[funkymonkey88]

Hi

I wondered if it is possible to claim against a pub owner in the following scenario: the pub owner is hosting a wedding at his pub he contracts a security company who send a guard the guard then commits trespass to the person. So far I have got obviously trespass and vicarious liability sorted but wondered if the claimant could also bring a case against the pub owner using occupiers liability. Any help or cases would be greatly appreciated.

[Norton1]

Wheat v Lacon [1966] A.C. 552

Might or might not be relevant on the facts you've provided.

[funkymonkey88]

Thanks

Here are the facts so the case is clearer. Basically the owner of a pub, Peter has a wedding booked and he hires a security company Securit to provide a guard. The guard arrives, Bob and he prevents Paul from entering the wedding as he had forgotten his invitation. Bob blocks Paul from entering the bar area of the pub and Paul pushes him Bob punches him, knocks him out and locks him in a cupboard until the polic arrive. The police determine that Paul has not committed any criminal offence. Now I have established that Bob committs trespass to the person and that Securit are vicariously liable, but I am unsure as to whether Paul has a claim against Peter in occupiers liability.

[cliffg]

(Original post by funkymonkey88)
Thanks

Here are the facts so the case is clearer. Basically the owner of a pub, Peter has a wedding booked and he hires a security company Securit to provide a guard. The guard arrives, Bob and he prevents Paul from entering the wedding as he had forgotten his invitation. Bob blocks Paul from entering the bar area of the pub and Paul pushes him Bob punches him, knocks him out and locks him in a cupboard until the polic arrive. The police determine that Paul has not committed any criminal offence. Now I have established that Bob committs trespass to the person and that Securit are vicariously liable, but I am unsure as to whether Paul has a claim against Peter in occupiers liability.

I'm inclined to think that I'd disregard occupiers' liability on the basis that it primarily covers "state of the premises" duty as opposed to "activity" duty which is governed by common law. I also think that even if you extend the duty to an "activity" that the occupier is absolved by engaging a competent independent contractor. I've no direct authority for that, however, as I'm not doing the question, so it's nothing more than my best memory as opposed to a researched answer - so treat with caution !

[Forum User]

I agree with Cliff - I don't think there is any merit in claiming that the premises are defective in some way merely because there is a belligerent security guard on them. The OLA doesn't apply to 'activity duty' despite the dodgy wording of S1(1) - "...things done or omitted to be done on them" (see for example, Winfield & Jolowicz 9-3, Clerk & Lindsell 12-04).

Clerk & Lindsell actually give an example on this point which is similar to your question:

"See too Everett v Comojo (UK) Ltd [2011] EWCA Civ 13; [2011] P.I.Q.R. P8 (nightclub patron knifed: proprietor owed duty to protect him from such murderous conduct, but not under the 1957 Act"

re. Occupier being absolved by engaging a competent independent contractor, that is true when the premises are defective by S2(4)(b) of the 1957 Act, so long as the occupier has taken reasonable steps to check the work (which will themselves depend on the complexity of the work - contrast the pre-act cases of Haseldine v Daw and Woodward v Mayor of Hastings, which would probably be decided the same way under S2(4)(b)).

[TimmonaPortella]

(Original post by cliffg)
I'm inclined to think that I'd disregard occupiers' liability on the basis that it primarily covers "state of the premises" duty as opposed to "activity" duty which is governed by common law. I also think that even if you extend the duty to an "activity" that the occupier is absolved by engaging a competent independent contractor. I've no direct authority for that, however, as I'm not doing the question, so it's nothing more than my best memory as opposed to a researched answer - so treat with caution !

(Original post by Forum User)
I agree with Cliff - I don't think there is any merit in claiming that the premises are defective in some way merely because there is a belligerent security guard on them. The OLA doesn't apply to 'activity duty' despite the dodgy wording of S1(1) - "...things done or omitted to be done on them" (see for example, Winfield & Jolowicz 9-3, Clerk & Lindsell 12-04).

Clerk & Lindsell actually give an example on this point which is similar to your question:

"See too Everett v Comojo (UK) Ltd [2011] EWCA Civ 13; [2011] P.I.Q.R. P8 (nightclub patron knifed: proprietor owed duty to protect him from such murderous conduct, but not under the 1957 Act"

re. Occupier being absolved by engaging a competent independent contractor, that is true when the premises are defective by S2(4)(b) of the 1957 Act, so long as the occupier has taken reasonable steps to check the work (which will themselves depend on the complexity of the work - contrast the pre-act cases of Haseldine v Daw and Woodward v Mayor of Hastings, which would probably be decided the same way under S2(4)(b)).

