Occupiers' liability

Question 1

Occupiers’ Liability Act 1957

Answer 1

The Occupiers’ Liability Act 1957 affords compensation for damages caused by the state of a premises (s. Fairchild v Glenhaven Funeral Services Ltd [2002]) under the following conditions:

1. Applicability of the Act
2. Occupier under s.1(2)
3. Premises under s.1(3)(a)
4. Visitor under s.1(2)
5. Nature of the duty under s.2(1)
6. No defences available to the defendant

Question 2

Applicability of the Occupiers’ Liability Acts 1957 and 1984

Answer 2

There must be a danger arising from the ‘unusual and dangerous’ state of the premises (distinguish Tomlinson v Congleton Borough Council [2004] and Rhind v Astbury Water Park [2004]).

Question 3

Occupier

Occupiers’ liability

Answer 3

The common law definition applies (s.1(2) OLA 1957):

The ‘occupier’ is a person with a “sufficient degree of control” over the premises concerned. There may be more than one occupier (s. Wheat v E Lacon & Co Ltd (1966) for both).

Question 4

Premises

Occupiers’ liability

Answer 4

Any fixed or movable structure (s.1(3)(a)):

• Houses
• Offices
• Factories
• Schools
• Lift (s. Haseline v Daw (1941))

Question 5

Visitor

Occupiers’ Liability Act 1957

Answer 5

Visitors are persons with an express or implied permission to be on the premises.

A person’s status as a visitor may be made dependent on certain conditions (s. Harvey v Plymouth City Council [2010]).

Question 6

Nature of the duty under the OLA 1957

Answer 6

Generally, the ‘common duty of care’ “to take such care as is in all the circumstances of the case is reasonable to see that the visitor is reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there” (s.2(2)) will be applied.

There are some exceptions to this rule:

• Increased duty of care for children (s.2(3)(a), s. Jolley v Sutton LBC (2000)), but parents may be held responsible for insufficient supervision (s. Philips v Rochester Corporation)
• Own responsibility of skilled visitors (s.2(3)(b), s. Roles v Nathan (1963))
• Responsibility of the occupier for independent contractors (s.2(4)(b), s. Woodward v Mayor of Hastings (1945))

Question 7

To whom is a duty owed under the OLA 1984?

Occupiers’ Liability

Answer 7

The duty is owed to those other than visitors (s.1(1)(a), persons without permission to enter the land, s. Tomlinson v Congleton Borough Council [2004], Ratcliff v McConnell [1999]) under the following conditions as per s.1(1)(3):

1. Defendant is aware of the danger or has reasonable grounds to believe that it exists; and
2. he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and
3. the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.

Question 8

Nature of the duty under the OLA 1984

Answer 8

The Act provides that “the duty is to take such care as is reasonable in all the circumstances of the case to see that he [the non-visitor] does not suffer injury on the premises by reason of the danger concerned” (s.1(4)). Under the following circumstanes this duty may be modified:

• Increased duty of care for children (s. British Railway Board v Herrington [1972])
• Responsibility of the occupier for independent contractors (s.2(4)(b) OLA 1958, s.1(2)(a) OLA 1984, s. Woodward v Mayor of Hastings (1945))