Occupiers Liability

Question 1

What is the duty of care owed under the Occupiers Liability Act 1957?

Answer 1

An occupier owes a duty of care to all lawful visitors on the premises in respect of dangers posed by the state of the premises.

Note it is the state of the premises that must cause the harm, not any activity done on the premises.

For a duty of care to apply, it must have arisen. For a duty of care to arise under OLA 57:

1. the defendant needs to be occupier +
2. the claimant needs to be a visitor +
3. of premises

Question 2

Who is an occupier for the purposes of the occupiers’ liability act 1957?

Answer 2

The occupier is someone who controls the premises. This does not have to be the actual owner, but someone who has day-to-day responsibility for the upkeep and running.

Question 3

Are contractors occupiers of property?

Answer 3

Contractors working on the premises can the occupier of the area they are working in. This is because the contractor has control over that area of work. The owner of the premises will also be liable at the same time.

Question 4

How can an occupier discharge their duty with respect to independent contractors?

Answer 4

Can discharge their duty, and therefore leave only the contractor with a duty over a certain area if:

• they entrusted work to the independent contractor
• ensured the contractor was competent
• they checked the job being done if the contractor had provided a basic service - but if work is really technical don’t need to check.

Question 5

When is the claimant a visitor for the purposes of the Occupiers Liability Act 1957?

Answer 5

Visitors are those who have express or implied permission to be on the occupiers’ land. If the visitor goes beyond that express or implied permission, they are trespassers.

Examples of express permission:
- inviting guests indoors
- hiring a contractor to work on the premises
- customers in a shop/on the premises

Examples of implied permission:
- postman/woman (delivering letters to the door)
- policeman/woman conducting a search

Question 6

What is the standard of care under the Occupiers’ Liability Act 1957?

Answer 6

Reasonable Occupier - the occupier must take such care as is reasonable in the circumstances to ensure that visitors are reasonably safe for the purposes for which they are invited.

Does not have to make the premises fully 100% safe. Also means that if occupier knows or ought to know a visitor has a particular vulnerability they should take reasonable steps to accommodate.

Question 7

When will an occupier breach their duties under the Occupiers’ Liability Act 1957?

Answer 7

If the occupier falls below the standard of a reasonable occupier on the facts.

• Like for negligence the standard can be set higher if there is a serious harm from the state of the premises and D should have taken action, or the costs of taking action are low to make the premises safe.

BUT a visitor is expected to take reasonable care of their own safety.

Standard is higher for children.

Standard is lower for contractors.

Question 8

What is the effect of adequate warnings under the Occupiers’ Liability Act 1957?

Answer 8

An occupier can discharge their duty by taking reasonable steps to give a warning of a danger on the premises.

BUT warning must be adequate, must be:

1. Specific: must mention the specific danger it is warning against and possibly even state how to avoid that danger
2. May need to be clearer according to the type of visitor who could be harmed. e.g a child may need more than a sign, a fence or rope for example

Question 9

Can liability be excluded under the occupiers liability act?

Answer 9

Yes. The occupier can use a notice to exclude liability for loss from the state of the premises.

Occupier must take reasonable steps to bring the notice to the attention of the visitor (make sure it is clearly visible).

If the occupier is a business or sole trader, it is subject to UCTA and the CRA; you cannot exclude for death or personal injury; they can only exclude for damage to property and exclusion must be reasonable.

Private occupiers are not subject to UCTA or CRA.

Question 10

What defences are available to a claim under the Occupiers’ Liability Act 1957?

Answer 10

Consent: warning notices, if adequate can provide the defence of consent: the claimant took the risk even though they knew of the risk.

Contributory negligence: (only reduces damages) did the claimant’s own carelessness contribute to their loss?

Question 11

What is the duty of care under the occupiers’ liability act 1984?

Answer 11

The occupier owes a duty to take reasonable care to see that trespassers do not suffer injury as a result of dangers due to the state of the premises.

The duty is only in respect of personal injury (not property damage).

Only arises if 3 conditions are satisfied.

Question 12

What are the conditions of a duty arising under the occupiers’ liability act 1984?

Answer 12

1. Occupier is aware of the danger or has reasonable grounds to believe that it exists (subjective/objective test)
2. The occupier knows or has reasonable grounds to believe that someone is, or may be in the vicinity of, the danger (occupier actually knows or there are background facts that mean the occupier ought to have known a trespasser would enter the premises at the time C was injured)
3. The risk is one against which in all the circumstances the occupier may be reasonably expected to offer some protection: depends on how great the danger is, and how costly it would be to mitigate against it. Public policy considerations also. Does not extend to risks taken recklessly or stupidly by trespasser.

Question 13

What is the standard of care under the occupiers liability act 1984?

