Occupier's Liability Act 1957

Question 1

What does the 1957 Act provide?

Answer 1

States that an occupier owes a duty of care to visitors relating to any dangers posted by the state of the premises or by things done to omitted to be done on them. s.1(1)

Question 2

What case defines what an occupier is?

Answer 2

Wheat v Lacon [1966]
The statue does not provide a definition but s.1(1) states that the tules of common law applies

“An occupier is a person with sufficient control over premises, that he ought to realise any failure on his part to take care may result in injury to a visitor”

Question 3

Do you need to have physical possession for you to be an occupier? Provide a case

Answer 3

An occupier may not be an owner.
Harris v Birkenhead Corporation [1975]
- A tenant was served with a compulsory purchase order
- Which stated that the corporation would enter and take possession of the property
- Allowing them to take ownership go the premises 14 days later
- Three months later, the corporation had not secured the property
- A 4 year old who entered the property fell out the window and got injured
- Even though the corporation had never been to the premises, they became the occupier as soon as the previous tenant left. They had control over the property

Question 4

What must an occupier occupy? Provide two cases

Answer 4

s.1(3)(a)
1. Land
2. Building
3. Any fixed or movable structure : vessels, vehicle or aircraft
Bunker b Brand
Wheeler v Copas

Question 5

Can the claimant have express or implied permission to be on the premises?

Answer 5

A person’s presence on premises could be lawful because: (1) Express permission had been given by the occupier

(1) There is implied permission (includes a postman or deliveryman)
(3) Entry is authorised by law (e.g. police officer with a search warrant, meter-reader, electrical official to turn off the supply s.2(6))

Question 6

What did lord Scrutton say in Carlgarth [1927]?

Answer 6

“When you invite a person into your house to use the stairs, you do not invite him to slide down the banisters”

Question 7

What does the 1984 Act say about non-visitors?
What about a person using a right of way - are they visitor or trespasser? Provide a case (Northern Ireland Housing Executive [1994]

Answer 7

The act refers to trespassers as person other than visitors.
Northern Ireland Housing Executive (1994)
- The appellant was walking along a public foot path which went across the defendants land
- She tripped in a hole and was injured and sued the defendant
- She failed in her claim. The HOL confirmed that people who use public rights of way, are neither visitors nor trespassers

Question 8

What did Lord Kieth say in Northern Ireland Housing Executive about right of way?

Answer 8

Rights of way pass over many different types of terrain and it would place an impossible burden on landowners…if hey were under a duty to maintain them in a safe condition”

Question 9

What about a person who uses a private right of way?

CASE? Holden v White [1982]

Answer 9

• The claimant was a milkman and he was injured on the defendants land by a manhole
• He was delivering milk to the house of the third party, who had a right of way across the defendant’s land
• It was held that he was not entitled to claim against the defendant since he was exercising a right of way and therefore was not a lawful visitor of the defendant

So people who overstep or use their permission became trespassers

Question 10

What was the facts in the case of Ruth Geary v JD Wetherspoon [2001]?

Answer 10

• The claimant had attempted to slide down the banisters in a public house and had fallen and got injured
• The defendant was held not to be liable as the claimant had voluntarily assumed the obvious risk inherent in sliding down the banister

Question 11

What is said in s.2(2) of the 1957 Act?

Answer 11

The common duty of care is a duty to take such care as in all circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited to permitted to be there

Question 12

What happens if a person is injured not because of the premises but his activity?
Trustee of the Portsmouth Youth Activities Committee v Gary Christopher [2008]

Answer 12

• The claimant fell and was badly injured, he claimed under the 1957 Act and in negligence
• The court rejected his claim under s.2 of the Act as the injury was not due to the state of the premises, but to his activity there
• Appeal held: the defendant had no duty to protect the claimant from risks which were obvious in an activity undertaken voluntarily

Question 13

What did Lord Justice May say in Trustee of the Portsmouth Youth case?

Answer 13

“Adults who choose to engage in physical activities which obviously give risk to a degree of unavoidable risk may find that they have no means of recompense if the risk materialises so that they are injured”

Question 14

What are the facts in Cole v Davis [2007]?

What did Lord Justice say?

