Public liability

Last updated September 01, 2023

Public liability is part of the law of tort which focuses on civil wrongs. An applicant (the injured party) usually sues the respondent (the owner or occupier) under common law based on negligence and/or damages. Claims are usually successful when it can be shown that the owner/occupier was responsible for an injury, therefore they breached their duty of care.

The law of insurance and public liability

In the course of managing any property, one is obligated to comply with laws and statutes administered by government and municipal bodies. These bodies impose various liabilities of which the property owner/manager should be aware.

The most common examples of statute liability are in areas where an individual is required by law to effect insurance, e.g. workers' compensation and motor vehicle compulsory third party.

Property, hotel and operations managers should become familiar with the various types of contracts involved in commercial and retail activities. These cover a wide field but the more significant contracts are:

the head lease or the management agreements
tenancy and casual leasing agreements
contracts with independent contractors for cleaning, lift and escalator maintenance, air conditioning and fire protection maintenance, etc.

The major contractual liability from an insurance viewpoint is undoubtedly found in head lease and management agreements. These require the manager or head lessee to fully maintain, repair and replace the property, if damaged, until expiration of the agreement or lease.

Furthermore, the contracts usually require an indemnity to the owner against liabilities imposed upon the business for injuries and property damage arising out of the use, occupation or management of the property.

Every contract contains covenants imposing responsibilities on one or other of the parties. These should be carefully examined to ensure they are not unduly onerous.

Degrees of duty of care

Owner/occupiers are required to provide a certain level of care. The duty of care is not the same for all people. It is dependent on a number of issues. To assist in establishing the duty of care required it is more clear to divide into groups the individuals who use premises and for what reasons. An example of this would be in the context of a large shopping complex, whereby the following groups of individuals would attract different levels of care.

Invitees

Invitees are people who by some form have been invited into the complex. This invitation can be through marketing and advertising, or it can be implied simply because the building is a shopping complex or hotel. The greatest duty of care is owed to invitees who, in the case of shopping centres and hotels, are mainly customers, contractors and sub contractors. They are there because of the invitation extended to them. The duty of care owed to them is relatively simple.

One must take reasonable care to ensure the premises are safe. They in turn must take reasonable care for their own safety.

If however an invitee spends money for a service, i.e. forms a contract with the owner, increasing the duty of care owed. An example of this could be a games arcade where the invitee pays for a ride on a motorcycle game. If, as a result of playing this game, the invitee is electrocuted, the owner has breached their duty of care and will most likely be found to be liable for any damages.

If, however, the reason for the electrocution was not due to the owner's negligence but a product defect, and the owner has done all that is reasonably expected of an arcade owner to detect and fix this defect, the owner may proceed to sue the supplier of the game. This is because the supplier also owns a duty of care to the arcade owner as well as a contractual duty to provide safe, functioning equipment.

Licensees

These are people who enter premises with the permission of the occupier but, unlike invitees, do so without any economic advantage to the occupier. They come in the hope of doing business with the owner or their tenants and include such people as salesmen, commercial travellers, etc. The duty of care owed to licensees are not quite as extreme as in the case of the invitees.

Trespassers

These are classified as people who intrude onto property without permission. The degree of care owed to trespassers, although slight, nevertheless exists particularly in situations where a source of danger is deliberately created or where small children are involved. An example would be where live wires were left exposed after the centre had closed. If some children entered the premises for some reason, despite that reason, if they were injured the owner of the centre would be liable.

Ballpark model

The ballpark model is a system under which users of a facility do so at their own risk.^[1] The name arises from the fact that visitors to a ballpark bear the risk of getting hit by bats, balls and other objects flying into the stands at high velocities. An example of this type of system is New Hampshire's lack of a requirement that motorists carry liability insurance. The risk of getting hit by a driver who has neither insurance nor the means to pay for damages is borne by other motorists. It is in contrast to the Disneyland model.

Disneyland model

The Disneyland model is a proposed system in which users of a service would bear no risk for damage or injuries they sustain that are caused by others, as full liability would be imposed upon the responsible party (and/or their insurers).^[1] It is in contrast to the ballpark model, under which people use a service at their own risk. The Disneyland model is frequently advocated as a method by which licensure of motorists and their vehicles could be privatized. Before a person would be granted a license plate, they would need to obtain liability insurance without any caps on coverage amount.^[2] The name comes from the fact that at Disneyland, the company is liable for any accidents that befall a customer if they, for instance, ride a ride they were too short for.

Related Research Articles

Negligence is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.

In law, liable means "responsible or answerable in law; legally obligated". Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencies. The claimant is the one who seeks to establish, or prove, liability.

A licensee can mean the holder of a license or, in U.S. tort law, is a person who is on the property of another, despite the fact that the property is not open to the general public, because the owner of the property has allowed the licensee to enter. The status of a visitor as a licensee defines the legal rights of the visitor if they are injured due to the negligence of the property possessor.

In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care to avoid careless acts that could foreseeably harm others, and lead to claim in negligence. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law that the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law between individuals who have no current direct relationship but eventually become related in some manner, as defined by common law.

English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil law, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.

In the law of torts, an invitee is a person who is invited to land by the possessor of the land as a member of the public or one who enters the land of another for the purpose of business dealings with the possessor of the land. The status of a visitor as an invitee defines the legal rights of the visitor if they are injured due to the negligence of the property owner.

<span class="mw-page-title-main">Trespasser</span>

In the law of tort, property, and criminal law a trespasser is a person who commits the act of trespassing on a property, that is, without the permission of the owner. Being present on land as a trespasser thereto creates liability in the trespasser, so long as the trespass is intentional. At the same time, the status of a visitor as a trespasser defines the legal rights of the visitor if they are injured due to the negligence of the property owner.