Answer 13

Reasonable occupier. - Such care as is reasonable in all the circumstances of the case to see that the trespasser does not suffer injury on the premises by reason of the danger concerned. The standard does not change for children or skilled professionals - same standard throughout.

Because the claimant is a trespasser, the standard is lower than that under OLA 57

Standard can be set higher or lower depending on factors like the magnitude of the risk and costs of mitigation.

Adequate warnings can discharge the duty like under OLA 57

Question 14

What defences and exclusions are there under the OLA 1984?

Answer 14

Defendant can restrict or exclude liability by notice, but is subject to the CRA 2015 if a business or sole trader (UCTA will not apply to business if C has come onto the premises to play without permission.

Consent: the trespasser is aware of the risk but does it anyway

Contributory negligence: C’s carelessness contributes to the injury

Question 15

What types of losses can a visitor claim under OLA 1957?

Answer 15

Can claim for both personal injury and property damage.

Question 16

What does a duty under OLA 1957 relate to?

Answer 16

The act governs the duty owed by occupiers to visitors.

This duty relates to the ‘state of premises’ rather than an activity on the premises. Duty is to keep the visitor reasonably safe rather than the premises.

Question 17

What is the duty of care under OLA 1957?

Answer 17

An occupier of a premises owes the common duty of care to all their visitors.

The common duty is to take such care as is reasonable in all the circumstances to see that the visitor will be reasonably safe in using the premises for the purposes for which they were permitted by the occupier to be there.

Question 18

Who has a duty of care under OLA 1957?

Answer 18

Duty is imposed on the occupier of the premises. Definition of occupier is the same as under common law.

An occupier is someone who has a sufficient degree of control over the premises. Question of sufficiency of control is one of fact. Someone who is not the owner can still be the occupier.

Question 19

What ate the four categories of occupiers?

Answer 19

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

Question 20

What if there are multiple occupiers?

Answer 20

Not necessary for a person to have entire control over the premises or exclusive occupation.

Sufficient to have some degree of control which they may share with others.

For contractors: the owner would still usually be regarded as being in sufficient control of the premises but in addition, the independent contractor may also be in sufficient control or the place where they are working.

Question 21

What is a ‘premises’?

Answer 21

Does not just include the land and buildings. Wide definition - includes any fixed or moveable structure, including any vessel, vehicle or aircraft.

Question 22

What are visitors?

Answer 22

OLA 1957 - duty owed to visitors.

Persons who have express or implied permission to be on the occupier’s premises. Visitors include those with lawful authority and contractual permission to be on the premises.

Question 23

Visitors: Express permission

Answer 23

Those who have express permission to be on the premises are lawful visitors.

However, express permission may be limited by notice in which case the visitor becomes a trespasser (eg no unauthorised entry). Limitations can be made in three ways:

1. Area
2. Time
3. Purpose

Question 24

Visitors: Implied permission

Answer 24

Permission exists because of an occupier’s behaviour - postman has implied permission to walk up a garden path to deliver letters. This can be limited by notice.

Question 25

What happens if it is determined that someone us a visitor?

Answer 25

Claimant will automatically be owed a duty of care under OLA 1957.

Question 26

Is someone who uses a public right of way a visitor?

Answer 26

No. But they will be owed a duty under OLA 1984.

Question 27

What happens if there is a sign restricting permission by area but it is small?

Answer 27

Will still be a visitor with express permission to be on the premises.

Question 28

What is the standard of care under the OLA 1957?

Answer 28

Standard of care: reasonable occupier - objective test.

The occupier owes the visitor a duty to take reasonable care to see that the visitor will be reasonably safe in using the premises for the purposes for which they were permitted by the occupier to be there.

Different standards apply to persons with vulnerable characteristics, children and persons entering premises in the exercise of their calling.

Question 29

What if a visitor has personal characteristics?

Answer 29

These may affect the standard of care owed. Where the occupier is aware of a vulnerability of the visitor they can reasonably be expected to take steps to guard against it.

Must have regard to any known vulnerability.

Question 30

Standard of care: children

Answer 30

Child visitors are owed a higher standard of care under the OLA 1957.

Will be judged against a reasonable child of the same age.

If children will regularly be in the area, it is important to take extra precautions in order to keep the premises reasonably safe.

Question 31

Standard of care: Persons entering premises in the exercise of their calling

Answer 31

Persons entering premises in the exercise of their calling (to exercise their skills) are owed a lower standard of care under OLA 1957.

Question 32

What is the test for if the defendant has fallen below the standard of care?

Answer 32

That of a reasonable occupier.

Considerations the same as in a negligence claim: likelihood of harm, magnitude of harm, social value of activity and cost of preventative measures (resources available to occupier)

Question 33

Can an occupier discharge their duty through warnings?

Answer 33

An occupier will satisfy the common law duty of care if they warn the visitor of the danger and the warning was enough to enable the visitor to be reasonably safe.

