Tag: Occupier’s liability

Australian Safeway Stores v Zaluzna (1987): Case Summary

Case name & citation: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479

  • The concerned Court: High Court of Australia
  • Decided on: 10 March 1987
  • The bench of judges: Mason, Wilson, Brennan, Deane and Dawson JJ.
  • Area of law: Negligence; Duty of care, Foreseeability of risk; Liability of occupiers

This case is a famous case from Australia concerning issues of negligence and occupiers’ liability. It dealt with the question of whether a retailer may be held liable for damages if a customer is injured on his premises.

Case facts (Australian Safeway Stores v Zaluzna)

The plaintiff (Zaluzna) visited a supermarket (Safeway Stores) with the intention of buying some cheese. It was raining that day and as a result, the entrance of the shop had become wet and slippery. She slipped on the wet floor and sustained injuries.

Zaluzna brought legal action against the supermarket, alleging negligence on their part.

Issue

Did the supermarket owe a duty of care to persons entering the premises?

Judgment of the Court in Australian Safeway Stores Pty Ltd v Zaluzna

The Court concluded that Safeway Stores owed a duty of care to Zaluzna.

When businesses expect customers to come onto their premises or store and make purchases, the least that they can provide to them is a safe environment. They should exercise reasonable care to ensure the safety of invitees.

The Court’s decision emphasized that an occupier owes a general duty of care to ensure the safety of anyone who enters their premises, regardless of the person’s classification as an invitee, trespasser, or licensee. Based on the ordinary principles of negligence, the occupier is required to exercise reasonable care to prevent foreseeable harm to others.

Significance

It might be interesting to observe that occupiers’ liability used to be very complex and has evolved over time. The standard of care required of occupiers varied depending on the type of ‘visitor’ to the property. For example, the standard of care where trespassers or unlawful entrants were injured was not as demanding as the standard of care required for injury sustained by invitees or individuals invited onto the property. Special and complex rules of occupiers’ liability existed.

However, in Australian Safeway Stores Pty Ltd v Zaluzna (1987), the High Court made a significant legal decision. Instead of applying different standards of care to different classes of visitors, it was decided that ordinary principles of negligence should be imposed in occupiers’ liability cases. Even before this case, the High Court had, in a number of cases, shown an inclination towards incorporating the ordinary principles of negligence and replacing the old occupiers’ liability rules.

While giving its judgment in the Zaluzna case, the Court approved the statement of Deane J. in Hackshaw v Shaw (1984) 155 CLR 614:

“………, it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed.

All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship.

The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.”

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Hackshaw v Shaw [1984]: A Case Summary

Case name & citation: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614

  • The concerned Court: High Court of Australia
  • Decided on: 11 December 1984
  • The bench of judges: Gibbs C.J., Murphy, Wilson, Deane and Dawson JJ.
  • Area of law: Negligence; Occupier’s liability; Duty of care; Trespass to land; Contributory negligence

What is the case about?

Hackshaw v Shaw [1984] is a tort law case that revolved around issues of negligence, trespass, and duty of care. It dealt with the question of whether an occupier of property can be held liable for causing an injury, though unknowingly, to a trespasser.

Facts of the case (Hackshaw v Shaw)

The defendant, Shaw, was the owner of a farm located at Korong Vale in Victoria. There was a petrol tank at the farm which was installed for refuelling any motor vehicles used on the farm. On many occasions, it was found that the petrol was stolen at night. Therefore, Shaw decided to lie in wait near the petrol tank to catch the thieves the next time.

One night, Cox, who was driving a stolen car, went to the defendant’s farm. He was accompanied by a sixteen-year-old girl, Hackshaw – the plaintiff. Cox turned off the headlights and began to steal petrol.

Shaw, not knowing that Hackshaw was in the car, fired two warning shots with his rifle at the vehicle. Unfortunately, Hackshaw was hit who was in the front seat of the car.

As a result, Hackshaw sued Shaw seeking compensation for her injuries.

Issues raised

The main issue that laid before the Court, in this case, was whether Shaw could be held liable for the injuries sustained by Hackshaw.

Did Shaw owe a duty of care to Hackshaw despite the fact that she trespassed on his land?

Was there a breach of duty when Shaw fired at the car?

Did Hackshaw contribute to her injuries by trespassing on the land?

