8 - Occupiers' Liability Flashcards
What is the nature of ‘occupiers’ liability’ and the statutory framework governing it?
Claims are processed within the framework of negligence, but statute has intervened to provide applicable law, specifically:
- The Occupiers’ Liability Act 1957 (the 1957 Act), which governs an occupier’s duties to ‘visitors’.
- The Occupiers’ Liability Act 1984 (the 1984 Act), which governs an occupier’s duties to others, primarily trespassers.
What must a claimant establish to prove an occupier’s liability to a visitor under the 1957 Act?
To prove an occupier’s liability under the 1957 Act, a claimant must:
- Establish that they have suffered loss due to the state of the premises.
- Identify who the occupier is.
- Prove that they qualify as a visitor.
- Establish that the occupier failed to take reasonable care for the safety of the visitor.
How is the term ‘occupier’ defined, and what case illustrates this definition?
The term ‘occupier’ is not specifically defined in the 1957 and 1984 Acts, requiring reference to case law for clarification.
In Wheat v E Lacon & Co Ltd [1966] 1 All ER 582, it was established that:
- An occupier is defined as someone who has ‘a sufficient degree of control over premises’.
- Control is the most important characteristic; therefore, non-owners can still qualify as occupiers if they have the requisite control.
- Importantly, there can be multiple occupiers of the same premises, as illustrated by the case of Wheat v E Lacon & Co Ltd.
Who qualifies as a ‘visitor’ under the 1957 Act?
Under the 1957 Act, a visitor is defined as someone who has express or implied permission to be on the occupier’s land.
This definition explicitly includes individuals who enter under the terms of a contract and those who enter to exercise any right conferred by law.
If a visitor exceeds their express or implied permission, they are classified as a trespasser and will then fall under the jurisdiction of the 1984 Act.
What is the definition of ‘premises’ under the 1957 Act?
The definition of ‘premises’ under the 1957 Act is notably broad and encompasses:
- Open land.
- Fixed or moveable structures.
- It also specifically includes vessels, vehicles, or aircraft.
What constitutes the ‘common duty of care’ owed by occupiers to visitors under the 1957 Act?
- The ‘common duty of care’ requires occupiers to take reasonable care to ensure that visitors are reasonably safe while using the premises for the purposes for which they are permitted.
- It is essential to note that the duty is directed towards the visitor’s reasonable safety, rather than solely towards the safety of the premises.
How is a breach of the common duty of care by an occupier to a visitor determined?
The occupier must meet the standard of care expected of a reasonable occupier, meaning that they will be in breach if they fail to reach this standard.
Courts consider various factors to assess what constitutes ‘reasonable care’, including:
- Nature of the danger.
- Purpose of the visit.
- Seriousness of the injury risked.
- Magnitude of the risk involved.
- Cost and practicability of the steps required to avoid the danger.
- Duration that the danger had been present on the premises.
- Any warnings provided about the danger.
- The type of visitor present.
How does the 1957 Act address the duty of care owed by occipiers to child visitors?
An occupier must anticipate that children will be less careful than adults when on the premises.
In Glasgow Corporation v Taylor [1922] 1 AC 44, the court found that:
- The poisonous berries on the shrub represented a concealed danger to a young child, necessitating the occupier to take additional precautions, such as warnings or fencing off the shrub.
For very young children, the courts acknowledge that parental responsibility may reduce or eliminate the liability of occupiers, as seen in Phipps v Rochester Corporation [1955] 1 QB 450. E.g., a parent should not have let their children explore a building site without their presence.
The principle laid down in the Phipps case is important. Occupiers will have complied with
their duty to a very young child visitor if they make their premises reasonably safe for a child
who is accompanied by the sort of guardian by whom the occupier is entitled, in all the
circumstances, to expect the child to be accompanied
What modifications does the 1957 Act provide concerning the duty of care for skilled visitors?
The occupier’s duty towards skilled visitors is modified, allowing for the expectation that such visitors appreciate and guard against any special risks inherent to their job. The risk has to be inherent to their job and not to a risk that they could not have foreseen.
For instance:
- A window cleaner injured by a loose handle was expected to guard against this risk, as it was a common risk associated with his profession.
- If another window cleaner, was injured by a defective stair in the house on the way up to clean the windows, the risk was not one he would ordinarily be expected to guard against, and thus the occupier was not entitled to rely on such expectations.
How can an occupier escape liability for injury to a visitor through warnings?
An occupier will satisfy the common duty of care if they warn the visitor of the danger and the warning was enough to enable the visitor to be reasonably safe (s.2(4)(a) OLA 1957).
