Occupiers’ Liability – Part 2

This post follows on from the previous one found here: Occupiers Liability – Part 1 and is contributed by Patricia Tuitt, Module Convenor for Tort law.

When discussing Occupiers Liability, senior judges had to deal with the difficulties of finding an objectively dangerous state of premises, as can be seen in two cases heard this year. The facts were presented in the earlier post (hyperlink) and the judgements are discussed here.

Let’s take a closer look at the judges’ reasoning

Both cases were brought on appeal and so in both cases the decision                                             turned on whether Judgethe appeal judge(s) felt that the lower court judge had applied the correct test.

The Court of Appeal in Edwards concluded that the High Court Judge did not apply the correct test.  The judge was preoccupied the nature/extent of the occupiers’ duty and failed to give due attention to the issue of whether the ornamental footbridge posed an objective danger (see para 38)

Lord Justice Mc Combe (delivering the leading judgment) did find an objectively dangerous state in relation to the ornamental footbridge, on the basis only that:

‘…a bridge with no sides or only low ones may present a danger from the state of the premises” such as to give rise to the common duty of care” (para 42). 

However, Mc Combe LJ found that Sutton Borough had reached the requisite standard of care even though it, in effect, did nothing in the face of the objectively dangerous state of the footbridge. He was not prepared to accept that the finding of an objectively dangerous state is alone sufficient to give rise to a duty to remove, alleviate or warn against the danger. In short, ornamental bridges without side rails can still be constructed without, per se leading to obligations under the OLAs (see para 42).   Not only can such premises be erected, there is no duty to warn users of the absence of side rails.  The dangerous state (unguarded sides to the bridge) was evident to all, and it is now settled law that an occupier of land is not “…under a duty to protect, or even to warn, against obvious dangers…” (see para 43).
In the Manley case, a power failure affecting the lighting in Manley’s cell created an objectively dangerous state.  On the question of breach of the common duty of care, one infers from the judgment ( paras 26-29 in particular) that had the Defendant repaired the Wooden judges gavelpower failure within  the period of twenty minutes which  was the expected timeframe within which such a repair would have been completed (para 12) there would have been no breach of the occupancy duty.  The repair was delayed for 15-20 minutes (para 26) and it was during this extended period that the accident happened.  The delay alone was not material, what was material was that the Claimant had made clear to an appropriate official that his temporary mobility made timely repair imperative.

Concluding thoughts…

Readers should note that neither Edwards nor Manley involved consideration of novel questions and new legal principles.  As noted in the Edwards judgment, the legal principles applied in the cases had been established by the House of Lords in the case of Tomlinson v Congleton Borough Council [2003] UKHL 47.

The Judgements in Edwards and Manley are linked to this blog post. I look forward to reading your comments.

5 comments

  1. Dear Prof. Tuitt,

    Thank you for the great post. In the previous related post you have remarked that it is important to distinguish between “dangers arising from activities on premises and dangers arising from the state of the premises” (https://laws.londoninternational.ac.uk/2017/01/10/occupiers-liability/). Based on the current post, both cases are concerned with the state of the premises. In respect of Edwards case it is quite clear (state of the bridge). While in respect of Manley case, it is less obvious, because the electrical power element could be seen as a utility / service rather than a state per se. Could you therefore elaborate on this issue further, if possible.

    Respectfully,

    Aleksandra

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    1. Dear Aleksandra, thank you for your comment and question. Your question is being forwarded to Professor Tuitt and I hope to be in touch soon with her reply. ULP Office

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      1. Dear Patricia, many thanks for this update, I was working on this case and waiting on the conclusion; Domo Arigato

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    2. Dear Aleksandra, if I may, the state of the premises literally means the condition of the premises. The power outage and the resulting darkness was the ”state of the premises” when the accident occurred. I think the Manley case indicates that the prison officials are under a duty of care to protect the claimant outside the typical regular 20 minutes restoration. More so, considering that the official was aware of the claimant’s condition and no objective step was taken, in line with the extra minutes’ delay makes the defendant liable. I think the negligent act of not making extra provision for some in the claimant’s condition after realizing there would be a further delay is what led to their liability.

      Liked by 1 person

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