Judgment of the Court in Hackshaw v Shaw

The Court decided that Shaw owed a duty of care to Hackshaw to avoid injuring her with his rifle. He should have reasonably foreseen the possibility of a passenger in the car and that firing the rifle at the car was an unreasonable and negligent action.

However, it was also found that since Hackshaw accompanied Cox in entering Shaw’s property without authorization, she had contributed to the injury.

Quotes from the case

Deane J. said as under:

“All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship.

The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.

Where the visitor is lawfully upon the land, the mere relationship between occupier on the one hand and invitee or licensee on the other will of itself suffice to give rise to a duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to him or her. When the visitor is on the land as a trespasser, the mere relationship of occupier and trespasser which the trespasser has imposed upon the occupier will not satisfy the requirement of proximity. Something more will be required.

The additional factor or combination of factors which may, as a matter of law, supply the requisite degree of proximity or give rise to a reasonably foreseeable risk of relevant injury are incapable of being exhaustively defined or identified. At the least they will include either knowledge of the actual or likely presence of a trespasser or reasonable foreseeability of a real risk of such presence.”

Refer full text of the case here: https://jade.io/article/67169

Conclusion

The given case clarifies that it is possible in legal contexts that an occupier of property can owe a duty of care to a trespasser. This duty arises if it can be established that it was reasonably foreseeable that the trespasser could be injured due to the negligent actions of the occupier.

Therefore, it can be said that in certain circumstances, a duty of care may be owed to individuals who commit the illegal act of trespass. Occupiers/owners may still have a duty to exercise reasonable care to prevent harm to trespassers if it is foreseeable that their actions could cause harm. Nevertheless, the existence and extent of duty shall depend on specific case facts, circumstances, legal standards, and precedents.

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Woodward v Mayor of Hastings [1945]: A Summary

Woodward v Mayor of Hastings [1945] is a tort law case concerning the liability of a school to ensure that its premises are safe for the children. Especially, where the safety of the work done by an independent contractor is very easy for the school to check, it might be incumbent upon it to do so. Given below are the case details.

Case name & citation:Woodward v Mayor of Hastings [1945] KB 174
Court and jurisdiction:Court of Appeal, England & Wales
Year of the case:1945
The learned judge:Du Parcq LJ
Area of law:Occupier’s liability; Contractors doing simple jobs

Facts of the case (Woodward v Mayor of Hastings)

After the snow had been cleaned off the school steps, they were still icy, and a child aged twelve was injured there. The cleaner had negligently left the steps in an icy condition. She had brushed away the ice but no material was put down to neutralize the ice left behind and as a result, the child slipped. An action was brought against the school’s board of governors for negligence. It was alleged that the governors were liable for the negligence of the cleaner.

Issue raised

Could the school’s board of governors be held liable for the acts of the cleaner (a contractor)?

Did the governors breach their duty owed to the children?

Judgment of the Court in Woodward v Mayor of Hastings

The occupiers (governors of the school) were held responsible because they did not take reasonable steps to ensure that the work had been performed properly.

Cleaning a step does not require any particular skill. There was no special knowledge needed to identify the dangers involved with an icy step. This was not a technical issue, and the occupiers should have been able to inspect the cleaner’s work and identify this risk. But since they did not check the work of the cleaner, they had failed to discharge their duty of care and were thus, liable.

The case was not like Haseldine v Daw [1941] where the work was too technical for the occupiers to check.

The reasoning behind the decision

Occupiers are more likely to be held liable for the acts of independent contractors where the task entrusted to them is routine and could be performed by anyone. They are less likely to be held accountable for specialized tasks, in which case their primary responsibility is to ensure that the person chosen to perform the task is competent.

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Gwilliam v West Hertfordshire Hospitals NHS Trust [2002]

Gwilliam v West Hertfordshire Hospitals NHS Trust [2002] is a UK tort law case concerning the duty of an occupier to check the insurance position of independent contractors for dangerous activities.

Case name & citation:  Gwilliam v West Hertfordshire Hospitals NHS Trust [2002] EWCA Civ 1041; [2002] 3 WLR 1425; [2003] QB 443
Court and jurisdiction:Court of Appeal (Civil Division), England & Wales
Decided on:24 July 2002
The bench of judges:Lord Woolf CJ, Lord Justice Waller and Lord Justice Sedley
Area of law:Occupier’s liability; checking the competence of contractors

Facts of the case (Gwilliam v West Hertfordshire)

A hospital trust had given a contractor permission to run a fundraising fair on its premises that featured a “splat wall.” The visitors would bounce off a trampette and become attached to a wall by means of Velcro material. The splat wall wasn’t functioning properly, which resulted in injury to a visitor. It was later discovered that the contractor’s public liability insurance had expired a few days before the injury and thus, had no cover for the injury.