Where there is adequate warning of any danger, written, visual or oral, eg ‘Danger Keep Out – Lift Shaft’, the occupier may have discharged their duty. The warning should make the visitor aware of what the danger is, where it is and how to avoid it. This will be a question of fact in each case.
It will depend upon what the particular danger was and upon the scope, content and form of the warning.
An adequate warning will mean that the occupier has complied with their common duty of care and, therefore, will not be in breach of duty.
However, to have this effect, the warning must be ‘adequate’.
The mere fact that a warning was given will not suffice to enable the occupier to escape liability. The crucial issue is whether the warning given by the occupier was sufficient to enable the visitor to be reasonably safe. This is a question of fact.
What factors determine the adequacy of warnings by an occupier to a visitor?
The most important factors for a court to consider in deciding the adequacy or otherwise of a warning are:
Nature of the warning: How specific was it? Did it mention by name the relevant danger or was it just a general warning? For example, ‘Danger – Slippery Floor’ is more likely to be adequate than just ‘Danger’.
Nature of the danger: Was it a hidden or an obvious danger? If it was a hidden danger, the warning must be more specific. A general warning (e.g. ‘Danger’) is unlikely to be adequate in such a case.
Type of visitor: Is the injured visitor an adult or a child? A written warning to a child may not suffice to enable them to be reasonably safe. Can the visitor read english? Would the warning be adequate for such person.
Example: In Alice’s stately home, a general warning of ‘Danger’ at the top of steep and slippery steps without a handrail was deemed inadequate for ensuring Bill’s safety after he slipped.
What is the responsibility of an occupier when engaging independent contractors, and under what conditions can they be absolved of liability for the contractor’s work?
Often, an occupier may engage an independent contractor (such as an electrician) to carry out work on their premises.
Provided the occupier satisfies the three requirements under the 1957 Act, they will have discharged their common duty of care. If injury results from the faulty workmanship of the contractor, the occupier is not liable, and the visitor must seek recompense from the contractor.
The three requirements under the 1957 Act are:
- The occupier had acted reasonably in entrusting the work to an independent contractor.
- The occupier took such steps as they reasonably ought to ensure that the contractor was competent.
- The occupier took such steps as they reasonably ought to ensure that the work had been properly done.
This ability to discharge the occupier’s duty of care does not apply to all types of work; the ‘work’ must be ‘work of construction, maintenance or repair’.
Example: In Haseldine v Daw & Son Ltd, the court found that the servicing of a lift was technical work that the occupier could not reasonably check themselves, thus discharging the occupier’s duty by entrusting it to the contractor.
Conversely, in Woodward v The Mayor of Hastings, the occupier was held liable because checking the icy condition of the steps left by a cleaner after their work was completed did not require specialist knowledge.
What are the key considerations regarding causation and remoteness of damage in claims under the 1957 Act for visitors?
After considering duty of care and breach of duty, the issues of causation (including intervening acts) and remoteness apply to all torts, including claims under the 1957 Act.
The claimant must establish a clear link between the occupier’s breach of duty and the injury sustained, taking into account whether any intervening acts affect liability.
If no causation, there is no liability.
How does the defence of consent operate under the 1957 Act for visitors, and what are its requirements?
The 1957 Act preserves the common law defence of consent (volenti non fit injuria).
For this defence to apply, the claimant must:
- Know of the precise risk that causes the injury.
- Show by their conduct that they willingly accepted the legal risk.
Example: A notice at the entrance stating ‘ALL VISITORS ENTER AT THEIR OWN RISK’ is not specific enough to allow the occupier to rely on it, as it does not inform visitors of the precise nature of any risk they might encounter.
Under what conditions can an occupier exclude liability for injuries sustained by visitors, and what are the relevant statutory controls?
An occupier may discharge their common duty of care owed to visitors by adequately warning of relevant dangers on their premises.
If an occupier has breached this duty, they may seek to rely on an exclusion clause or notice to escape liability.
The requirements are:
- Reasonable steps must have been taken to bring the exclusion notice to the claimant’s attention before the tort was committed.
- The wording of the notice must cover the loss suffered by the claimant.
This ability to exclude liability is limited by the Unfair Contract Terms Act 1977 (UCTA) and the Consumer Rights Act 2015 (CRA), which control attempts by business occupiers and traders to exclude or restrict their liability for negligence.
Example: A business delegate injured by a falling shutter in a conference centre cannot have their claim excluded under UCTA, as attempts to exclude liability for negligence causing death or personal injury are void.
