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Posted By Jasonjg
After recent discussions on this forum, I feel I am following it all a little bit better however one last thing is eluding my understanding and it is doing my head right in.
I am currently finishing my law assignment and have covered pretty much everything I need except occupiers liability.
Now, as I understand it, this deals with premises more so than persons or acts but does this mean that a legionella outbreak is not covered.
What I mean to ask is the following,
Does a disease that originates from a water system within a building give rise to a breach of stat duty under occupiers liability or is this a plain no and I should stop worrying.
I am hoping it is a no because then I may save some space in my assignment.
I know it looks like I am confusing myself but it is funny how one small detail will throw someone off for the night when they are supposed to be typing up the work.
I have gotten to the stage where I have looked too deep into this one and now I am over analysing thus questioning my own judgements arrrrrghhh.
Jason
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Posted By Jasonjg
Just to re-phrase the question.
I know it is more likely to go down another breach of stat duty or negligence route but I was just wondering if it was at all possible for a member of public to attempt this route in the remotest sense.
Jason
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Posted By colin huskisson AWMSoc AIIRSM
under the Occupiers Liability Acts of 1957 and 1984 u have a duty of care to ensure that the premises are in such a state as to be reasonably safe.
The ACOP L8 para 70 states Who ever designs,manufactures,imports or supplies water systems that may create a risk of exposure to Legionella should, so far as is reasonably practical,
I look after a lot of hotels throughout the UK and their occupiers liability insurance proforma asks what they are doing to manage and control the risk of exposure to legionella.
So in effect you are liable under the occupiers liability act and HSAW Act 1974 section 3 & 6, as amended by the Consumer Protection Act 1987,
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Posted By Jasonjg
Thanks Colin
That has helped me no end.
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Posted By Jonathan Sandler CMIOSH
I have just read this on a claims web page:
Under the Occupier’s Liability Acts 1957 and 1984, the owners, occupiers and managers of business premises are duty-bound to do all that they reasonably can to ensure the safety of customers and patrons.
That same common duty of care extends to tradesmen, contractors, suppliers, clients, visitors and to any other members of the public who have a legitimate reason for being on the occupier’s premises. Any person injured as a direct consequence of an owner, manager or occupier’s negligent failure to provide safe premises may sue for damages in court. He or she is also liable to prosecution under the Health and Safety at Work, etc Act 1974.
Interesting.
Now to throw a spanner in the works Jason.
You have been asked to renovate the internal parts of a grade 1 listed building built in 1876, the plaster containing animal hair has not been touched since it was built, what is your duty of care to your neighbours?
Regards
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Posted By Jasonjg
Jonathan
That last paragraph was just evil lol. Here is poor me struggling to get to the ins and outs of something and being one who is usually unable to resist to find a answer to any given question, you throw that at me.
I now know Occupiers liability is covered in such circumstances i.e. water systems.
Now I need to establish what is the most commonly used action in such cases.
Is it Negligence, Breach of stat duty under COSHH or Breach of stat duty under Occupiers liability?
Negligence seems to point to bigger payouts but is supposed to be harder to prove.
Breach of stat duty under COSHH is more directly related to disease and ill health from such cases and may be easier to prove than breach of occupier’s liability or would it?
So my next question would be: -
Apart from the difficulties or ease of the test to establish each stat duty breach, is their any particular favourite stat duty breach that ones barrister would attempt to succeed and why?.
Jonathan
When I have finnished my assignments, I will get back to you on that spanner lol.
Best Regards
Jason
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Posted By Robert K Lewis
Just to add to the flavour of this case this has just passed through the courts on Occupiers Liability. There are no specific statutory duties as the act refers to general duties and can be likened to section 2 etc.
An 11 year old child who had climbed the outside of a fire escape was not at risk of suffering injury by reason of any danger due to the state of the premises within the Occupiers' Liability Act 1984 s.1(1)(a) but had put himself at risk through his own choice to indulge in a dangerous activity. If there was a danger attributable to the state of the premises, thus giving rise to a potential duty, the content of the duty might vary according to whether the trespasser was a child or an adult, but until that point was reached, then in the general run of cases, the age of the trespasser was not relevant.
Appeal allowed
I think the courts are beginning to row back on some things perhaps. It will be interesting to see how this case is used in future.
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Posted By DJ
I think some respondant's are confusing an Occupier's common law duty of care with an Occupier's duty under OLA. They are not one and the same.
Although there is conflicting case law, the prevalent view is that OLA is confined to situations in which the condition of the premises itself is dangerous and does not cover dangerous activities (such as legionella), which which just happen to be present there.
An employer's common law duty is of course much wider and this would of course include protecting people from the risk of Legionella.
I hope this helps.
Regards.
DJ
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