in Georgia, a teacher was not liable for injuries sustained by a student in her class. An experiment launched a bottle into the air like a rocket. A metal pin hit a student in the eye and blinded him. The student was not wearing protective goggles. The Court found that the teacher was protected by official immunity and that she made a “discretionary judgment call.” Bullying Another area of concern is bullying. Across the country, the issue is being addressed more frequently. In Maryland, the Governor declared Maryland Bullying Awareness and Prevention Week. In Massachusetts, the Governor signed anti-bullying legislation. According to the press release, “[t]he mandated reporting requirements, anti-bullying curricula at all grade levels, and cyber-bullying components make this the most comprehensive and one of the strictest bills in the nation.” Nobody wants to see any child harmed at school or anywhere, but accidents happen and often, the courts hold schools liable for injuries perceived as resulting from negligence. Watching children closely and intervening when necessary can do a lot to decrease injuries and prevent schools from any resulting liability.

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