The Occupiers Liability Act

Looking at John and Wendy's situation, there are a number of possible claims they may be able to make, which I will discuss in turn. Unfortunately, there may also be a possible claim against John and Wendy, which I will also discuss during the course of this assignment. The first claim that we need to look at, is a possible claim against Northern Gas for the damage caused to John and Wendy's bungalow by the faulty gas mains laid by Dig Deep Ltd, a sub-contractor for Northern Gas.

John and Wendy may be able to claim against Northern Gas for this under the principle of vicarious liability. It is clear that the master is responsible for acts actually authorised by him: for liability would exist in this case, even if the relation between the parties was merely one of agency and not one of service at all. 1 Normally under the law of tort, specifically in this case vicarious liability, an employer is not liable for wrongs committed by independent contractors under the principle of vicarious liability, as there is absence of control on the employer's part.

If we apply this principle to John and Wendy's case, it seems at first that they are not able to claim from Northern Gas for the damage caused to their bungalow. [W]here someone employs an independent contractor to do his work on his behalf he is not in the ordinary way responsible for any tort committed by the contractor in the course of the execution of the work. 2 However, the courts have taken exception to this if the tort committed falls into specific categories, such as cases involving fire escape and cases where the employer is under statutory duty to which he can't delegate.

However, when looking at John and Wendy's case we need to look at the exception the courts take to cases involving hazardous acts. The principle is that if a man does work on or near another's property which involves danger to that property unless proper care is taken, he is liable to the owners… for damage resulting to it from the failure to take proper care, and is equally liable if, instead of doing the work himself, he procures another, whether agent, servant or otherwise, to do it for him.

3 Without a doubt, the laying of gas mains constitutes as a hazardous act, and is therefore within the scope of this exception. However, as well as Dig Deep Ltd being negligent in the installing of the gas mains, Jamie, the site supervisor who inspected and approved the work after it was completed, is also negligent. Looking at the facts of this particular claim, it would be possible for them to make a successful claim against Dig Deep for the damage caused to their property.

In terms of damages they can receive, the amount of damages awarded are calculated according to loss of the property and it's value at the time of the loss, the cost of transporting replacement property if it is appropriate, the loss of reasonably foreseeable profit, loss of use until the property is replaced, repair costs. As well as the damages they are able to receive for the damage to the house, there is also the expense of alternative accommodation to be addressed.

John and Wendy have had to find alternative accommodation during the time their house is damaged, which has proved to be quite expensive and inconvenient. John and Wendy will be able to claim these expenses back under the Civil Liability (Contributions) Act 1978. Now that we have established that John and Wendy are able to claim damages from Northern Gas for the damage caused to the bungalow, we can move on to look at the other possible claims that they can make. Wendy and John's mother may also be able to claim for the shock, and subsequent depression and anxiety suffered due to the damage to the house.

In order to claim for 'nervous shock', it must involve a psychiatric condition such as depression, or post traumatic stress disorder. Originally, it would not have been possible to claim for such illnesses caused by negligence, however, liability for such torts was first accepted where the claimant was also at risk at risk of physical injury as in Dilieu V. White (1901). This policy was then extended to cover fear for close family when they were within the area of impact, as in Hambrook V. Stokes (1925). The widest point in this area of tort came in 1981 in the case of Mcloughlin V.

O'Brian. This case succeeded even though the plaintiff was not a witness to the incident, but it came under Lord Wilberforce's two part test, meaning there was proximity and no policy reason for denying the claim. However, there are now certain criteria for liability in cases involving nervous shock or mental injury, both for primary and secondary victims, contained in the case of Alcock V. Chief Constable of West Yorkshire (1991). Under these criteria, a primarily claimant can be present at the scene and injured as in Page V. Smith (1996), is present at the scene and at risk of harm.

