Occupiers' Liability

Question 1

What is occupier’s liability concerned with?

Answer 1

Concerned with loss caused by the state or condition of premises or things done or omitted to be done during the occupation of such premises

Question 2

What is the Occupiers’ Liability Act 1957 concerned with?

Answer 2

The duty owed by occupiers to visitors

Question 3

What is the Occupiers’ Liability Act 1984 concerned with?

Answer 3

The duty owed by occupiers to trespassers/non-visitors

Question 4

Is the Occupiers’ Liability Act 1957 concerned with the state of the premises or an activity on the premises?

Answer 4

The state of the premises

Question 5

What loss can a visitor claim for under the Occupiers’ Liability Act 1957?

Answer 5

Loss for both personal injury and property damage

Question 6

Who owes a duty of care under the Occupiers’ Liability Act 1957?

Answer 6

The occupier of premises

Question 7

Who is an occupier under the Occupiers’ Liability Act 1957?

Answer 7

Not defined in act.

Case law - occupier is someone who has sufficient degree of control over the premises.

Question of sufficiency of control is one of fact.

Someone who is not the owner of the premises can still be the occupier.

Question 8

In Wheat v Lacon, what four occupier categories did Lord Denning identify?

Answer 8

• if landlord does not live on the property, the tenant is the occupier
• if the landlord retains some part of the premises eg common areas like stairways, they are the occupier of those parts
• if the landlord issues a licence, they remain an occupier and
• if the occupier employee and independent contractor, they generally remain responsible

Question 9

How does Salmond on the Law of Torts describe occupier liability?

Answer 9

Liability is based on occupancy or control, not ownership. The person responsible for the condition of the premises is he who is in actual possession of them for the time being, whether he is the owner or not, for it is he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons

Question 10

Is it possible for there to be multiple occupiers of the land?

Answer 10

Yes. To be occupier not necessary for person to have entire control over the premises or exclusive occupation. It is sufficient to have some degree of control which they may share with others.

Eg if there were independent contractors working on the land, owner would still normally be regarded as sufficiently in control of the premises but the independent contractor may also be in sufficient control of the place where they are working.

Question 11

How may the liability of multiple occupiers differ?

Answer 11

Different occupiers may have responsibility for different parts of the premises or different dangers

Question 12

Is it possible for the claimant to be have a different relationship to each of the occupiers?

Answer 12

Yes entirely possible that claimant may be a visitor to one occupier and a trespasser to another

Question 13

What does the term premises include in the Occupiers’ Liability Act 1957?

Answer 13

Wider than just land and buildings.

Definition in act not conclusive but includes any fixed or moveable structures, including any vessel, vehicle or aircraft.

Premises has been held to include a ladder.

Question 14

Who are visitors under the Occupiers’ Liability Act 1957?

Answer 14

Persons who are lawfully on the property.

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 15

How may express or implied permission be limited?

Answer 15

By either:

• area
• time
• purpose

Question 16

How may express or implied permission be limited by area?

Answer 16

Occupiers will not owe a duty to a visitor if the visitor enters an area where they are denied permission.

For an occupier to escape liability to a visitor here it must be very clear as to the areas where visitors are denied access and the location of any sign must be appropriate and not inconspicuous.

Question 17

How may express or implied permission be limited by time?

Answer 17

An occupier can restrict entry by imposing a time limit eg opening hours but it must be made clear to the visitor

Question 18

How may express or implied permission be limited by purpose?

Answer 18

If an invitee goes beyond the purpose they were invited onto the premises for, they may become a trespasser. Purposes they are invited onto the premises for must be clear to the claimant.

Question 19

When will a person have lawful authority to be a visitor on premises?

Answer 19

Where they belong to a body with statutory rights or a warrant to enter premises such as police or gas board officials.

They do not need permission of occupiers.

Question 20

When will a person have contractual authority to be a visitor on premises?

Answer 20

If they enter premises under the terms of a contract with the occupier, in the absence of an express provision to the contrary, there will be an implied term that the entrant is owed the common duty of care

Question 21

What will happen once it has been established that a claimant is a visitor and the defendant is an occupier of premises?

