The two occupier liability acts are, the 1957 act covers liability of occupier for injury suffered by lawful visitors. The Duty of care under the 1957 Act is only for people who have permission to be on the site (invitees or licensees) there is no duty of care for trespassers under this act. The 1984 act offers defence for trespassers as to the lawful visitor’s act of 1957. The occupier of the land owes a duty if he knows or has a rational thought as to if the ground is dangerous.
The 1957 Act is the one relating to the question on this occasion. The occupier must be selected before deciding a party which is at fault. The person with the most control other the site is the occupier according to the 1957 act therefore they are the ones who are liable. The case that represents this best is (Wheat v Lacon 1996). The case established that on one location it is possible to have more that one occupier, however the duty of care can be different for both (Giliker and Beckwith, 2008).
This means that both Lord Waltersmith and his contractors are the occupiers. A ‘common duty of care’ is owed by the occupier for everybody on site who have permission to be there, this must be equal to everybody. “A duty to take such care as in all 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. ” (Thomas Lundmark 1998, Pg34) (Occupiers liability act 1957).
The visitor must be safe on the site and not the site itself, therefore liability can be imposed when an occupier neglects to protect a visitor from an inherent danger (Gilicker and Beckwith, 2008). It is stated in the 1957 act that the independent contractors who are employed by the occupier the site are checked that they are competent with the work that they have agreed, with the occupier, they are checked to see if the work is done to a professional standard (unless technical because then the occupier may not fully understand) and to check that the independent contractors have up to date insurances.
The claimant is still possible to make an accusation towards the occupier, even after the occupier has completed their checks on the contractors. It’s okay to assume that the contractors work is of a technical nature and they have carried out the work properly and have the correct insurance. By passing all these requirements Lord Waltersmith can pass on liability to the contractors. The children West and Peat, who are ages of 9 and 10, are not considered trespassing as a greater duty of care is owed to children than to adults.
An object which poses no threat to an adult could be dangerous to a child because they are not of the age of an understanding mind, children regularly fail to appreciate dangers that are clear to an adult and are drawn to objects unaware of the inherent dangers (Giliker and Beckwith, 2008). The 1957 act states that a child cannot be a trespasser in relation to an allurement, the case that represents this point is (Glasgow Corporation v Taylor 1922) where it was held that an allurement not suitably protected constituted a breach of duty of care. Allurement is ‘The power to attract’.
Where younger children are concerned an occupier can expect the habits of prudent parents in relation to protecting their own children, (Phipps v Rochester 1955), it was decided in this case that parents would either check for danger or allow their child to continue under adult supervision. The ‘contractors’ ,of Lord Waltersmith, displayed signs outside of the site and under the 1957 act the occupiers may discharge their duty by adequate warning signs – if the warning is sufficient to make visitor reasonably safe, whereas an exclusion notice aims to prevent a visitor from claiming in respect of a breach.
Lord Waltersmiths contractors displayed signs on the outside of the fence, under section 2 (4a) of the 1957 act, to discharge liability a sign must warn of a danger and allow the visitor to be relatively safe, whereas an exclusion notice aims to prevent a visitor from claiming in respect of a breach (Bermingham, 2002). Since then the Unfair Contract Terms Act (1977) has reduced the extent to which an occupier can restrict or remove liability due to negligence.
This prevents an occupier from restricting liability for death or personal injury if caused by negligence; also other damage or loss cannot be let off against unless the notice satisfies the requirement of reasonableness (Bermingham, 2002). An assumption can be made that the children were aware of the warning signs, but if the signs failed to recognise the danger it voids the contractors attempt to bar recovery. The state of the fence was in a poor condition so it could be disputed that the contractors had been negligent to providing a reasonable level of care for the children would owe damages for injury and property.
Potential defences arising include contributory negligence and volenti non fit injura. The 1957 act dictates that if the duty of care is breached by the occupier it is acceptable to take into account the level of care a reasonable visitor can be expected to take in their own safety (Elliott and Quinn, 2003). A child who is not of an age of a sound mind and can take precautions cannot be guilty of contributory negligence (Gough v Thorne). Volenti non fit injura is a risk that is taken by a person who is willing to volunteer, but under the U. C. T. A. agreement to or awareness of a notice excluding liability for negligence does not indicate voluntary acceptance of risk.
The case is dealing with young children and the notice was not fulfilled so the contractors will be unable to claim for both contributory negligence and volenti non fit injura. The contractors are site occupiers because of how much of the site they control. Lord Waltersmith is discharged of liability because he was to expect, when employing them, that the work would be carried out in a professional manner, therefore putting the fault on the contractors.
The duty of care was not sufficient enough as the fencing was not in a bad condition and the notice did not fully fulfil the legal standards even though they was visible to the children. The contractors would have to pay for damages to personal injury and to the property under the 1957 act. Vicarious liability can be defined as one person being made liable for a tort committed by another. An independent contractor is not liable if employed, if the employee is an independent contractor they are not liable, the tort must be committed in connection with their employed duties (Bermingham, 2005).
The employer can be made liable, even though he isn’t necessarily at fault and this is an example of vicarious liability. To distinguish between employees and independent contractor’s three criteria must be met. An employee must provide a satisfactory level of work in order to receive payment, secondly the employee and the employer must agree that the employer has full control of the employee and finally the rest of the contract terms must be consistent with the existence of a contract of service (Elliott and Quinn, 2003).
A year later a different approach was made when reviewing the case of Market Investigations Ltd v Minister of Social Security. The case was based on whether or not the worker was providing a service as a person in business on their own account. (Since Smith is an employee of lord Waltersmith under his authority, providing a service in return for a payment. Whilst working Smith was patrolling the contractors’ site his dog attacks and bites the site manager. Keel is a lawful visitor to the grounds and has a right to be there. Occupier’s liability act 1957 protects keel and it states that a legal visitor is owed a duty of care.
As Keel is working for the contractors, there implies a permission to enter the site and therefore a duty of care is owed. The duty of care was breached because the dog was let off the lead by Smith and therefore he was the person to breach it. Negligence would play a part in this case because the dog being let off the lead is foreseeable as it’s reasonable for somebody to be working late. Lord Waltersmith would be Vicariously Liable for the actions of Smith as he’s an employee and the incident happened in the course of his duties.
The contractor’s do have their site on Lord Waltersmiths property and could be classed as occupiers, Lord Waltersmith is classed as the occupier because he still has full control of the site, therefore he owes a duty of care to anybody who has legal permission to be on the site. Under the Occupiers Liability Act (1957) Keel would be classed as a legal visitor and able to take action for negligence in the form of breach of duty of care (Bermingham, 2005). Contributory negligence would be a suitable defence for Lord Waltersmith.
As the contractor’s asked Smith to be on the site and guard it, it means that it’s reasonable to assume the dog will also be with Smith. Volenti non fit injura is another defence that could argue the fact that asking Smith to guard their site contractors and Keel are voluntary agreeing to accept the risks involved. Keel could sue for damages for personal injury and loss of earnings. Keel would most likely be entitled to general damages designed to compensate for what the law assumes to have resulted from a tort, including pain and distress (Elliott and Quinn, 2003).
They also cover loss of earning which Keel suffered due to hospitalisation. Vicarious Liability is to ensure that compensation claims can be handled with by the party most likely to have insurance, whether or not it’s directly their fault. When an employer is liable for an employee, the duties carried out was those of interest to the business of employee. There have been many torts committed and because each one differs the circumstance it will be difficult, for the courts, for a decision on if the course of the duties of the employee was acted upon.