The settlement between the claimant and the contractor was made for £5000. But the claimant sued the trust in negligence for the difference between the settlement amount and the amount that would have been received had the contractor been insured. It was argued that the hospital owed a duty to take reasonable care in selecting competent contractors and ensuring that they were insured.

Issue

Did the hospital trust owe a duty to check the insurance position of the independent contractors?

Judgment of the Court in Gwilliam v West Hertfordshire

According to the Court of Appeal, the hospital owed a duty to its visitors to keep them reasonably safe from all the activities on its premises. In addition, the hospital had a duty to make sure that independent contractors conducting fairground rides on its premises had enough insurance and were competent. But it was found that the trust had discharged its duty by requiring in its contract with the contractor that the contractor’s insurance ought to cover liability to members of the public using the fairground. In other words, it had discharged its duty by asking the contractors about their insurance position. An actual inspection of the insurance documents to check the validity dates was not needed.

Governing rules behind the decision

Many a time, occupiers can avoid liability for damage caused by their contractors if they take reasonable precautions to ensure the competence of the contractor. Obviously, it is difficult for ordinary people who have no knowledge of technical work to be certain that they are hiring competent individuals, but a simple inquiry, possibly to local trade associations or local authorities, may help to clarify the situation.

As far as insurance is concerned, it might be an important and relevant factor in determining the competence and appropriateness of the contractor for a risky or dangerous event that involves members of the public.  Occupiers should take steps, that are reasonably practicable, to check that the contractors/event organizers have adequate public liability insurance. This can be done with simple inquiries from reputable persons/organizations. In normal circumstances, it is not expected of them to ask for insurance papers in evidence.

Another case

Here, you might want to consider another case on similar grounds. This was Bottomley v Todmorden Cricket Club [2003]. The defendants were held accountable for an accident caused by contractors putting on a firework display. Because this was an ‘ultra-hazardous’ activity, the occupiers were required to look into the competency of the contractors as well as whether they were insured. They had failed to fulfill this duty.

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Bottomley v Todmorden Cricket Club [2003]

Case name & citation: Bottomley v Todmorden Cricket Club [2003] EWCA Civ 1575

  • Court and jurisdiction: Court of Appeal (Civil Division), England & Wales
  • Decided on: 07 November 2003
  • The bench of judges: Lord Justice Brooke, Lord Justice Waller, Lord Justice Clarke
  • Area of law: Occupier’s liability; contractors taking assistance of a helper

What is the case about?

Bottomley v Todmorden Cricket Club [2003] is a tort law case on occupiers’ liability. It says that checking insurance might be an important element when determining if an occupier has taken reasonable care in selecting contractors.

Facts of the case (Bottomley v Todmorden Cricket Club)

In November 1997, the defendant Cricket Club engaged a two-man stunt team named Chaos Encounter to perform a pyrotechnic show as part of a fund-raising event. Chaos Encounter had requested the claimant to assist them. A pair of mortars, which were metal tubes set into the ground and filled with petrol, were included in the display. Primers in the form of plastic bags filled with gunpowder were to be dropped into the mortars by the claimant. The intent was that the mortars would then be fired using an electric charge from a car battery operated by another member of the team and connected to the mortars through a wire. While the claimant was lowering one of the bags into the mortar, the contents of the tube exploded and caused him serious burns.

What was the issue?

Was the defendant Cricket Club liable for the injuries sustained by the claimant?

Judgment of the Court in Bottomley v Todmorden Cricket Club

The judge at first instance determined that the entire operation was extremely dangerous, that Chaos Encounter was an amateurish organization operating in a field that required the highest degree of professionalism if danger was to be avoided, and that the defendant Cricket Club had failed to exercise reasonable care in selecting them. Given the facts, the defendant was liable for the negligent system that Chaos Encounter had followed and which led to the claimant’s injuries. 