I think this is an appropriate place for this question:

How do you guys reconcile Everett, in which the CA is happy to assume that there would be a duty under the OLA (though it decides the case in common law negligence), and Tomlinson, in which the HL was happy to assume that there'd be a duty if the harm was caused by speedboats permitted to be on land, with the CA decision in Fairchild, which appears to rule that there could be no liability under the OLA for the throwing of dust into the air since this isn't connected to the property? I can't work out not only how to reconcile these cases, but also, and further, and more worryingly, why none of the judges in any of the cases seem to think that there's a conflict :s

Cheers in advance guys, this point is destroying me.

edit: am I misinterpreting the following passage of Smith LJ in Everett in thinking that it is being said that there would exist the specific duty under the OLA?

"But also in this context I regard it as relevant that the relationship between the parties already carries with it an established duty, under the Occupier's Liability Act 1957 , in relation to the condition of the premises. That is the common duty of care and it requires the occupier to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted to be there. It would be surprising if management could be liable to a guest who tripped over a worn carpet and yet escape liability for injuries inflicted by a fellow guest who was a foreseeable danger, for example, in that he had previously been excluded on account of his violent behaviour and who on this occasion had been allowed in carrying an offensive weapon."

But that would still leave the problem of the Tomlinson comments -- how can they be explained?

Again, thanks in advance.

[Forum User]

I think the comments in Everett should be read merely as saying that since there is a duty under OLA 1957 relating to the state of the premises (worn carpet etc), it would be odd if there was not some duty relating to the presence of a dangerous fellow guest (but this second duty is the common law duty of care.

Agree re. Tomlinson, though:

"In my opinion “things done or omitted to be done” means activities or the lack of precautions which cause risk, like allowing speedboats among the swimmers." It's hard to see how that is not an 'activity duty' in contradiction to Fairchild. In fact there are quite a few contradictory cases on this point (Cunningham v Reading Football Club, Revill v Newbury).

Perhaps one reason for their being contradictory views is that in a sense it doesn't matter, the cases would be decided the same way assuming an activity duty under the OLA as at common law. I prefer Fairchild personally.

[TimmonaPortella]

(Original post by Forum User)
I think the comments in Everett should be read merely as saying that since there is a duty under OLA 1957 relating to the state of the premises (worn carpet etc), it would be odd if there was not some duty relating to the presence of a dangerous fellow guest (but this second duty is the common law duty of care.

Agree re. Tomlinson, though:

"In my opinion “things done or omitted to be done” means activities or the lack of precautions which cause risk, like allowing speedboats among the swimmers." It's hard to see how that is not an 'activity duty' in contradiction to Fairchild. In fact there are quite a few contradictory cases on this point (Cunningham v Reading Football Club, Revill v Newbury).

Perhaps one reason for their being contradictory views is that in a sense it doesn't matter, the cases would be decided the same way assuming an activity duty under the OLA as at common law. I prefer Fairchild personally.

Ok cool thanks. Just to check, is Fairchild obiter on this point? I only read the relevant sections of the case, and it didn't seem to me to be, but I can't be sure.

And I find it hard to see how it could not matter. The OLA imposes straight out a duty of affirmative action which so far as I can see wouldn't exist otherwise.

[Forum User]

Well, perhaps it would be more important in the case of a trespasser.

In Everett the court were happy to state that night club owners owe a common law duty of care to their patrons in respect of the actions of third parties on their premises - but this duty could only be breached if the owners should reasonably have been aware that the third party was a danger and did nothing, so it must be a duty to take affirmative action in at least some circumstances.

In Cunningham the football ground had a duty of care to the home fans in respect of the actions of the away fans (and reading the case again the fact they were liable under the OLA 1957 as well seems correct, since the concrete stands were 'dangerously dilapidated), and this must be an affirmative duty (even if it was just - don't let the away fans into the ground because they are dangerous).

I suppose it is because by allowing people into nightclubs, visiting fans into football grounds, speedboats onto lakes etc the occupier himself is creating a source of danger, because if he had not permitted that activity the danger would not exist, so there is a common law duty to ensure that people are not harmed by that danger?

