Liability of Employers and Occupiers

Andy is the licensee of "The George and Dragon" Pub. He is facing claims in tort from the following:-

(1) Betty an elderly customer, who, whilst climbing a steep and dimly lit staircase to the toilets, caught her foot in a badly worn carpet, fell and broke her ankle. A prominent and well lit notice at the foot of the staircase stated "Customers are advised to exercise caution on the stairs and to use the handrail provided. The management will accept no responsibility for loss or damage howsoever caused".

(2) Claire, who was working behind the bar when she tripped over a crate of bottles which had been left behind the bar by Donald, a barman taken on by Andy a month ago. Claire sustained a broken wrist. Andy had instructed Donald not to leave crates behind the bar but Donald frequently forgets Andy's instructions.

(3) Eddie, a customer, who, whilst Andy's attention was distracted, climbed the staircase to the first floor and entered Andy's private living room, intending to steal some money. In searching for Andy's wallet, Eddie suffered concussion when a shelf, which Andy had temporarily propped on a wooden pole, fell on him. A notice on the door to the living room clearly stated "Staff Only - no un authorised personnel may enter this room.

Discuss and explain whether Andy will be able to successfully defend the claims listed above.

1. Betty

The Occupiers Liability Act 1957 imposes a “duty to take such care as in all the circumstances of the case is reasonable” upon the occupier of a property. It is relevant that Andy should have been aware that elderly customers may use the stairs.

The primary question is whether Andy, as licensee, will be found to be the occupier. In Wheat v Lacon & Co Ltd , the court confirmed that an occupier will be “any person with sufficient control over the premises to pub him under a duty of care towards those who come lawfully upon the premises.”

It is unlikely that it will be the brewery, as opposed to the licensee that retains control. In Cavalier v Pope it was held that where a landlord let premises with an obligation to repair, the premises remained under his control. This was however overturned in the House of Lords.

In any event, it is possible for there to be more than one occupier, and in the Wheat case, the court held that the brewery, the licensee and the licensee’s wife were all found to be occupiers.

That case in fact also involved an accident on poorly lit stairs. There was no bulb in the electric lights at the time of the accident. In that case, the hand rail was also unsafe, since it terminated above the third step. It was held that, on these facts there was no liability.

In Betty’s case, there is the additional factor of the badly worn carpet. A worn carpet on a steep staircase is an obvious hazard, which is only aggravated by providing inadequate lighting. It is therefore submitted that there has been a breach of the duty under the Act.

The notice will be of no effect. Section 2(1) of the Unfair Contract Terms Act 1977 provides:-
“A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence”.

Andy is therefore unable to exclude liability for Betty’s injury.

I would advise Andy that he has no real prospect of defending a claim brought by Betty.

2. Claire

Donald has created a hazard by leaving the crate of bottles behind the bar.

Andy has an obligation as an employee to provide competent staff, adequate material, and a proper system and adequate supervision, and a safe system of work.

Andy’s duty as an employee is a “non-delegable” duty, which means that he cannot escape liability if he has delegated a duty that has not been performed.

In McDermid v Nash Dredging & Reclamation Co Ltd , a system of work was put in place, which involved unmooring the tug. The Captain, contrary to the Defendant’s instructions, failed to operate that system, and as a result, the claimant suffered injury. The court found that the Captain’s failure to operate the system, the Defendants, as the Claimant’s employers, were personally, not vicariously, liable to him.

It is therefore irrelevant that he has asked a member of staff to ensure that the crates are not left behind the bar.

In addition, Andy is liable for the acts of an employee carried out in the course of the employment of his duties. Therefore, the failure to move the crates breaches the duty to provide a safe system of work. Additionally, the placing of the crates in such a place as to create a hazard, by any member of staff, is a breach of the duty of care, for which Andy would be vicariously liable.

Andy has no real prospects of defending this claim.

3. Eddie

The intent to steal will not be relevant. A duty of care is owed even to a trespasser engaged in criminal activities.

The 1957 Occupiers Liability Act only extends to lawful visitors. As soon as Eddie enters the private living room, uninvited, he becomes a trespasser.

Eddie would however have been aware that he was not a lawful visitor, in light of the notice. The 1984 Act, which is of more restricted scope, will therefore apply in this instance.

Section 1(3) provides that a duty will be owed by the occupier if:
“a) he is aware of the danger or has reasonable grounds to believe that it exists;
b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger; and
c) the risk is one against which , in all the circumstances of the case, he may reasonably be expected to offer the other some protection”.

Andy himself propped the shelf on a pole, and was therefore aware of the danger. It would seem obvious that a shelf, propped high, and unstably on a wooden pole may cause a danger.

From the facts given, it would appear that Andy however had no reason to believe that Eddie would or may come into the vicinity of the danger. There would accordingly be no duty since Section 1(3)b) is not satisfied.

It is submitted that sub-section c) would be satisfied.

S1(4) provides that if a duty is owned, the occupier must take such care as is reasonable in all the circumstances of the case to see that the visitor does not suffer injury on the premises through the danger. It would be reasonable to expect Andy to place the safe at a low level, on something more stable than a pole. This would not involve any expense.

However, in this instance, I would advise Andy that he has a valid defence since subsection b) is not satisfied. Effectively Section 1(3)(b) of the 1984 Act requires knowledge of facts; under the 1957 Act ignorance would not be a defence. It is submitted that, if Eddie were not a trespasser, Andy would be liable under the 1957.

Bibliography

The Occupiers Liability Act 1957
The Occupiers Liability Act 1984
Unfair Contract Terms Act 1977

Cavalier v Pope [1906] AC 428
McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906
Revill v Newbury [1996] 1 All ER 219
Wheat v Lacon & Co Ltd [1966] AC 552
Wilsons and Clyde Coal Co Limited v English [1938] AC 57

Tort Law – text and materials, Lunney and Oliphant, 2nd Edition, Oxford 2003
Winfield & Jolowicz on Tort, WVH Rogers, 16th Edition, Thomson Sweet & Maxwell 2002

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