Reviews case law on the occupier's duty of care to trespassers under the Occupiers' Liability Act 1984 s.1, including the issues that apply where the trespasser engaged in risky behaviour, was a child, and where the property was inherently dangerous

Pawlowski, Mark

English

Greenwich Academic Literature Archive

Greenwich Academic Literature Archive (GALA)– the University of Greenwich open access repositoryhttp://gala.gre.ac.uk__________________________________________________________________________________________Citation for published version:Pawlowski, Mark (2007) Dizzy heights and occupiers' liability. The Legal Executive, August. pp. 26-28. ISSN 0024-0362Publisher’s version available at:__________________________________________________________________________________________Please note  that  where  the  full  text  version provided on GALA is  not  the  final  published version, the version made available will be the most up-to-date full-text (post-print) version as provided by the author(s).  Where possible, or if citing, it is recommended that the publisher’s  (definitive) version be consulted to ensure any subsequent changes to the text are noted.Citation for this version held on GALA:Pawlowski, Mark (2007) Dizzy heights and occupiers' liability . London: Greenwich Academic Literature Archive.Available at: http://gala.gre.ac.uk/1386/__________________________________________________________________________________________Contact: gala@gre.ac.ukLegal Briefing26 THE LEGAL EXECUTIVE JOURNAL AUGUST 2007 www.ilexjournal.comDizzy Heights andOccupiers’ LiabilityThree recent cases have sought to clarify theextent of an occupier’s duty of care owed totrespassers under the Occupiers’ LiabilityAct 1984. In two of these cases, liability wasdenied largely because the relevant dangerhad arisen from the trespasser’s ownactivities as opposed to the actual state ofthe premises. In the third case, the occupierwas held to be in breach of the duty of careimposed under the 1984 Act because theproperty itself was inherently dangerousdespite the trespasser (a 12 year old boy)being engaged in dangerous behaviour.The 1984 ActSection 1(1)(a) of the Act makes clear thatthe relevant duty of care owed by theoccupier to trespassers is confined to any riskof suffering personal injury on the premises“by reason of any danger due to the state ofthe premises or to things done or omitted tobe done on them.” Section 1(3) provides thata duty is owed to the trespasser if theoccupier: is aware of the danger or has reasonablegrounds to believe that it exists (s.1(3)(a)) knows or has reasonable grounds tobelieve that the trespasser is in the vicinityof the danger concerned or that he maycome into the vicinity of the danger(s.1(3)(b)), and the risk is one against which, in all thecircumstances of the case, he mayreasonably be expected to offer the othersome protection (s.1(3)(c))The duty is to take such care as is reasonablein all the circumstances to see that thetrespasser does not suffer injury on thepremises by reason of the danger concerned.The obligation to take reasonable care may,in appropriate circumstances, be dischargedby taking such steps as are reasonable to givewarning of the danger or to discouragepersons from incurring the risk.AdultsIn Siddorn v. Patel [2007] EWHC 1248 (QB),the claimant sought damages from herlandlord for injuries sustained whilst dancingon a garage roof. The claimant was one ofthe tenants of a first floor flat which adjoineda garage, which had a flat roof and twoskylights covered by corrugated perspex. Theonly means of access from her flat onto theroof (which did not form part of her tenancy)was through a window within the flat. Duringa party at the flat, the claimant was amongseveral people who had climbed out onto theroof and, whilst dancing around one of theskylights, she inadvertently stepped onto theperspex cover and fell though it. Her claimagainst the landlord for negligence andbreach of duty of care under s.1(1)(a) of the1984 Act alleged that the skylight was unsafe(in not having a suitable cover) and that noadequate warning had been given of theunsafe condition of the roof. In response, thelandlord argued that the roof did not comewithin s.1(1)(a) because the danger to theclaimant had arisen from her own activity indancing around the perspex cover withoutlooking carefully at what she was doing.Not surprisingly, the court rejected theclaimant’s argument. The duty of care underthe 1984 Act could only arise if the dangerreferred to in s.1(1)(a) was due to the state ofthe premises and not a claimant’s activity.There was nothing to suggest that the coverProfessor Mark Pawlowski examines recentcase law on the distinction between “activity”dangers and “premises” dangers under theOccupiers’ Liability Act 1984www.ilexjournal.com AUGUST 2007 THE LEGAL EXECUTIVE JOURNAL 27was unsuitable or in a state of disrepair. Thedecision accords with a number of earlierauthorities which establish the propositionthat the 1984 Act is not engaged where theinjury is sustained because the claimantchooses to engage in an activity with inherentdangers and not because the premises are ina dangerous state. In Donoghue v. FolkestoneProperties Ltd [2003] QB 1008, for example,a young adult had dived into a harbour andstruck his head on an underwater pile. LordPhillips (at 1019) observed:“There are some features of land that arenot inherently dangerous but which maytempt a person on the land to indulge inan activity which carries a risk of injury.Such activities include cliff-climbing,mountaineering, skiing, and hang-glidingby way of example. It does not seem tome that