[cliffg]

(Original post by TimmonaPortella)
Ok cool thanks. Just to check, is Fairchild obiter on this point? I only read the relevant sections of the case, and it didn't seem to me to be, but I can't be sure.

And I find it hard to see how it could not matter. The OLA imposes straight out a duty of affirmative action which so far as I can see wouldn't exist otherwise.

Thanks a lot Timmona ! My academic year has just ended, I'm beginning to relax into summer, occupiers' liability was done and dusted a year ago, and someone throws a fly into my ointment ! Seriously, though, I've had to re-read some of this material and I'm beginning to change my views - I think. Everett appears to me to suggest that a duty is placed upon the occupier to guard against acts of third parties. That view seemed to be followed in the High Court in Geary v JD Weatherspoon, although again conveniently decided on a different issue. I think the reference to allowing speedboats amongst the swimmers in Tomlinson is very different from suggesting a duty to guard against the actions of one reckless or malicious speedboat driver. Everett, I think suggests otherwise. Did Smith LJ go out on a ridiculous limb in that quote about the worn carpet ? I think she did. Surely the degree of control that an occupier has over a carpet cannot be compared to the degree of control that they have over the actions of a third party. I still prefer the Littlewoods approach of third party actions which were "highly likely" as opposed to "reasonably foreseeable". I think that the authority is now there to argue that the "activities" of a third party come within occupiers' liability, following Everett. In that sense I'm disagreeing with ForumUser (I think) and disagreeing with my original post. I'm not sure that I can welcome the reliance on Australian and Canadian jurisprudence to achieve that extension and in a sense frustrate the aims of Parliament - even if it was a loosely worded Act. Sorry, I haven't even considered Fairchild.

[TimmonaPortella]

(Original post by Forum User)
Well, perhaps it would be more important in the case of a trespasser.

In Everett the court were happy to state that night club owners owe a common law duty of care to their patrons in respect of the actions of third parties on their premises - but this duty could only be breached if the owners should reasonably have been aware that the third party was a danger and did nothing, so it must be a duty to take affirmative action in at least some circumstances.

In Cunningham the football ground had a duty of care to the home fans in respect of the actions of the away fans (and reading the case again the fact they were liable under the OLA 1957 as well seems correct, since the concrete stands were 'dangerously dilapidated), and this must be an affirmative duty (even if it was just - don't let the away fans into the ground because they are dangerous).

I suppose it is because by allowing people into nightclubs, visiting fans into football grounds, speedboats onto lakes etc the occupier himself is creating a source of danger, because if he had not permitted that activity the danger would not exist, so there is a common law duty to ensure that people are not harmed by that danger?

(Original post by cliffg)
Thanks a lot Timmona ! My academic year has just ended, I'm beginning to relax into summer, occupiers' liability was done and dusted a year ago, and someone throws a fly into my ointment ! Seriously, though, I've had to re-read some of this material and I'm beginning to change my views - I think. Everett appears to me to suggest that a duty is placed upon the occupier to guard against acts of third parties. That view seemed to be followed in the High Court in Geary v JD Weatherspoon, although again conveniently decided on a different issue. I think the reference to allowing speedboats amongst the swimmers in Tomlinson is very different from suggesting a duty to guard against the actions of one reckless or malicious speedboat driver. Everett, I think suggests otherwise. Did Smith LJ go out on a ridiculous limb in that quote about the worn carpet ? I think she did. Surely the degree of control that an occupier has over a carpet cannot be compared to the degree of control that they have over the actions of a third party. I still prefer the Littlewoods approach of third party actions which were "highly likely" as opposed to "reasonably foreseeable". I think that the authority is now there to argue that the "activities" of a third party come within occupiers' liability, following Everett. In that sense I'm disagreeing with ForumUser (I think) and disagreeing with my original post. I'm not sure that I can welcome the reliance on Australian and Canadian jurisprudence to achieve that extension and in a sense frustrate the aims of Parliament - even if it was a loosely worded Act. Sorry, I haven't even considered Fairchild.

Sorry Cliff

Guys let me look at me look at this in the morning when I've finished criminal conspiracy and get back to you. There are some interesting points in here. Just wanted to say I do plan to get back to it, but I've got exams in 5 days and this isn't the most imminent one, so I need to get criminal done first.

Briefly, I preferred the Goff approach in Littlewoods, and that's the one that's generally been followed, including in Mitchell v Glasgow.