Occupier's liability

Question 1

Give an overview of occupier’s liability

(e.g. area of law, basis, features..)

Answer 1

• Extension of the law of negligence
• based on statute
• concerns particular duties and responsibilities owed by occupiers of land to people using that land, whether they be visitors or trespassers
• concerned with loss caused by the state or condition of the premises or things done or omitted to be done during the occupation of such premises.
• Claims in occupiers’ liability arise where the claimant has injured themselves because of the state of the premises controlled by the occupier.

Question 2

What are the 2 main statutory regimes for occupier’s liability? What does each one cover?

Answer 2

1) The Occupiers’ Liability Act 1957 (OLA 1957) deals with the duty owed by occupiers to visitors.

2) The Occupiers’ Liability Act 1984 (OLA 1984) addresses the duty owed by occupiers to non-visitors.

Question 3

Is there a DoC owed to a visitor?

Answer 3

yes, automatic DoC

Under s2(1) of the OLA 1957, “An occupier of premises owes a duty of care to all their visitors”.

note: duty relates to the ‘premises’ rather than an ‘activity’ on the premises

Question 4

Is there an automatic DoC owed to a trespasser?

Answer 4

no - OLA 1984

Question 5

What are the 3 main claims under occupiers liability?

Answer 5

• Personal injury
• Property damage.
• Consequential economic loss

Question 6

What 3 elements need to be established for OLA 1957 to apply?

Answer 6

(1) Occupier

(2) Premises

(3) Visitor

Question 7

who is considered an occupier?

Answer 7

• occupier’ is someone who has a sufficient degree of control over the premises (Wheat v Lacon [1966].
• generally liability is based on occupancy or control, not on ownership.
• There could be more than one occupier.

Denning’s 4 categories of occupiers:

(1) If the landlord does not live on the property, the tenant is the occupier;
(2) If the landlord retains some part of the premises, e.g. common areas like stairways, they are the occupier of those parts;
(3) If the landlord issues a licence, they remain an occupier (as in Wheat); and
(4) If the occupier employs an independent contractor, they generally remain responsible (Bailey v Armes (1999).

Question 8

who is considered a visitor?

Answer 8

• same approach in common law and statute
• visitors include those with lawful authority and contractual permission to be on the premises
• express and implied permission

Question 9

When considering who is a visitor, what are the 5 categories of permission which may be afforded (such that a person is considered a visitor rather than a trespasser?)

Answer 9

i) Express permission, and/or licence to the on the premise are lawful visitors

express permission can be limited by notice to: are, time, purpose -> if conditions are breached then there is no permission and visitor becomes a trespasser

ii) implied permission -> permission linked to occupier’s behaviour

e.g. postman has an implied person to be on the premises when they are walking up to the letter box to deliver letters.

iii) Lawful authority -> e.g. police officers with a warrant; persons with statutory right to enter as lawful visitors; emergency services

iv) Contractual permission

v) doctrine of allurement -> note not a very important doctrine since OLA 1984; Essentially children that would otherwise be classed as trespassers, are classed as visitors because children are seen as being allured onto certain dangerous premises and occupiers should be aware of this, and take necessary precautions

Question 10

If a DoC is owed under OLA 1957, what is the standard of care D must meet?

Answer 10

Section 2(2) OLA 1957 standard of care: the reasonable occupier, and is thus an objective test.

“The common duty of care is 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.“

Focus on the safety of the visitor rather than the premises.

“the” visitor; not a hypothetical or general visitor; concerned with the characteristics of the particular visitor.

Higher standard of care for children; but occupier may be entitled to assume that the child will be subject to parental care.

Lower standard of care owed to professionals - skilled visitor may be better able to guard against special risks linked to their own work.

Question 11

What are some considerations for the court when determining if D has fallen below the standard of care?

Answer 11

same test as for general negligence:

Balancing act between likelihood of harm, magnitude of harm, practicality of precautions, resources available to the defendant etc. Tedstone v Bourne Leisure Ltd [2008] and Laverton v Kiapasha [2002].

Question 12

Can an occupier discharge DoC through warnings? If so, how?

Answer 12

Yes.

section 2(4)(a) of the OLA 1957 the defendant discharges their duty of care if the warning was enough to enable the visitor to be reasonably safe.

warning must be clear as to what the danger is, where the danger is and how to avoid it.

Question 13

Can an occupier discharge DoC through an independent contractor? If so, how?

Answer 13

Yes.

Occupier may escape liability if they acted reasonably in entrusting the work to the independent contractor.

Note: this is an exception to the general rule that occupier liability is non-delegable

2(4)(b) OLA 1957, occupier must show that they:

1) acted reasonably in hiring an independent contractor, 2) in selecting the independent contractor and 3) in supervising and checking that the work was properly done.

Question 14

What are the 2 main defences to occupier liability?

Answer 14

1. Consent/ volenti

Section 2(5) OLA 1957. The legal test for this defence is that the claimant must be fully aware of the particular risk and through their conduct willingly accept the risk.

White v Blackmore [1972] Volenti did not apply as the claimant was not fully aware of the particular risk caused by the inadequate barrier.

Titchener v British Railway Board [1983]  A 15 year old consented to the risk when she walked through a gap in the fence onto a live railway line (linea ferroviaria in tensione).

2. Contributory negligence

Section 2(3) OLA 1957 provides that in determining the common duty of care “the degree of care, and of want of care, which would ordinarily be looked for in such a visitor” is taken into account. The courts have interpreted this as providing for the defence of contributory negligence.

