2.3 Occupiers' Liability

Question 1

What is the difference between the Occupiers’ Liability Act 1957 (OLA 1957) and the Occupiers’ Liability Act 1984 (OLA 1984)?

Answer 1

OLA 1957 covers the duty owed in law for lawful visitors
OLA 1984 covers the duty owed to unlawful visitors, also called trespassers

Question 2

What is the occupier’s duty of care as defined in OLA 1957?

Answer 2

The occupier owes a duty to all lawful visitors to keep them “reasonably safe” - delegable duty

Question 3

What constitutes an ‘occupier’?

Answer 3

No definition contained in OLA 1957
s1(2) refers to a ‘person’s occupation or control of the premises’

Question 4

What is the test determined by the court to determine who is an occupier?

Answer 4

It is necessary to look at who has control of the premises. It is possible to be an occupier without having physical possession of the property.

Question 5

What is meant by ‘premises’?

Answer 5

OLA 1957 s1(3)(a): ‘any fixed or movable structure, including any vessel, vehicle or aircraft’

Broad view undertaken by the courts - can include things on the structure (e.g. ladder, derelict boat, splat wall, inflatable sculpture)

Question 6

What is meant by a ‘lawful visitor’?

Answer 6

A person who has permission from the occupier, or who has a statutory right of entry

N.B: permission can be limited, either in time or to a part of the premises

Question 7

What else does the OLA 1957 Act cover?

Answer 7

Contractors- a contractor on the premises is owed a duty of care

Damage to property - OLA 1957 covers damage to property that is suffered by lawful visitors

Question 8

What is meant by a ‘trespasser’?

Answer 8

A person who has not be granted permission by the occupier to be on the premises

Question 9

What is the nature and extent of the duty of care defined in OLA 1957?

Answer 9

“A duty 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 by the occupier to be there”

Question 10

What is the limit of the common duty of care in OLA 1957?

Answer 10

Duty owed only applies to:
- dangers due to the state of the premises or
- things done or omitted to be done on them [premises]

Question 11

How does the court determine whether a duty of care is owed to a visitor?

Answer 11

The courts will look at:
- the purpose for which the visitor is on the premises
- whether there is any risk
- the cost of taking precautions
- what precautions a reasonable person would take

Question 12

What should be considered in relation to duty to children?

Answer 12

The occupier needs to recognise that children will not be as careful as adults.
However: the duty still is not to guarantee that the premises are safe but that the occupier will take reasonable care.

Occupier is not held to the standard of making premises completely safe for small children

Question 13

What should be considered in relation to skilled visitors?

Answer 13

OLA 1957 assumes that a skilled visitor will take appropriate action to deal with the special risks that a person may encounter in the exercise of their calling

Court will consider any specialist skill by the claimant when determining whether defendant has breached the duty of care

Question 14

What should an occupier do to ensure that they adhere to their duty to lawful visitors to keep them reasonably safe?

Answer 14

Dangerous areas: Occupier is expected to prevent the visitor from visiting the are or to put out a notice. The idea behind a notice is to enable the visitor to be reasonably safe.

An occupier is not expected to take precautions if there is an obvious danger

Question 15

What are the defences available under OLA 1957?

Answer 15

1) Contributory negligence
2) Volenti - assumption of risk
3) Warnings
4) The exclusion of the duty of care, which is subject to the provisions of UCTA 1977 and the CRA 2015

Question 16

What is the principle behind liability for independent contractors?

Answer 16

If the occupier has:
- acted reasonably in employing a contractor and;
- has taken reasonable steps to check that a contractor is competent
- the work was properly done

… occupier will not be vicariously liable for any negligence of the contractor. If the occupier does not take such steps, OLA 1957 provides for liability.

Occupier should check to ensure that independent contractor is adequately insured

Question 17

How can an occupier exclude liability?

Answer 17

By using the defence of volenti (done by contract or by notice)

N.B: this is a different type of notice from the warning notice. It is an exclusion clause. Subject to UCTA 1977 if the premises are business premises

Question 18

What is the duty set out in OLA 1984?

Answer 18

“an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned”

Question 19

When is a duty owed in OLA 1984 to trespassers?

Answer 19

1) [O is aware of danger] The occupier is aware of the danger or has reasonable grounds to believe that it exists
2) [O knows or believes that P is in vicinity of danger] The occupier knows, or has reasonable grounds to believe, that someone is in the vicinity of the danger concerned or that they may come into the vicinity of the danger
3) [O reasonably expected to offer P protection from risk] The risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer the non-visitor some protection

OBJECTIVE TEST - duty may be discharged by placing a warning

Question 20

What should be noted about the duty of care in OLA 1984 and property damage?

Answer 20

Under OLA 1984, the duty of care owed to unlawful visitors does NOT extend to property damage - it only covers death and personal injury.

Any property damage caused to a trespasser would need to be pursued via the common law.

Question 21

Is exclusion of liability contained within OLA 1984?

Answer 21

No - exclusion of liability is not contained in the 1984 statute. The view is that the position is unclear as no authority exists on this point.