Answer 14

• C was injured whilst crossing the village green by a hole left by D
• The appeal was dismissed. The hole had been covered by D, but was removed by a third-party

“The law imposes no absolute duty in circumstances like this to keep the area of land in question safe”

Question 15

What about the degree on care depending on the visitor?

Cornwall County Council [2013]

Answer 15

• T had an accident walking home in the dark, along a pathway two meters above the road
• She follows a fence which only covered a section of the path and fell on the road
• The laical authority were found liable at first instance.
• The court of Appeal held that the judge had left out two material factors (1) C had been walking in an unlit area without a torch after a few drinks in new shoes
  (2) a degree of care that was to be executed of an ordinary visitor
• The court said there was no breach of duty and the appeal was allowed

Question 16

What are the facts in Glasgow v Taylor [1992]

Answer 16

s.2(3)(a) An occupier must be prepared for children to be less careful than adults

• A 7 year old died from eating poisonous berries that he picked from a bush
• The corporation knew the berries were poisonous, but it had not fenced off the area nor put a warning sign
• The court said than an occupier is entitled to assume, however, that they very young child will be supervised by competent adults
• But the principle of allurement applied

Question 17

S.2(3) needs for the occupier to have regards of any vulnerability of their visitor
Case? Pollock v Cahill [2015]

Answer 17

• C was blind guest at the house of D and was in a bedroom with a low window
• He fell from the second floor window, which had been left open, he sustained brain and spinal injury
• The wife had opened the window which created an obvious risk for a blind visitor
• The court said the occupiers had failed to discharge their common duty of care - the window should have been closed

Question 18

What happens in situations where a child is involved?

Answer 18

Children invited onto a premises are owed a common duty of care. The occupier is required to ensure that the premises is kept reasonably safe.

Question 19

What are the facts in Phillips v Rochester [1995]?

Answer 19

• A 5 yer oda was out with his 7 year old sister, who fell into a trench on land that was us by local children as a play area
• D knew of this, but taken no steps to keep the children out
• It was held that D was not liable on the facts as no reasonable parent would allow such young children to enter into such an area alone

Question 20

What did Lord Devlin say in Phipps v Rochester [1955]?

Answer 20

“The responsibility for the safety of little children must rest primarily upon the parents. It is their duty to see such children are not allowed to wander about by themselves…”

Question 21

What did Lord Moeses in Bourne Leisure v Marsden [2009]?

Answer 21

“the defendant ought reasonably to have anticipated that small children might escape the attention of parents and wander into places of danger. But it by no means follows that the occupier is under a duty to take precautions against such danger”

Question 22

What are the facts in Jolley v Sutton?

Answer 22

• C a 14 year old boy and his fried found an old boat abandoned on the estate in which they lived
• They repaired with a jack
• The jack collapsed and the boost fell on C
• He was badly injured
• The council argued that such an accident was not foreseeable and admitted that the boat should have been removed
• HOLD: It was foreseeable that children would meddle with the boat BUT occupiers is entitled to assume very young children will be supervised

Question 23

What about situations involving special skills under OLA 1957?

Answer 23

S.2(3)(b) 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, in so fat as the occupier leaves him free to do so

Question 24

What are the facts in Roles v Nathan [1963]?

Answer 24

• Two chimney sweeps were not protected by the act, as this should have recognised the danger of carbon monoxide gas escaping from a boiler chimney

So if there is a risk or danger inherent in a person’s work the you would exert that a person to Gard against those risks as opposed to the occupier taking special precautions to protect that person from those risk

Question 25

What are the facts in Jamie Alexander Yates v National Trust [2014]?

Answer 25

• A tree surgeon fell from a tree and was injured
• The injury was due to the activity of his job
• Thus there was no duty of care owed by the Trust to him
• s.2(3)(b) would apply because Yates would have been expected to guard against the risk associated with the occupation

Question 26

What are the facts in Salmon [1983] to occupiers owing duty to specialist skill people?

Answer 26

• A fire has been caused by D’s negligence, and a fireman was injured when the was thrown off the roof
• The court held that the occupiers duty in causing fire on his premises towards a fireman included the risk associated with the fireman’s occupation
• It was foreseeable that a fireman would be injured though the negligence of the occupier, the occupier was in breach of his duty of care

Question 27

What are the facts in Ogwo v Taylor [1987]?