Where the claimant is a child, the child will be judged against a reasonable child of the same age. Young v Kent CC [2005]

Question 15

Can exclusion clauses validly exclude/ limit/ modify liability under OLA 1957? If so, to what extent?

Answer 15

Yes

Section 2(1) OLA 1957 preserves the common law right that the occupier can:
“…in so far as he is free to and does extend, restrict, modify or exclude his duty…”

Question 16

What are the 4 restrictions on an occupier’s ability to validly use exclusion clauses?

Answer 16

1. Section 3 OLA 1957;
2. Unfair Contract Terms Act 1977 (‘UCTA 1977’);
3. Consumer Rights Act 2015 (‘CRA 2015’); and
4. Common law.

Question 17

How does Section 3 OLA 1957 limit an occupier’s ability to restrict use of an exclusion clause?

Answer 17

an occupier cannot by contract exclude or restrict the common duty of care which he owes to a third party.

So where an occupier is bound by a contract to allow strangers to the contract to enter or use their premises, the duty of care owed to those strangers as visitors cannot be restricted or excluded by the contract.

Question 18

How does UCTA 1977 limit an occupier’s ability to restrict use of an exclusion clause?

Answer 18

applies to B2B liability

The occupier cannot exclude or restrict liability for death or personal resulting from their negligence.

They can only exclude or restrict liability for other types of loss if the term or notice satisfies the requirement of reasonableness.

Question 19

How can common law limit an occupier’s ability to restrict use of an exclusion clause?

Answer 19

judged against the principle of ‘common humanity’ given in British Railway Board v Herrington. This represents the minimum legal standard of care which can never be excluded by agreement or notice.

Would a conscientious person with the defendant’s knowledge, skill and resources be reasonably expected to have done something which would have helped to avoid the accident (rather than just rely on exclusion/ restriction)?

In regards to the OLA 1984, the act is silent as to whether it is possible to successfully exclude liability. It is likely the same common law approach would apply as to the OLA 1957 – the principle of common humanity.

Question 19

How does CRA 2015 limit an occupier’s ability to restrict use of an exclusion clause?

Answer 19

applies to contract/notices between a consumer and trader

Like under UCTA, the occupier cannot exclude or restrict liability for death or personal resulting from their negligence, and they can only exclude or restrict liability for other types of loss if the term or notice is fair.

Question 20

What statue governs occupier liability for non-visitors?

Answer 20

OLA 1984

Question 21

Broadly, what does OLA 1984 do?

Answer 21

OLA 1984 imposes a duty on the occupier to take reasonable care to see that trespassers do not suffer injury on their premises by reason of the danger concerned.

Question 22

How does Robert Addie & Son (Collieries) Ltd v Dumbreck define a ‘trespasser’?

Answer 22

“He who goes on to the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to”.

Question 23

Is a C under OLA 1987 automatically owed a DoC?

Answer 23

non-visitor not automatically owed a DoC

Question 23

What is the 3-stage test for determining whether a non-visitor is owed a DoC?

Answer 23

1. D is aware of the danger or has reasonable grounds to believe that it existed.

(This is a subjective test); ‘Reasonable grounds’ requires actual knowledge of facts which would lead a reasonable occupier to be aware of the danger. In Rhind v Astbury Water Park Ltd [2004] no knowledge of the danger amounted to no duty owed.

2. D was aware/ had reasonable grounds to believe that someone was in the vicinity of danger concerned or that they may come into the vicinity of danger at the time of the accident.
3. Risk is one against which, in all the circumstances of the case, they may reasonably be expected to offer the trespasser some protection.

this is an objective test

Question 24

If a duty to a non-visitor is owed, how is breach determined?

Answer 24

• effectively the same as under general negligence

– all the circumstances must be considered such as likelihood of harm and magnitude of harm, practicality of precautions, utility of defendant’s conduct.

• The court is unlikely to have as high expectations as to how an occupier should care for a non-visitor as it would for how an occupier should care for a visitor.
• Whether the defendant knew that non-visitors visited the premises, and if so, what precautions the defendant took to deal with this, are likely to be highly relevant.

Question 25

What can an OLA 1984 warning notice do?

Provide an example.

Answer 25

that the duty may be satisfied if the occupier takes all reasonable steps “to give warning of the danger concerned or to discourage persons from incurring the risk”.

This is an easier way to satisfy the duty under the 1984 Act than it is under the 1957 Act.

For example, physical barriers can be enough to discourage trespassers from taking the risk. Titchener v British Railway Board [1983].

A notice will satisfy the occupier’s duty if it sufficiently discourages the claimant from trespassing. But this will be harder where the claimant is a child as they may be too young to read or fully appreciate the danger and the notice.

Question 26

What are the 3 main defences to OLA 1984?

(non-visitor occupiers liability)

Answer 26

1. Consent

• Full defence
• Ratcliff v McConnell and Harper Adams College [1997]  In this case the claimant was said to have given his consent as he was well aware of the risks of diving into a shallow pool, and he could not rely upon the fact that he was drunk. He was of full capacity and had voluntarily chosen to engage in an activity which carried an inherent risk.

2. Contributory negligence
   - partial defence
   - not included in OLA 1984 but has been relied upon in common law
3. Exclusion clauses
   - OLA silent as to whether it is possible to exclude liability -> to be determined via common law
   - OLA 1984 lays down a bare minimum that cannot be evaded;
   - Second, that if this were the case, then it would be unfair as trespassers would be in a better position than lawful visitors, a situation clearly contrary to the policy of the OLA 1984.

note: likely that the same common law restriction would apply as to the OLA 1957. However, the provisions of UCTA and the CRA would not apply.