Implied licensees
The Occupiers' Liability Acts 1957 and 1984. A trespasser may become an implied licensee in circumstances where the occupier is aware of their presence and does nothing to prevent or discourage it nor expressly forbids it, e.g. children who regularly gain access to the premises to play or take a short cut (Edwards v. British Railway Executive [1952]). In such circumstances, the visitor would then be owed the common duty under the 1957 Art.
2. Answer the following questions
1) What area of tort law envisages a particular duty of care?
2) What does the act on a common duty of care (sec 2) provide?
3) What particular duty is prescribed by The Occupiers' Liability Act 1957?
4) Who are statutory visitors and common law visitors?
5) Does a common duty of care owed to common law visitors?
6) Who is an occupier in law?
7) What defenses to occupier’s liability do you know?
8) What is contributory negligence?
11) When is the occupier responsible for the danger on the premises?
12) In what way is a licensed visitor different from an implied licensee?
3. Find the English for
1) обязанность соблюдать осторожность по отношению к к-л 2) соблазн, искушения 3) риски и опасности 4) лица обладающие властными полномочиями (разрешениями), 4) лица, пересекающие границы владения в соответствии с договорными обязательствами, 5) право сервитута, 6) движимые и недвижимые предметы , 7) встречная вина
4. Supply the right word to make the sentences complete and answer the question: “Who is an 'occupier' for the purposes of the Act?”
Common law rules apply The 1957 Act does not define what (constitutes/qualifies) an occupier but stipulates that the rules of the common law shall apply (s1 (2)).
The test is one of control and not exclusive occupation The basic test for an occupier is one of control over the (premises/ territory). There can also be more than one occupier of premises at any given time, see Wheat v E Lacon & Co Ltd (1966). The defendants (possessed/owned) a public house and the manager and his wife occupied the upper floor. The manager's wife was allowed to take paying guests, and one of these guests had an (accident/incident) on the staircase leading to the upper floor. It was held that the defendants were occupiers of the upper floor as they exercised residuary control.
It is not necessary to be present on the premises In Harris v Birkenhead Corporation (1976), the local authority had (issued/made) a notice of compulsory purchase order and notice of entry but had not taken possession. They were held to be occupiers.
5. Supply the words from the table to make the sentences complete and answer the question: When can the occupier discharge the duty of care?”
|
1) insufficient 2) negligent 3) willingly …4) discharge ….5).one ….6) a warning |
Warning Section 2(4) (a) provides that an occupier can 1… his duty to a visitor by giving 2… of the danger that in all the circumstances allows the visitor to be reasonably safe. The test for determining whether a warning was adequate is a subjective 3…. A written warning will not be adequate in the case of someone who is blind, or who cannot read or speak English. In Staples v West Dorset District Council (1995), it was held that an occupier had not been 4… when the council had failed to provide a warning and the danger was obvious. In such circumstances, a warning would not have told the visitor anything he did not already know and would not have affected his conduct.
Acceptance of the risk Section 2(5) provides that an occupier does not have an obligation to a visitor in respect of risks 5) … accepted by the visitor. In Simms v Leigh RFC Ltd (1969), the plaintiff had accepted the risks of playing on a rugby league ground which conformed to the bylaws of the Rugby League.
Knowledge of specific risk In White v Blackmore (1972), it was held that it was 6) … to show that the plaintiff knew that jalopy car racing was dangerous; it was necessary to show that the plaintiff had consented to the specific risk that made that particular track dangerous.
6. Read the text and answer the question: “When shall the occupier avoid liability?”
Section 2(1) provides that an occupier is able to 'exclude, restrict or modify his duty'. In Ashdown v Samuel Williams & Sons Ltd (1957), the Court of Appeal accepted that a notice was sufficient to exclude liability. In White v Blackmore (1972), notices put at the entrance to the field were sufficient to exclude liability.
1) Unfair Contract Terms Act 1977. The Unfair Contract Terms Act (UCTA) has greatly restricted the occupier's ability to exclude his liability.
2) Premises used for business premises As far as premises used for business purposes are concerned, the occupier is unable to exclude liability for death and personal injury. Exclusion of liability for other types of loss must satisfy the reasonableness test contained in s 7 of UCTA.
3) Premises used for private purposes Occupiers of premises which are not in business use can exclude liability only if such exclusion is reasonable.
4) Remoteness The test for remoteness under the 1957 Act is the same as applies to a common law claim for negligence (Jo/fey v Sutton London Borough Council (1998)).
7. Supply the correct form of the verb “to be” to complete the sentences and answer the question: “When shall defence for independent contractor’s wrongdoing be valid?” Use the chart below
It will be a defense for the occupier to show that the defective state of the premises (be) caused by the faulty execution of any work of construction, repair or maintenance by an independent contractor, provided that (s 2(4)(b)). Whether it (be) reasonable to entrust the work to a contractor and the nature of the work (be) done depends on the circumstances. The more complex the work, the more reasonable it (be) to entrust it to a contractor. Thus, in Haseldine v CA Daw & Son Ltd (1941), an occupier (be) not liable for the negligence of an independent contractor in maintaining a lift in a block of flats. This can (be) contrasted with Woodward v Mayor of Hastings (1945), where the occupiers (be) liable for the negligence of a cleaner in leaving a step in an icy condition. Cleaning a step does not require any particular skill.