While addressing the appeal, the Court of Appeal confirmed that the club owed a relevant duty of care to the claimant. It was held that it is possible that an occupier might be held liable for the torts of an independent contractor if he failed to exercise reasonable care in satisfying himself that the contractor was competent and that the work was properly done. The club ought to have taken sufficient care to select competent and safe contractors for the conduct of the dangerous pyrotechnics display on its land and it had failed to do so. One of the reasons was the absence of public liability insurance. The occupier (club) had failed to check whether proper insurance was in place. Checking the contractor’s insurance was considered to be an important issue in judging the competence of the contractor in this case.

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A Quick Summary of Stone v Taffe [1974]

Case name & citation: Stone v Taffe [1974] 1 WLR 1575; [1974] 3 All ER 1016

Court and jurisdiction: Court of Appeal, England and Wales

Year of the case: 1974

Area of law: Occupier’s liability; restrictions of time

What is the case about?

Occupiers hold a duty of care towards all lawful visitors on their premises. But sometimes a difficult situation arises when an employee of the occupier violates an express instruction not to allow visitors after a certain time. In that case, does the occupier still owe a duty of care to those visitors or not? Stone v Taffe [1974] is a case on this issue.

Facts of the case (Stone v Taffe)

The defendants in Stone v Taffe owned a public house that was administrated by their servant, Taffe. Taffe allowed Stone (among others) to stay on the premises until 1 a.m., in violation of the licensing laws and contrary to clear instructions. Taffe then negligently extinguished (or failed to light) the lamp over the staircase, which was structurally safe, causing Stone to fall downstairs and die.

The defendants denied liability on the grounds that the claimant was a trespasser and not a lawful visitor since he was there after closing time.

Issue raised

Were the defendants (occupiers) liable or not?

Judgment of the Court in Stone v Taffe

The Court of Appeal determined that Taffe was acting in the course of his employment and that Stone was still a lawful visitor at the time.

To resolve the issue, the following question was considered:

“Did Mr. Stone know, or ought he on a balance of probabilities to be held to have known, that his permission to be there ended reasonably soon after 10.30 p.m.?”

It was held that Stone was a lawful visitor since he had not been made aware of the time restriction by the servant, Taffe. He did not know of the prohibition that no visitors were allowed to remain after closing time.

Therefore, the defendants (occupiers) were held liable. And as far as the issue of vicarious liability was concerned, the Court decided that Taffe was acting in the course of his employment, despite his ignoring instructions. Therefore, the occupiers were liable.

The legal point emerging from the case

Restrictions by time must be made equally clear to the visitor.

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A Case Summary of Roles v Nathan [1963]

Case name & citation: Roles v Nathan [1963] 1 WLR 1117; [1963] 2 All ER 908

  • Court and jurisdiction: Court of Appeal, England & Wales
  • Decided on: 15 May 1963
  • The bench of judges: Lord Denning MR, Lord Justice Harman and Lord Justice Pearson
  • Area of law: Occupier’s liability; risks ordinarily incidental to certain occupations

What is the case about?

Roles v Nathan [1963] is a very tragic case in tort law. Here, the Court of Appeal addressed the scope of Section 2(3)(b) of the Occupiers’ Liability Act 1957 in relation to the death of two chimney sweeps. Given below are its facts.

Facts of the case (Roles v Nathan)

Two men had been engaged as chimney sweeps by an occupier, Mr Nathan at Manchester Assembly Rooms. They had died after inhaling carbon monoxide fumes while they were cleaning the flue of a central heating boiler and sealing up a sweep hole in the chimney, the boiler being alight. Their widows brought an action against the occupier claiming that he was at fault and in breach of the duty of care laid down under the Occupiers’ Liability Act 1957. Evidence showed that the occupier had warned them not to continue working while the boiler was on fire due to the danger posed by the fumes, and had indeed physically removed them from the danger area on two occasions.

What was the issue?

The question was whether the occupier could be held liable for this tragic accident.

Judgment of the Court in Roles v Nathan

It was determined that the occupier was not liable because he had in fact fulfilled his duty of care under the Occupiers’ Liability Act 1957 by informing them of the specific dangers.

Further, occupiers are entitled to presume that contractors will recognize and guard against any risks that are ordinarily associated with their employment. In this regard, Lord Denning pointed out that the risks involved were ordinarily incidental to a chimney sweep’s job and that the men should have been aware of them and taken precautions to avoid them. He went on to say that if the deaths had been caused by something unconnected to the business of chimney sweeps, such as if the stairs leading to the cellar had collapsed, then the occupier would have been held accountable.