Premises liability is the liability that a landowner or occupier has for certain torts that occur on their land.

Roles v. Nathan [1963] 1 W.L.R. 1117, [1963] 2 All E.R. 908 is an occupiers' liability case in English tort law. It concerns s.2(3)(b) of the Occupiers' Liability Act 1957, which states,

"An occupier may expect that a person, in the exercise of his calling, will appreciate and guard against special risks ordinarily incident to it, so far as the occupier leaves him free to do so."

The Occupiers' Liability Act 1957 is an Act of the Parliament of the United Kingdom that covers occupiers' liability. The result of the Third Report of the Law Reform Committee, the Act was introduced to Parliament as the Occupiers' Liability Bill and granted the Royal Assent on 6 June 1957, coming into force on 1 January 1958. The Act unified several classes of visitors to property and the duty of care owed to them by the occupier, as well as codifying elements of the common law relating to this duty of care. It also covered the duty owed to parties to a contract entering the property and ways of excluding the liability for visitors. The Act introduced an element of liability for landlords who failed to maintain their properties and were as a result responsible for the injury of a non-tenant, something counter to the previous common law rule in English law. The Act is still valid law, and forms much of the law relating to occupiers' liability in English law along with the Occupiers' Liability Act 1984.

Occupiers' liability is a field of tort law, codified in statute, which concerns the duty of care owed by those who occupy real property, through ownership or lease, to people who visit or trespass. It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises. In English law, occupiers' liability towards visitors is regulated in the Occupiers' Liability Act 1957. In addition, occupiers' liability to trespassers is provided under the Occupiers' Liability Act 1984. Although the law largely codified the earlier common law, the difference between a "visitor" and a "trespasser", and the definition of an "occupier" continue to rely on cases for their meaning.

The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:

The Occupiers' Liability Act 1984 is an Act of the Parliament of the United Kingdom that covers occupiers' liability for trespassers. In British Railways Board v Herrington 1972 AC 877, the House of Lords had decided that occupiers owed a duty to trespassers, but the exact application of the decision was unclear. The matter was then referred to the Law Commission for a report, and as a result the Occupiers' Liability Bill was introduced to Parliament by Lord Hailsham on 23 June 1983. The Act was given the Royal Assent on 13 March 1984 as the Occupiers' Liability Act 1984 and came into force on 13 May.

Wheat v E Lacon & Co Ltd [1966] 1 All ER 582 is a decision of the House of Lords concerning the definition of "occupier" for the purposes of Occupiers' Liability Act 1957. The leading speech in the case was delivered by Lord Denning, during his short tenure as a Law lord.

Burnie Port Authority v General Jones Pty Ltd is a tort law case from the High Court of Australia, which decided it would abolish the rule in Rylands v Fletcher, and the ignis suus principle, incorporating them generally into the tort of negligence.

Donoghue v Folkestone Properties Limited (2003) is an English court case heard in the Court of Appeal of England and Wales concerning the tort of occupiers' liability from the Occupiers' Liability Act 1984.

The Defective Premises Act 1972 is an Act of the Parliament of the United Kingdom that covers landlords' and builders' liability for poorly constructed and poorly maintained buildings, along with any injuries that may result. During the 19th century, the common law principle that a landlord could not be liable for letting a poorly maintained house was established, while a long-running principle was that, in practice, builders could not be sued for constructing defective buildings. The courts began to turn against the first principle during the 20th century, imposing several restrictions on the landlord's immunity, but the landlord was still largely free from being sued.

Dutton v Bognor Regis Urban District Council [1972] 1 QB 373 is an English contract law and English tort law case concerning defective premises and the limits of contract damages. It was disapproved by the House of Lords in Murphy v Brentwood DC and is now bad law except in Canada and New Zealand.

Vehicle insurance in the United States is designed to cover the risk of financial liability or the loss of a motor vehicle that the owner may face if their vehicle is involved in a collision that results in property or physical damage. Most states require a motor vehicle owner to carry some minimum level of liability insurance. States that do not require the vehicle owner to carry car insurance include Virginia, where an uninsured motor vehicle fee may be paid to the state, New Hampshire, and Mississippi, which offers vehicle owners the option to post cash bonds. The privileges and immunities clause of Article IV of the U.S. Constitution protects the rights of citizens in each respective state when traveling to another. A motor vehicle owner typically pays insurers a monthly fee, often called an insurance premium. The insurance premium a motor vehicle owner pays is usually determined by a variety of factors including the type of covered vehicle, marital status, credit score, whether the driver rents or owns a home, the age and gender of any covered drivers, their driving history, and the location where the vehicle is primarily driven and stored. Most insurance companies will increase insurance premium rates based on these factors, and less frequently, offer discounts.

Kondis v State Transport Authority, was an Australian court case decided in the High Court of Australia on 16 October 1984. It concerned the liability of an employer for the injury of an employee, and specifically whether the duty of care to provide a safe system of work could be delegated. It had been challenged on the basis that the person whose negligence had directly caused the injury was not actually an employee, but an independent contractor, and the duty of care to provide a safe system of work had been delegated to them at the time of the injury. However, it was found that the duty of care could not be delegated in certain cases, and the employer was found liable.

References

1 2 Roth, G. (2017). Street Smart: Competition, Entrepreneurship and the Future of Roads. Taylor & Francis. ISBN 978-1-351-48789-4 . Retrieved 2021-05-02.
↑ On the Road: Newsroom: The Independent Institute

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[Roth17-1] 1 2 Roth, G. (2017). Street Smart: Competition, Entrepreneurship and the Future of Roads. Taylor & Francis. ISBN 978-1-351-48789-4 . Retrieved 2021-05-02.

[2] On the Road: Newsroom: The Independent Institute

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