CASES
Advise your client on his/her liability
1) In Glasgo Corporation v Taylor (1922) a seven-year-old boy ate poisonous berries on a visit to a botanical garden.
2) In Roles v Nathan (1963), two chimney sweeps died from carbon monoxide poisoning while cleaning the flute of a boiler. They had been warned not to continue working while the boiler was alight.
3) In Bird v King Line LTD (1970) A sailor fell on a refuse which was carelessly left on the desk.
4) In Ogwo v Taylor (1988) the occupier negligently started a fire. A fireman was injured in the blasé where the fire fighting operation had been carried out with due care.
5) In Woodward v Mayor of Hastings (1945) the cleaner of the house left the steps in an icy condition
6) In Ratcliffe v Mc Connell (1998), a student was seriously injured when he dived into a swimming pool at 2 am when it was locked.
REVISION AND PRACTICE SECTION
1. You should now write your revision notes for Occupier’s liability. Give your definition to
a) Common law visitor (other than licensee/invitee) b) Duty not to act positively to make premises dangerous and protection by 1984 Act c) Trespassers—owed duty of humanity (BRB v. Herrington) and protection by 1984 Act may become implied licensees (Edwards v. BRE]
2. Using your cards, you should now be able to write a short paragraph on the following topics
1) Common duty of care under the OLA 1957. 2) Different types of lawful visitor. 3) Who is in law an "occupier"? 4) What are in law premises"? 5) Defenses available to an occupier 6) Limited duty of care under the OLA 1984 7) Position of common law visitors, trespassers and implied licensees
UNIT THREE
1. Read the following text
Liability for Animals
Liability for animals at common law Liability for animals may arise in the ordinary law of tort, e.g. in nuisance (Leeman v. Montagu [1936]) or negligence (Draper v. Hodder [1972]). The common law also developed a number of special rules relating to animals. These have now been replaced by the provisions of the Animals Act 1971, though this is based on and retains many of the principles of the old common law position.
Liability for animals under the Animals Act 1971
A. Liability for dangerous animals By section 2(1), a keeper of a dangerous animal is strictly liable for any damage caused by it. By section 6(2), a dangerous animal is:
1) one which is not commonly domesticated in the British Islands (even though it may be domesticated overseas—Tutin v. Chipperfield Promotions Ltd [1980]); and 2) whose fully-grown animals normally have such characteristics that they are likely, unless restrained, to cause severe damage or that any damage they may cause is likely to be severe, e.g. a tiger is likely to cause severe damage; an elephant, while it may not be likely to cause damage, any damage it may cause is likely to be severe.
A person is regarded as the keeper of the animal if he owns it or has it in his possession or is the head of a household of which a member under the age of 16 owns the animal or has it in his possession (section 6(3)). If someone abandons an animal, they are still regarded as the owner unless and until another person assumes ownership. Another person does not assume ownership, and hence become the keeper, merely by taking possession of an animal in order to prevent it causing damage or to return it to its owner.
B. Liability for other animals Where damage is caused by an animal other than a dangerous animal, section 2(2) provides that the keeper will be liable for that damage where:
1) the damage was of a kind that the animal, unless restrained, was likely to cause or that, if caused by the animal, was likely to be severe; and
2) the likelihood of the damage or of its being severe was due to characteristics of the animal that are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances; and
3) those characteristics were known to the keeper (actual knowledge is required—though failure to know what one ought to have known may give rise to liability in negligence).
Defenses 1) Contributory negligence (section 10); 2) Sole fault of the claimant (section 5(1)), e.g. where A provokes a dog into attacking him (Nelmes v. Chief Constable for of Avon & Somerset [1993]); 3) Consent to the risk (section 5(2))—although an employee (e.g. a zoo keeper) does not consent to risks incidental to their employment (section 6(5)).
Liability for injury to livestock by dogs
By section 3, the keeper of a dog is strictly liable where the dog causes damage by killing or injuring livestock. Livestock here includes not only the common types of farm animal but also domestic varieties of duck, geese, guinea-fowl, peacock, pigeon and quail, deer not in the wild state, and grouse, pheasants and partridges in captivity. A person may have a defense to an action for killing or injuring a dog to show that, at the material time, the dog was about to, was, or had been worrying livestock (section 9).
Liability for straying livestock
By section 4, a person to whom livestock (excluding captive grouse, pheasants and partridges) belongs will be strictly liable where that livestock strays onto land owned or occupied by another and causes damage to the land or any property on it that is in the ownership or possession of that other. The owner of the livestock will also be liable for any reasonable expenses incurred in keeping the livestock while the owner is identified or pending its return or (in certain circumstances) sale. The following defenses may be available: '1) sole fault of the claimant (section 5(1)) to section 5(6) provides the fact the claimant could have prevented the damage by fencing does not, in itself, make that damage the claimant's fault; 2) where the straying would not have occurred but for the breach by another person of a duty to fence the land (section 5(6)); 3) contributory negligence (section 10).