a person carrying on such anactivity can ascribe to the ‘state of thepremises’ an injury sustained as a result ofa mishap in the course of carrying on theactivity – provided of course that themishap is not caused by an unusual orlatent feature of the landscape.”Similarly, in Tomlinson v. Congleton BoroughCouncil [2004] 1 AC 46, a young personsustained severe injuries by diving into astretch of shallow water. Lord Hoffmann said(at para. 27):“[The claimant] was a person of fullcapacity who voluntarily and without anypressure or inducement engaged in anactivity which had inherent risk. The riskwas that he might not execute his diveproperly and so sustain injury. Likewise, aperson who goes mountaineering incursthe risk that he might stumble or misjudgewhere to put his weight. In neither casecan the risk be attributed to the state ofthe premises. Otherwise any premises canbe said to be dangerous to someone whochooses to use them for some dangerousactivity.”Most recently, in Maloney v. Torfaen CountyBorough Council [2005] EWCA Civ 1762, theclaimant sustained injuries when he stumbledover an unfenced retaining wall and fell downa sloping grass bank onto a concrete floor ofa pedestrian subway. He was drunk at thetime of the accident. There had been twoprevious incidents involving people fallingdown the slope, in particular an incident thathad occurred less than one month prior tothe claimant’s accident, where the injuredparty had suffered a fatal fall. The Court ofAppeal, agreeing with the trial judge,concluded that the accident had occurred asa result of a danger due to the state of thepremises. Interestingly, the contraryargument, namely, that the accident wascaused by the claimant’s “own foolhardyactions . . . when drunk”, was treated asbeing relevant only to the issue ofcontributory negligence and not causation. Inthis connection, the trial judge had found theclaimant two-thirds contributory negligent forwhat had happened. In the end result,however, the council was absolved of liabilityon appeal because it had not been shownthat it knew (or had reasonable grounds tobelieve) that the claimant might have comeinto the vicinity of the danger within themeaning of s.1(3)(b) of the 1984 Act. Children Two recent cases are of particular interest. In Keown v. Coventry Healthcare NHS Trust[2006] EWCA Civ 39, an 11 year old boy had been climbing the underside of a fireescape at the trust’s hospital premises whenhe fell to the ground and was badly injured.In defence, the trust argued that the fireescape was not itself dangerous and that anydanger was due to the boy’s activity on thepremises. Longmore L.J. concluded thatpremises which were not dangerous from thepoint of view of an adult could, nevertheless,be dangerous for a child. The question wasone of fact and degree and much woulddepend on the age of the child and his abilityto recognise the danger. Thus, “injurysuffered by a toddler crawling into an emptyand derelict house could be injury sufferedby reason of a danger due to the state of thepremises” whereas injury suffered by an adultin the same circumstances would probablywarrant a different conclusion: ibid, para. 12.The same could be said of banisters orrailings with spaces wide enough to allowonly a child’s head to be trapped betweenthem. However, a child’s choice to indulge ina dangerous activity could not be ignoredsimply because he was a child. In the instantcase, the boy was 11 years old. Moreover, hewas aware of the risk of falling and knew thatwhat he was doing was dangerous. In thesecircumstances, the relevant danger could notbe said to arise from the state of the premises– it was clearly the result of what the boy haddeliberately chosen to do. In particular, it wasapparent that there was nothing inherentlywrong with the fire escape in the sense ofhaving a physical defect or structuraldeficiency. Interestingly, the court went on to considerthe trust’s potential liability had the fireescape been found to be inherentlydangerous. In these circumstances, the courtintimated that the claimant could havebrought himself either within s.1(3)(a) of the1984 Act (because the trust knew that thefire escape was unguarded and unfenced) ors.1(3)(b) (since the trust knew that childrenplayed in the vicinity of the unguarded orunfenced fire escape). The court doubted,however, whether the claimant could havesucceeded under s.1(3)(c) because it wouldnot be reasonable to expect the trust to offerprotection from the risk. According toLongmore L.J., if such protection were foundto be appropriate in relation to a normal fireescape, occupiers would also be required tooffer the same protection from falling fromdrain pipes, balconies, roofs, windows andtrees on land. This would be taking things toofar.The decision in Keown may be contrastedwith the earlier case of Young v. Kent CountyCouncil [2005] EWHC 1342 (QB) involving ayoung boy, aged 12, who had climbed onto aflat roof of a school building in order toretrieve a football. He had climbed onto theroof using the flue of an extractor fanattached to the side of the building and wasinjured when he deliberately jumped up anddown on a skylight and fell through it. Theskylight was brittle and, consequently,inherently dangerous for a young child. Thejudgment of Morison J. suggests that thedanger was attributable to the state of theroof itself rather than the claimant’s ownactivity in climbing onto it and jumping ontothe skylight. The council knew that childrenregularly climbed the flue onto the roof andthere was a low cost solution to the problem,which involved fencing off the area. For thesereasons, therefore, there had been