In cases where the shock develops gradually, claimants will not be successful as in Sion V. Hampstead (1994). Many cases focus on the nature of the mental illness, as in Tredget V. Bexley HA (1994). It was decided in this case that the death of a new born baby did cause liability as the distress created the psychiatric disorder. Cases also tend to focus on the causation of the illness, as in Vernon V. Bosely (1996). In this case, there was a link between the death of their children and the grief amounted to a psychiatric disorder.

If we apply all of this to Wendy's case, it would appear that it is possible for Wendy to claim for her depression. The shock she suffered was sudden, and this is proved by her stay in hospital after a panic attack, and she was present at the scene, although after the event, there was still an element of risk involved. As well as this, the explosion could have easily occurred when John and Wendy were present in the house, which looking at all the facts, means that a claim for this would be successful. John's mother however, may not. Again, we need to look at the criteria set out in Alcock V.

Chief Constable of West Yorkshire (1991) for secondary victims. If the claimant proves a close tie with a victim, and witnesses the incident or its aftermath themselves at close hand or sees a close up of the victim on television as in the case of Alcock. In this case the ten appellants had suffered psychiatric injury as a result of the disaster at the Hillsborough Stadium in 1989. None of the appellants had been injured, been in any danger and most hadn't present at the stadium. Based on three elements, proximity, the class of persons making the claim and the means by which the trauma was suffered, the case failed.

If we apply this to John's mother's case, it would appear that it would be difficult for her to make a successful claim as she was not witness to the damage to the property, nor present at the time of the incident. Although she has a close tie with John, see was not directly involved with the incident herself, so the courts would not view her as a 'victim' of it. Now that we have looked at the position of John and Wendy regarding claims they are able to make, we need to now look at the claim made by Eric the Postman against them.

To assess whether this claim against them, we need to look at the Occupiers Liability Act 1957, as this act applies to visitors to the premises. Whatever a person has a sufficient degree of control over premises they ought to realise that any failure on their part to use care may result in an injury to a person coming lawfully there, and thereafter, he is an occupier and the person coming lawfully is his visitor. 4 To determine whether or not Eric has a legitimate claim, we need to look at the scope of the act. Under the act, a visitor is someone the occupier has given express or implied permission to enter his premises.

In this case, John and Wendy have given Eric implied permission to enter his property on the basis that he is exercising a legal calling under section 5(1) of the Occupiers Liability Act 1957. However, can it be said that John and Wendy failed to exercise their duty of care under the act towards visitors to their property? Under section 2(4) of the act, there is no liability for faulty work or construction done by an independent contractor, providing that it was reasonable to entrust the work to them, a competent contractor was hired and where necessary, the occupier checked that the work done was carried out properly.

In John and Wendy's case, it was Northern Gas who ensured that Dig Deep Ltd was competent enough to carry out the work, and the work was checked by Jamie the site supervisor who had several years experience. As well as this, John and Wendy had not actually moved into the property yet. Under the Occupiers liability Act 1957, there is no real statutory definition of 'occupier', so common law test applies. Under this test, an occupier is someone who has control over the premises. As John and Wendy had not moved into the property yet, it would be safe to assume they had no control over their property.

Based on this John and Wendy are not liable for the injury caused to Eric. However, Eric may be able to claim directly from Northern Gas for the injuries suffered. In conclusion, during the course of this assignment I have shown the legal issues surrounding the claims made against Northern Gas and Dig Deep Ltd, as well as the claim made against Wendy and John. In short, John and Wendy will be able to claim for the damage caused by the faulty gas mains installed by Dig Deep Ltd; from Northern Gas as Dig Deep are a sub-contactor to them.

It is also possible for Wendy to claim against them for the mental anguish she suffered due to this, but it would be difficult for John's mother to claim against them as she was not a witness to the damage or the accident. Eric the postman is not able to claim against John and Wendy for the injury he suffered whilst delivering post to their house, but he may be able to claim against Northern Gas, as it was their fault the debris was there in the first place. Although John and Wendy were extremely unlucky in the first instance, it seems that they are able to ensure a satisfactory outcome to this situation.