Occupier's liability Flashcards
Liability of occupiers to visitors
To fall within the 1957 Act a claimant would need to:
* establish that they have suffered loss due to the state of the premises;
* identify the occupier;
* prove that they are a visitor;
* establish that the occupier failed to take reasonable care for the visitor’s safety.
Who is an occupier?
Under both the 1957 and 1984 Acts, the duties owed are imposed on the ‘occupier’ of the premises. Neither Act provides a definition of an occupier. It is necessary, therefore, to look at case law for assistance.
An occupier is defined as someone who has ‘a sufficient degree of control over premises’.
Who is a ‘visitor’?
A visitor who exceeds his express or implied permission becomes a trespasser and will potentially fall under the Occupiers’ Liability Act 1984, which deals with entrants who do not have permission.
Liability of occupiers to trespassers
The common duty of care owed by an occupier under the 1957 Act is owed only to ‘visitors’, a term which excludes trespassers as ‘non-visitors’.
To whom is the duty owed?
The duty under the 1984 Act is owed to people other than visitors. Under the1957 Act, a visitor is someone who has the occupier’s express or implied permission to be on the premises. The 1984 Act therefore applies to persons who do not have such permission, ie trespassers.
As being a trespasser is determined by whether the entrant does in fact have express or implied permission, it does not matter that the entrant is unaware that they are trespassing.
Existence of the duty
Premises
The definition of premises under the 1957 Act is very wide. It includes open land as well as fixed or moveable structures. It also specifically includes vessels, vehicles or aircraft.
The common duty of care
The duty owed by an occupier to visitors under the 1957 Act is called the ‘common duty of care’.
The duty is to take such care as is reasonable in all the circumstances to see that the visitor is reasonably safe in using the premises for the purpose for which they are permitted to be there.
Breach of the common duty of care
Children: The role of ‘allurements’ and parental responsibility is considered
Skilled visitors: In the case of skilled visitors, the occupier’s duty is modified slightly by the 1957 Act, in that the occupier is entitled to expect such a visitor to appreciate and guard against any special risks which are part of the visitor’s job.
Escaping breach by warnings:
Independent contractors:
Causation and remoteness of damages
Having considered the issue of duty of care and breach of duty, the issues of causation (including intervening acts) and remoteness apply to all torts, and a claim under the 1957 Act is no exception
Defences
There are a few arguable defences open to an occupier who has breached their common duty of care.
Defences: Exclusion of liability
The 1984 Act is silent as to whether or not liability can be excluded.
This contrasts with the 1957 Act, which expressly states that liability can be excluded or restricted.
Defences: Consent
The common law defence of consent is preserved for claims under the 1984 Act.
In Ratcliff v McConnell and another [1999] 1 WLR 670, the claim failed because the defendants were able to establish that the claimant was aware of the risk of diving into a partly drained swimming pool with very shallow water and willingly accepted it.
They were, therefore, able to rely on the defence of consent under the 1984 Act and consequently escaped liability.
Defences: Contributory negligence
Trespassers who are injured partly due to their own carelessness and partly due to an occupier’s breach of duty under the 1984 Act will find their damages reduced for contributory negligence.