a clearbreach of duty under the 1984 Act. Thechild’s own mischievous behaviour (i.e., inclimbing onto the roof and jumping on theskylight) was characterised as going to theissue of blame in assessing his contributorynegligence. On this point, the claimant’sdamages were reduced by 50 per cent toreflect his responsibility for the accident.In the course of his judgment, Morison J.intimated that the claim would have failedhad the claimant not been a child, since thedanger would not then have posed asufficient risk of causing injury to an adulttrespasser. In this connection, the Siddorncase, referred to above, confirms thatdifferent factors will operate where the courtis concerned with an adult intruder. InSiddorn, the case was characterised asinvolving an “activity danger” as opposed to a“premises danger”. In particular, the courttook into account the fact that the claimant(and her friends) were grown up, sensiblepeople who had gone outside onto the roofwhen it was dark and when they were notentirely sober. Essentially, the accident hadoccurred as a result of the claimant dancingaround the skylight without taking propercare. ConclusionSeveral conclusions can be drawn from thecase law. It is apparent that differentconsiderations will apply depending onwhether the trespasser is an adult or child. Inthe case of an adult, the court is unlikely tobe sympathetic where the injury has beencaused because the claimant has chosen toindulge in an activity involving inherentdangers. In these circumstances, assumingthe premises contain no latent or unusualdangers, the claim is almost invariably boundto fail. Child trespassers may also deliberately courtthe risk of injury associated with a particularfeature of the premises, which may beOccupiers’ Liabilitycontinued overleafMark Pawlowski is a Barrister and Professor of Property Lawat the Department of Law, University of Greenwich, Londondangerous to them but not adults. Here, theage of the trespasser may be relevant indetermining whether the danger isattributable to the state of the premises.Although a flat roof is not by itself a dangersimply because a young child could fall off it,a lattice walkway which might trap a toddler’sfoot may be considered inherently dangerousto very small children. As Longmore L.J.observed in Keown, the question is one offact and degree based on all thecircumstances of the case and, although insome cases the child trespasser may have nocapacity for discernment at all, it does notfollow that the premises must always bemade safe for very small children. As LordM’Laren observed in the Scottish case ofStevenson v. Glasgow Corporation (1908) SC1034, at 1039:“In a town, as well as in the country, thereare physical features which may beproductive of injury to careless persons orto young children against which it isimpossible to guard by protectivemeasures . . . Now, as the common law isjust the formal statement of the resultsand conclusions of the common sense ofmankind, I come without difficulty to theconclusion that precautions which havebeen rejected by common sense asunnecessary and inconvenient are notrequired by the law.” In accordance with this principle, it has beenheld that a person who owns a mountain inthe vicinity of a town is not required to fenceit off in case small children frequent it: Simkissv. Rhhonda Borough Council (1983) 81 LGR.460. Moreover, in child cases, as in casesinvolving adults, the relevance of theclaimant’s choice to indulge in a dangerousactivity cannot be ignored. Thus, the courtwill find little sympathy for the child who hassufficient capacity to recognise both thedanger of what he is doing and the risk ofinjuring himself. This is made clear in Keown,where the Court of Appeal was able tocharacterise the boy as having the attributesof an adult in making a genuine choice toengage in a dangerous activity. As stated inthe current edition of Winfield & Jolowicz onTort, 2006, 17th ed., at p. 419: “an adult trespasser or even a child withsufficient understanding who takes a riskwhich should be obvious to him cannotcomplain that the occupier did not takemore rigorous steps to discourage hisfolly”. The recent cases, however, reveal asignificant divergence in approach indetermining the legal consequences ofclaimant culpability. In Siddorn and Keown,the claimant’s blame precluded him fromsatisfying the threshold requirementcontained in s.1(1)(a) of the 1984 Act. Thismeant that the claim in both cases failed inlimine. By contrast, in Young and Maloney,the issue of the claimant’s misbehaviour (orfolly) was treated as a matter relevant only tothe issue of contributory negligence. Indeed,in Maloney, Laws L.J. went so far as todenounce the council’s argument oncausation as one of pure semantics andmetaphysics. In his view, the argument wassimply one which concerned the degree ofthe claimant’s responsibility for what hadhappened. As such, it was better dealt with asan argument for reducing damages. The fact that there is no specific reference tothe Law Reform (Contributory Negligence)Act 1945 in the 1984 (or 1957) Occupier’sLiability Act has not, of course, deterred thecourts from applying the principle ofcontributory negligence in determining claimsunder both statutes – a trend which (rightlyor wrongly) now appears set to continue incases concerning claimant activity whichinvolves inherent risks of personal injury.  Legal Briefing28 THE LEGAL EXECUTIVE JOURNAL AUGUST 2007 www.ilexjournal.com

Dizzy heights and occupiers' liability

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Dizzy heights and occupiers' liability

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