The legal point emerging from the case

Section 2(3)(b) of the Occupiers’ Liability Act 1957 applies when an occupier hires an expert to perform work on the premises. In these situations, it is presumed that the expert is aware of any risks associated with their work and that they will take precautions to avoid them while on the premises.

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A Quick Summary of Haseldine v Daw [1941]

Case name & citation: Haseldine v Daw & Son Ltd [1941] 3 All ER 156; [1941] 2 KB 343

  • Court and jurisdiction: Court of Appeal, England and Wales
  • Year of the case: 1941
  • The learned judge: Scott LJ
  • Area of law: Occupier’s liability; contractors doing technical work

What is the case about?

Haseldine v Daw & Son Ltd [1941] is a tort law case concerning the liability of an occupier for work performed by independent contractors. It says that a reasonable occupier is expected to hire professionals to inspect systems that he cannot check himself, such as electrical wiring or a lift since he does not have the requisite technical knowledge.

Facts of the case (Haseldine v Daw)

The occupiers of a block of flats employed a firm of lift engineers that they found to be competent to maintain the lift of their premises. The engineers were employed to make periodical inspections of the lift and to adjust it where necessary. On one visit, they had been negligent in adequately repairing the lift. The plaintiff was consequently injured as the lift suddenly fell from the top to the bottom of the lift shaft.

What was the issue here?

The issue, in this case, was whether the occupiers of the premises were liable for the injury caused to the plaintiff. Or whether the engineering company was to be held liable for not effectively repairing the lift.

Judgment of the Court in Haseldine v Daw

The Court of Appeal decided in favour of the occupiers.

The occupiers were not held liable because they had employed engineers who appeared to be competent to undertake the work. They could not be expected to check if the work had been done properly since it was too technical.

The reasoning behind the decision

In general, the occupier shall not be held accountable for the torts committed by independent contractors on the premises if he or she was reasonable in hiring the contractor and took reasonable steps to check the work. Once again, if the work is highly technical, he or she would not be expected to know of defects.

Quote from the case

“The landlord of a block of flats, as occupier of the lifts, does not profess as such to be either an electrical or, as in this case, a hydraulic engineer. Having no technical skill, he cannot rely on his own judgment, and the duty of care towards his invitees requires him to obtain and follow good technical advice. If he did not do so, he would, indeed, be guilty of negligence. To hold him responsible for the misdeeds of his independent contractor would be to make him insure the safety of his lift.”

(As per Scott LJ at p.356)

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Wheeler v Copas [1981]: A Quick Summary

Case name & citation: Wheeler v Copas [1981] 3 All ER 405

  • Jurisdiction: England and Wales
  • Year of the case: 1981
  • The learned judge: Chapman J
  • Area of law: Occupier’s liability; contributory negligence

What is the case about?

Wheeler v Copas [1981] is a tort law case that dealt with the question of whether a “ladder” can satisfy the definition of “premises” in order to constitute liability under the Occupiers’ Liability Act 1957. Further, it dealt with the duty of a person to supply appropriate materials to the contractors for the construction.

Facts of the case (Wheeler v Copas)

A farmer engaged a firm of bricklayers for the purpose of building a house on his farm. He contracted for labour only and undertook to provide the required materials and equipment. The plaintiff was a partner in the bricklaying company. For carrying out the work, he needed a ladder and selected one of the ladders from the farm. While using it, the ladder collapsed and the plaintiff was injured. He sued the defendant (farmer) for damages for personal injury on the basis that the defendant was liable under the Occupiers’ Liability Act 1957.

What was the issue here?

In this case, the legal issue was whether the defendant owed the plaintiff a duty of care. If this could be shown, it was critical to determine the extent to which each of the parties had contributed to the negligence and accident.

Judgment of the Court in Wheeler v Copas

The judge decided that the farmer was not liable under the Occupiers’ Liability Act 1957 since even though the Act covers moveable structures, such as vessels, vehicles and aircraft, and that it could apply to a ladder, the defendant could not be deemed to be an “occupier”. This is so because he had handed over the ladder to the contractors; it was no longer under his control. 

After this, the court considered that the defendant still owed a duty of care. He was negligent as he did not provide suitable equipment for the job and failed to equip the plaintiff with an adequate ladder. But this liability was limited due to the fact that the plaintiff should have recognized the problem with the ladder before beginning his work. Hence, he contributed to the negligence.

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