Answer 27

• D had negligently started a fire when using a blowtorch
• C was a fireman who was inured
• It was held that he was owed a duty as he was only there in the exercise of his calling because of D’s negligence
• The fireman had taken formal precautions that he had guarded against the normal risks (worn protective clothing)

Question 28

What happens in situations relating to independent contractors under OLA 1957?

Answer 28

S.2(4)(B) An occupier is not liable for damage/injury caused by faulty execution of consecration, maintenance or repair work done by an independent contractor

(1) The contractor was competent
(2) The work had been properly done

Question 29

What was held in the case of C A Daw & Son [1941]?

Answer 29

The court held that the occupier had discharged his duty by giving his job to a competent lift engineer, as he could not be executed to have the exorcise to check such specialist work himself, and therefore he was not liable”

Question 30

What are the facts in Woodward v Major [1945]?

Answer 30

• A pupil was injured slipping on an icy step which a cleaner had left in a dangerous state
• The occupier was liable for the cleaner’s negligence in this case because he should have checked that the snow had been properly cleared from the steps

Question 31

What was said in the case of AMF International v Magnet Bowling [1968]?

Answer 31

Where independent contractors have sufficient control over the premises they could became occupiers for the purposes of the Act during the execution of work

Question 32

How can occupiers discharge of their duty (putting up warning signs)

Answer 32

Where the warning of danger is sufficient to enable the visitor to be reasonably safe it will amount to a discharge of the occupiers duty of care
s.2(4)(a)
Rae v Mars [1990]
In cases of extreme danger or when usual danger exist the visitor should not only be warned but a. carrier or other notice should be placed to show the immediacy of the danger

Question 33

No need to warn of an obvious danger…EXPAND

Darby v National Trust [2001]

Answer 33

There is no obligation to warn of an obvious danger where the visitor ought to be aware of the danger and to take his own precautions

• A man had drowned while swimming in a pool in a pond
• His widow sued the National Trust under the act, on the basis that they should have had signs warning of the danger
• The court held that the danger of drowning was an obvious risk, and so there was no need to erect warning signs

Question 34

What if the danger is not obvious?

English Heritage v Taylor [2016]

Answer 34

• C was injured when he fell down a very steep path on D’s property
• The path was not part of the official route but D knew that sometimes visitors used it and had put three warning signs
• However, there was no signs where C accessed the path
• There was a duty to warn visitors - However C was 50% blameworthy as he should have considered the risk

Question 35

Can there be a discharge of duty to care?
Laverton [2002]
Maddison v Somerset [2011]

Answer 35

Yes. This is the matter for the judge to decide.

Laverton:

• The court said that there was no breach of the duty of care from failing to mop a wet floor in a shop that was full of people
• The law does not require an occupier to take measures which would completely prevent any accident from occurring, all that is required is the exercise of reasonable care

Maddison:
- The School was not held liable to a pupil who slipped and fell on a wet floor in the brief period of time between its starting to rain and the placement of wet weather sign preventing pupils from enraging the premises by that route

Question 36

Exclusion of liability under OLA 1957

Answer 36

S.2(1) contemplates that an occupier may be ‘free to…extend, restrict, modify or exclude his duty’
HOWEVER…
Business occupiers are subject to UCTA (business to business) and the consumer Rights Act 2015 (business to consumer)

Under UCTA 1977 s.2(1), any attempts to exclude liability for death or personal injury by negligence will be void. Any attempt to exclude liability for property damage will be subject to the test of reasonableness

Under CTA 2015 s.65(a) (business occupier) cannot exclude or restrict liability for death or personal injury resulting from, negligence and with regard to any other loss or damage, such a clause is subject to the test of ‘fairness’ under s.62

Question 37

Defence of Consent
Clare v Rodrick [2005]
Ruth v JD Wetherspoon [2011]

Answer 37

Consent: The defence is volenti non fit injuria under s.2(5) - occupiers do not owe a duty to visitors in respect of risks willingly accepted by them

Clare:
- The court of Appeal held that C’s conduct was foolish and D had not fallen below the required standard of care by not fencing the area off

Ruth:
D was not liable as C had voluntarily assumed the risk of sliding down the banister

Question 38

Defence of contributory negligence

Answer 38

s.2(3), the. courts may take into account the degree of care the visitor is excepted to show for their own safety. If they are founded to contribute to their own injury damages would be reduced.