Occupier liability

Question 1

What was the law before the Act?

Answer 1

Before 1957, liability for harm caused by dangerous premises was covered by the ordinary law of negligence.

Question 2

What did case law do to help the law?

Answer 2

However, case law had developed different levels of protection for different categories of people.

Question 3

What did the Law reform committee?

Answer 3

The situation was widely criticised, and in 1954, a report by the Law Reform Committee recommended legislation to clarify the law. The result was the Occupiers’ Liability Act 1957, which established one standard of care to cover all the different categories of people who enter
premises with permission.

Question 4

Occupier’s Liability

Answer 4

For over a century, the law has recognised that people who occupy land have a duty to look after the safety of others who come onto the land, but in 1957, it began to be regulated by statute with the Occupiers’ Liability Act 1957, which laid down rules about the duty of occupiers towards people who come onto their land with permission. This was followed by the Occupiers’ Liability Act 1984, which set out the duty owed by occupiers towards trespassers who enter their land without permission.

Question 5

Who is an occupier?

Answer 5

Under common law an occupier is the person who controls the premises. They do not have to be the physical occupier, nor the owner; the critical issue is whether they exercise a sufficient degree of control to allow or prevent other people entering. In each case,
whether this level of control is exercised will be a question of fact.

Question 6

Harris v Birkenhead Corporation (1976),

Answer 6

A purchase order allowed the council to take over the premises. The council failed to board up the house and later, a child got into the house and fell from a window. The court held that the council was an occupier, as they had the legal authority to control the premises. The previous owners were excluded from any liability.

Question 7

Wheat v E Lacon & Co (1966),

Answer 7

the defendants owned a public house. It was run by a manager and his wife, who lived on the first floor, and were allowed to take in paying guests. A paying
guest was killed when he fell on the emergency staircase, while trying to get to the bar on the first floor. The House of Lords held that both the manager and the owners were occupiers (but on the facts,­ neither­ was­ held­ to ­be­ in­ breach­ of­ duty ­the­ bad­ lighting­on­ the­ staircase­ was­ caused­ by ­a -stranger removing the bulb, and they were not responsible for the stranger’s actions).

Question 8

What must they occupy?

Answer 8

The Acts impose liability on ‘occupiers of premises’, and premises are defined in s. 1(3) of the 1957 Act as including land, buildings and ‘any fixed or movable structure, including any vessel, vehicle or aircraft’.

Question 9

Liability to visitors: Occupiers’ Liability Act 1957

Answer 9

The central provision of the 1957 Act is s. 2(1), which provides that an occupier of premises owes
a common duty of care to visitors to those premises.

Question 10

Who is a visitor?

Answer 10

A visitor is someone who has express or implied permission from the occupier to enter the premises.
Anyone who enters the property without such permission is a trespasser, whose rights are governed not by the Act of 1957 but by the Occupiers’ Liability Act 1984. Where permission to enter has been given but is then withdrawn while the entrant is still on the property, they are allowed a reasonable time in which to leave; once that expires, the person becomes a trespasser.

Question 11

Implied permission

Answer 11

Permission can be implied from conduct or circumstances. Occupiers are treated as having given
implied permission to people such as meter readers, people delivering goods, and even door-to-door salespeople, and all of these will be legally classed as visitors.

Question 12

Legal rights of entry

Answer 12

The 1957 Act includes in the definition of a visitor anyone who enters premises under a right conferred by law (s. 2(6)) with or without the occupier’s express permission. Examples would be police officers and firefighters carrying out their legal duties.

Question 13

Standard of care

Answer 13

s.2(2) of the 1957 Act provides that occupiers have a duty towards visitors 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 to be there.

Question 14

Ward v The Ritz Hotel (1992)

Answer 14

The claimant fell over a balcony in the defendant’s hotel. The balcony’s rail was lower than the safety standards. Although the standards were not legally binding, the court held that the standards showed there was a need for strict safety regulation in this kind of area and so the hotel had not taken the reasonable care required by the Act. The hotel was found liable.

Question 15

Horton v Jackson (1996),

Answer 15

The claimant was a golfer who was blinded after being hit by a ball. He claimed that the club was in breach of its duty under the Act, as they should have erected a screen between two tees. The court disagreed, there was evidence that a screen would not have prevented the accident. The judge concluded that the existing precautions were reasonable and there was no breach of duty.

Question 16

Darby v National Trust (2001)

Answer 16

A man drowned while swimming in a pond. The wife sued under the 1957 Act, claiming that there was no warning about the danger of drowning. The court disagreed, drowning was an obvious risk, so there was no need to warn against it.