2. Answer the following questions
1) What other branches and fields of law deal with liability for animals
2) What statutes do you know? What do these statutes proclaim?
3) What animals are considered dangerous? Who is in law the keeper of the animal?
4) When is the keeper liable for the damage caused by other than dangerous animals?
5) What are defenses to the liability?
6) What is the liability for straying livestock”?
3. Find the English for
1) одомашненные животные, 1) если животное покинуто хозяином, , 3) не считается владельцем 4) получать право владения 5) с силу присущих особенностей животного 6)домашний скот, поголовье, 4) цесарка, 8) павлин , 9) голубь 10) перепел 11) тетерев, 12) фазан 13) куропатка 14) повлечь денежные выплаты
4. Supply the English words to make the sentences complete.
Damage by animals is a familiar (вред) in agricultural communities and, not surprisingly, it attracted the attention of the law from very early times. Even today a large number of injuries (in the late 1970s the Pearson Committee Report (по оценке) 50,000 a year), together with a very small number of deaths, (приходятся на to animals, mainly dogs or horses. These figures, however, paint a somewhat (искаженную) of the importance of this part of law. Since the 1971 Animals Act, the wording of which has been judicially described as (затруднительное ) 'inept' and 'difficult (толковать), a relatively small number of cases has been decided under it, a fact which seems to indicate that in the numerically frequent, but relatively trivial, cases no (судебное разбирательство) follows, while the more serious injuries tend to be litigated, if at all, under the rules of negligence.
5. Supply prepositions where necessary to make sentences complete
Although the subject has reduced significance today, … any rate when compared with the tort of negligence, this was not always the case. The richness of the common law, which is still sometimes relevant … the understanding of the modern law, testifies to the venerable ancestry of the subject. For characteristic of primitive systems is the tendency to identify the owner … his animals, and even inanimate property, and to hold him liable irrespective … fault. This has now changed, but it explains why strict liability has remained acceptable .. n this field of law.
6. Supply the right articles where necessary and analyze the liability for keeping dangerous animals in the light of section 5 of the Animals Act 1971
The defense under section 5(3), however, needs closer attention. This reads: A person is not liable under section 2 of this Act for any damage caused by an animal kept cm any premises or structure to a person trespassing there, if it is proved either: 1)that the animal was not kept there for the protection of persons or property; or 2) (if the animal was kept there for the protection of persons or property) that keeping it there for that purpose was not unreasonable.
Keeping a lion for ….. purpose of protection would thus certainly be characterized as 'unreasonable', whereas keeping a dog, even a fierce one, may be considered reasonable in ..… circumstances. Moreover, though section 5(3) may provide a defense to ….. action under section 2 in strict liability, it does not affect any liability that may be imposed upon ….. defendant as occupier of ….. premises in accordance with ….. the ordinary rules of negligence.
CASES
Read and translate the case into Russian. Answer the question: Do you agree with the ruling of the House of Lords? Give legal ground to justify your position.
In Cummings v. Granger the defendant was the occupier of a breaker's yard, which was locked at night, and his untrained Alsatian dog was turned loose inside it to deter intruders. One night an associate of the defendant, who had the key, unlocked a side gate and entered the gate accompanied by his girlfriend. The dog attacked her and caused serious injuries. In her action under section 2 the main issue was whether the defendant could rely on any of the defenses in section 5. The court of first instance and the Court of Appeal thought that the case came under section 2(2), since (a) the damage likely to be caused was severe; (b) the dog would run around and bark guarding its territory, and this was not characteristic of Alsatians except in circumstances where they are used as guard dogs, which constituted 'particular circumstances' within the meaning of the subsection; and (c) these characteristics were known to the defendant. As for possible defenses, the Court of Appeal took a different view from that of the High Court. Section 5(1) was inapplicable since the attack was not wholly, but only partly, due to the plaintiff's fault. Section 5(2), however, could apply, for the plaintiff knew of the risk and had decided to take it.
The Court of Appeal also felt that even the defense under section 5(3) could apply, since keeping a dog as a means of protecting the premises was, in the circumstances, a reasonable way of preserving one's property. In this context mention must now be made of section 1 of the Guard Dogs Act 1975, which provides that a guard dog cannot be allowed to roam about in premises unless it is under the control of its handler.81 In Cummings v. Granger the Guard Dogs Act did not apply, since the incident had occurred before this Act came into force. Contravention of the Guard Dogs Act only entails criminal liability to a fine up to £400, but the Act does not confer a right of civil action. It could, however, indirectly affect the civil action because such contravention may show that this was an unreasonable method of protecting persons or property. If this were so, the defence of section 5(3) would disappear in the case of guard dogs, though in the present case the defendant would still have escaped liability under section 5(2) by virtue of the plaintiff's voluntary acceptance of the risk.
REVISION AND PRACTICE SECTION
1. You should now write your revision notes for Trespass. Here is an example for you and some suggested headings
a) Animals-1971/ Dogs injuring livestock, b) Liability for animals in common Law, c) Liability for dangerous Animals, d) Liability for other Animals , e) Liability for dogs
CONTENTS
I. INTRODUCTION page 3