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5.3 Occupiers' Liability Lecture - Hands on Examples

Question:

Leopold, a 17-year-old boy, decides one day to break into a local abandoned warehouse. The owners moved out several years previously to new premises, and secured the premises before they left. In order to enter the warehouse, Leopold has to remove a heavy metal grill using some tools.

After living in the warehouse for a few days, Leopold has had a chance to explore the warehouse thoroughly, noticing that the back balcony attached to the rear of the warehouse is rusted and rickety.

Leopold decides to host an illegal rave, and invites a number of local teenagers to it.

The party is in full swing when one of Leopold’s friends, Kyle, decides to go out for a smoke. He is on the upper level of the warehouse, and sees the door to the back balcony. He walks onto it, and under his weight it collapses. He falls from some 10ft, a breaks his leg. His friends cart him off to hospital.

Leopold finds it annoying to have to walk all the way through the warehouse to get to the upper level, and tells another friend, Erika, that there are some old wooden ladders lying about next to the warehouse. Leopold has tried to use one of these ladders once before despite them being chained up and labelled with a large sign ‘do not use – for waste only.’ Leopold broke the chain, discarded the sign, and tried to use one of the ladders - it broke under his weight. Erika sets up the ladder where the balcony used to be, but whilst climbing up the ladder breaks, and Erika falls, breaking her arm. Having just arrived back from taking Kyle to hospital, Erika too, is taken away.

Outside of the warehouse is a large pit, used to dispose of industrial waste. It is unfenced and not signposted. In an effort to take the perfect selfie, another partygoer, Kenneth, steps backwards and falls over the edge, he dies from the fall, but nobody discovers him until the day afterwards.

Having not heard from Kenneth the day after, his parents eventually call the police, who discover his body in the waste pit after investigating his whereabouts. The police note in their report that they have seen teenagers hanging around near the pit before – it is a popular meeting place. They have spoken to the owners about repairing the external fence to stop these gatherings from occurring, but nothing has come of it.

Answer:

The first injury is Kyle’s broken leg. There are two concurrent occupiers here, ascertained via the control principle of Wheat v E Lacon & Co Ltd [1966] AC 552. Leopold is an occupier because he (temporarily) lives in the warehouse, and has invited others to join him for the rave (which suggest occupancy). The owners of the warehouse also have a level of control – they have legal ownership, and despite not being physically present, this constitutes a form of occupancy, as in Harris v Birkenhead [1976] 1 WLR 279.

Kyle is injured by the state of disrepair of the balcony. As he is a trespasser as far as the owners are concerned, their duty is covered by OLA 1984. Under s.1(3) of the Act, an occupier must have knowledge (or reasonable belief) that a trespasser is in the vicinity of the relevant hazard. This is not the case, since the owners had secured the facility before they left – indeed, Leopold needed tools to even access the inside of the building, and thus, the balcony. Furthermore, this blocking of access could be considered a reasonable attempt to secure the balcony.

Kyle has express permission to be on the property from Leopold – he has been invited. Leopold has arguably failed to fulfil his duty as an occupier under s.2(2) of OLA 1957 – he was aware of the danger of the balcony, and did nothing to prevent anyone from accessing it.

The second injury is Erika’s broken arm. The two occupiers remain the same, as does Erika’s status as trespasser in the case of the owner or visitor with express permission in the case of Leopold.

Under Wheeler v Copas [1981] 3 All ER 405 temporary structures such as ladders constitute premises. It can be argued that the owners have knowledge of the dangers the ladders constituted, and that trespassers had been accessing the outside of the warehouse where the ladders are located. However, they have arguably discharged their duty under OLA 1984 to protect them from the danger the rickety ladders constituted – the danger was signposted and chained to prevent use.

Leopold on the other hand, is fully aware of the danger, having been directly exposed to it himself. In contrast to the owner’s actions, he actively made the hazard of the ladders worse, removing the warning sign, making them available to use, and endorsing their use. He is, thus, likely liable for Erika’s injuries.

Kenneth’s death is slightly more complicated. The warehouse owners know they have a large open, unguarded pit on their land, and via police , know that teenagers like to gather on the land close to it. They have taken no measures to deal with the hazard the pit represents. Thus, under OLA 1987 s.1(3) Kenneth’s estate likely has a case against them. This can be likened to the knowledge that children gathered on the roof in Young v Kent County Council [2005] EWHC 1342.

Under the same logic, the same can be said of Leopold, but under OLA 1957 2(2). It should be noted that both parties may well argue that Kenneth contributed to his own demise by not being careful, and that he should have been aware of the risk and protecting himself against it, as in Staples v West Dorset District Council [1995] 93 LGR 536. Furthermore, the warehouse owners are likely to argue that Leopold’s contribution to Kenneth’s death was more prominent than their own, since he invited him to the warehouse in the first place.


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