Question 17

Clare v Perry (2005),

Answer 17

The claimant and her partner visited the defendant’s hotel. They decided to leave by climbing over a wall, instead of taking the designated exit. The claimant fell and was injured. The court held that the risk of an accidental fall was different from the risk of someone deliberately climbing over the wall, and the fact that the occupier had a duty to take precautions against the first type of risk did not mean they also had a duty with regard to the second. The claimant’s behaviour was one that could not be reasonably expected of a visitor and so the defendant had not fallen below the required standard of precautions.

Question 18

Children

Answer 18

s.2(3)(a) of the 1957 Act states that an occupier must be prepared for children to be less careful than adults. If the occupier allows a child to enter the premises then the premises must be reasonably safe for a child of that age

Question 19

Perry v Butlins Holiday World (1997),child

Answer 19

A three-year-old boy cut his ear when he fell onto a brick wall at the defendants’ camp. The low wall was built with sharp bricks and was near an open area where children regularly played. The court held that the design of the wall and its position meant that the defendants had breached their duty under the Act.

Question 20

Jolley v London Borough of Sutton (2000),child

Answer 20

The claimant and a friend found an old boat abandoned on a council estate. To repair it, they propped it up with a jack, but this collapsed and the claimant was injured. The council claimed that what the claimant done was an unusual use of the boat and so the accident was not foreseeable. The court held that this was too narrow, what was foreseeable was that children would meddle with the boat, it was not necessary to foresee exactly what they would do. The court pointed out that the council had admitted that the risk of children playing in the boat was foreseeable, and that they should have removed the boat. Preventing the wider risk would have involved the same action and would therefore not have involved any more effort or expense.

Question 21

Glasgow Corporation v Taylor (1922),child

Answer 21

A seven-year-old had died from eating poisonous berries that he had picked from a bush in a park, which was under the control of the corporation. The corporation knew the berries were poisonous, but had neither fenced nor put any warning notice. They were held liable. While the child had no right to take the berries, the court held that by simply leaving the berries (which looked like cherries) there, the corporation had breached their duty of care to the child.

Question 22

Phipps v Rochester Corporation (1955),child

Answer 22

A seven-year-old crossed some open land where the defendants were building houses. The child fell into a deep trench and broke his leg. The defendants were held not liable, as the court could presume that no sensible parent would allow such young children to enter the area, without at least checking first for danger themselves. Although the defendants’ failure to keep children out meant that the claimant had implied permission to be on the land, giving rise to a duty of care, the defendants were not in breach of that duty.

Question 23

Bourne Leisure v Marsden (2009),child

Answer 23

A two-year-old boy drowned in a pond on the defendant’s site. The court held that the park owners did not have a duty to fence off the site, as guests were made aware of the existence of this pond and it would have been clear to any parent that the pond would have presented a danger to any small child.

Question 24

Person in the exercise of his calling,person

Answer 24

s.2(3)(b) of the 1957 Act states that an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so. “Exercising a calling” means the person is on the land for the purpose of their job. The occupier need not take special precautions to protect that person against such a risk, so long as they allow the person to take their own precautions.

Question 25

Roles v Nathan (1963),person

Answer 25

Two chimney sweeps were killed by carbon monoxide gas. The occupiers were held not liable, because they could expect sweeps to be aware of this danger and these sweeps had also been warned of this danger.

Question 26

Ogwo v Taylor (1988),person

Answer 26

The defendant negligently set fire to his house. The claimant, a firefighter, was injured while putting out the fire. The blaze was such that no amount of care by the claimant could have protected him so the defendant could not rely on s.2(3)(b) to avoid liability.

Question 27

Independent contractor

Answer 27

s.2(4)(b) of the 1957 Act provides that where damage is caused to a visitor by a danger due to the faulty execution of construction or maintenance by an independent contractor employed by the occupier, the occupier will not be liable if it was reasonable for the occupier to entrust the work to an independent contractor and had taken steps to satisfy himself that the contractor was competent and that the work had been properly done.

Question 28

Haseldine v Daw (1941),

Answer 28

The claimant was killed when a lift plunged to the bottom. It was held that the building occupiers were not liable as they had fulfilled their duty of care by appointing an apparently competent firm to maintain the lift and the highly technical nature of the work meant that they could not be expected to check whether it had been done properly.

Question 29

Woodward v Mayor of Hastings (1945),

Answer 29

The claimant slipped at school on a step covered in snow, which had been negligent cleaned. The occupiers were held liable for failing to take reasonable steps to check that the work had been done properly, as the nature of the work was such that this could be easily checked.

Question 30

Bottomley v Todmorden Cricket

Club (2003),

Answer 30

The cricket club held a firework display, during which the claimant was injured. The court held that the club could be liable because they had not taken sufficient care to make sure that the contractors were capable of doing the work and had adequate insurance.