Warning should make visitor aware of: what the danger is, where it is, and how to avoid it.

Sometimes very obvious dangers may not require warnings.

Different from an exclusion notice which operates as a defence rather than avoiding breach.

Question 34

When can an occupier’s duty under OLA 1957 be discharged through independent contractors?

Answer 34

3 requirements:

1. Hiring an independent contractor - must have been reasonable to use an independent contractor.
2. Steps were taken to check competency of independent contractor - duty may be less on private households vs a local authority
3. Supervising and checking the work was done properly

Question 35

OLA 1957 Causation and remoteness

Answer 35

Unless glaring issues, assume they are met.

Question 36

What are the defences for OLA 1957?

Answer 36

1. Consent: will not apply where claimant is not fully aware of particular risk.
2. Contributory negligence - degree of care and of want of care which would ordinarily be looked for in such a visitor is taken into account.

Question 37

What duty does the OLA 1984 govern?

Answer 37

Governs the duty owed by occupiers to non-visitors.

Question 38

What losses can be claimed under the OLA 1984?

Answer 38

Occupier is only liable for personal injury, including disease and any impairment of either a person’s physical or mental condition.

Property damage is not recoverable.

Question 39

When will an occupier owe a duty of care under OLA 1984?

Answer 39

Occupier will owe a duty if:

1. Aware of danger
   - They are aware of the danger or have reasonable grounds to believe that it exists;
   - Reasonable grounds requires actual knowledge of the facts which would lead a reasonable occupier to be aware of the danger.
2. Knowledge that the other is in the vicinity
   - They know or have reasonable grounds to believe that the other is in the vicinity of the danger concerned or that they may come into the vicinity of the danger; and
3. Reasonable to protect trespasser against the risk
   - The risk is one against which, in all the circumstances, they may reasonably be expected to offer the other some protection.

Question 40

What is the standard of care under the OLA 1984?

Answer 40

Standard of care is that of a reasonable occupier.

Negligence breach factors

Other factors:
- nature of the danger (hidden or obvious)
- Whether the claimant was a child or adult
- Nature of the premises (how dangerous was it)
Whether occupier could have foreseen trespassing and if any measures were taken to stop this.

Question 41

Can a warning notice satisfy a duty under OLA 1984?

Answer 41

It may be.

Easier to satisfy the duty under OLA 1984 than 1957 by giving a warning. A notice will satisfy the occupier’s duty if it sufficiently discourages the claimant from trespassing.

A physical barrier has been found to be enough.

Harder where claimant is a child and they are too young to read or fully appreciate danger.

Question 42

What defences are available under OLA 1984?

Answer 42

1. Consent
2. Contributory Negligence
3. Illegality - unlikely (if purpose is to protect trespassers then all claims would fail)

Question 43

What are the four restrictions on an occupier’s freedom to use an exclusion clause to exclude or lessen their liability to the visitor?

Answer 43

1. Section 3 OLA 1957
2. Unfair Contract Terms Act 1977
3. Consumer Rights Act 2015
4. Common law

Question 44

What is the section 3 restriction under OLA 1957?

Answer 44

Occupier cannot by contract exclude or restrict the common duty of care which they owe to a third party.

Question 45

How does the Unfair Contract Terms Act 1977 restrict an occupier’s freedom to use an exclusion clause to exclude or lessen their liability to the visitor?

Answer 45

Applies to ‘business to business’ liability.

• Cannot exclude/restrict liability for death or personal injury resulting from negligence
• In relation to other loss, a person can exclude/restrict their liability for negligence if the term/notice satisfies the requirement of reasonableness.

Requirement of reasonableness: it should be fair and reasonable to allow reliance on the notice having regard to all the circumstances at the time when the liability would have arisen.

Question 46

How does the Consumer Rights Act 2015 restrict an occupier’s freedom to use an exclusion clause to exclude or lessen their liability to the visitor?

Answer 46

Applies where defendant is a trader and claimant is a consumer.

• A trader cannot exclude/restrict their liability for death or personal injury resulting from negligence
• In relation to other loss, a trader can exclude/restrict their liability for negligence if the term/notice is fair

A term is unfair if: contrary to the requirement of good faith, it causes a significant imbalance in the parties rights and obligations under the contract to the detriment of the consumer.

Question 47

How does the common law restrict an occupier’s freedom to use an exclusion clause to exclude or lessen their liability to the visitor?

Answer 47

Restrictions will be judged against the principle of ‘common humanity’.

Legal minimum 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? If there was a substantial probability that the accident would happen, yet the cost/practicalities of making the premises safe were minimal then it might be unreasonable to exclude or restrict liability.

Question 48

Do the same restrictions apply to the OLA 1984?

Answer 48

No. Silent as to whether liability can be excluded. UCTA and CRA do not apply.

Likely same common law restrictions apply.