Answer 21

The claimant will automatically be owed a duty of care under Occupiers’ Liability Act 1957

Question 22

Will those using a public right of way be protected under the Occupiers’ Liability Act 1957?

Answer 22

No - they will have to rely on the common law

Question 23

Will those using a private right of way be protected under the Occupiers’ Liability Act 1957?

Answer 23

No but the will be covered by the Occupiers’ Liability Act 1984

Question 24

Are those exercising their rights under the National Parks and Access to the Countryside Act 1949 protected us visitors under the Occupiers’ Liability Act 1957?

Answer 24

No but the will be covered by the Occupiers’ Liability Act 1984

Question 25

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

Answer 25

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

Standard = reasonable occupier and objective test

Question 26

How may the personal characteristics of the visitor affect the standard of care owed?

Answer 26

If they are a particular vulnerable visitors then greater care will be owed eg if blind then risks will be greater and more care should be taken.

If a child then owed greater standard of care

Persons entering premises in the exercise of their calling (skills) are owed a lower standard of care

Question 27

What is the standard of care due under Occupiers’ Liability Act 1957 to child visitors?

Answer 27

Occupier must be prepared for children to be less careful than adults.

Children cannot be expected to appreciate dangers that would be obvious to adults.

Occupiers should be particularly alert to dangers that are allurements to children such a boats or red berries.

Question 28

What is an occupier under the Occupiers’ Liability Act 1957 entitled to rely on which negates to an extent the extra duty of care owed to children?

Answer 28

Occupier is entitled to rely upon the supervising role of parents in relation to young children.

So if D makes premises reasonably safe for a child accompanied by an adult and D entitled to expect that child of that age would be accompanied by an adult, then they will not be liable for any risks that an adult would be alert to

Question 29

What standard of care is due to persons entering the premises in the exercise of their calling under the Occupiers’ Liability Act 1957?

Answer 29

Lesser standard of care. Occupier does not have to take care to protect someone against risks normally incidental to their job which they can be expected to have guard against.

Eg chimney sweeps should have been alert to danger of carbon monoxide gas so occupier was not liable for their death

Question 30

How will it be assessed if the defendant has fallen below the standard of care owed under the Occupiers’ Liability Act 1957?

Answer 30

Same as assessment in negligence cases eg

• likelihood of harm
• magnitude of harm
• the social value of the activity which gives rise to the risk
• cost of preventative measures
• the resources available to occupiers when considering what reasonable steps might have been taken

Factors should be balanced against each other

Question 31

If D does all that can be reasonably expected of them, will they be held to be liable under the Occupiers’ Liability Act 1957?

Answer 31

No

Question 32

When will an occupier discharge their duty of care through warnings?

Answer 32

Occupier will satisfy their common duty of care if they warn the visitor of the danger and the warning was enough to enable the visitor to be reasonably safe

Question 33

What should any warning seeking to discharge the occupier’s duty of care alert the visitor to?

Answer 33

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

Question of fact in each case - will depend on the particular danger, scope, content and form of the warning

Question 34

Will very obvious dangers require warning for the occupier to discharge their duty under the Occupiers’ Liability Act 1957?

Answer 34

No

Question 35

What is the law in relation to causation and remoteness under the Occupiers’ Liability Act 1957?

Answer 35

Once loss has been suffered and once D has breached their duty of care to the claimant, then there is an assumption that causation and remoteness have been satisfied.

If issue with causation or remoteness then they are dealt with by the ordinary rules in relation to negligence.

Question 35

The general rule is that the duty owed by an occupier is non-delegable. What is the exception whereby an occupier will escape liability where the visitor suffers loss as a result of work carried out by an independent contractor?

Answer 35

The occupier will escape liability if they acted reasonably in:

• hiring an independent contractor (more technical the work, more reasonable it will be)
• selecting the independent contractor (taken steps to check competency - will be less for householder than LA)
• supervising and checking the work was properly done as far as reasonable

Question 36

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

Answer 36

• volenti/consent - claimant must be fully aware of particular risk and through their conduct willingly accept the risk
• contributory negligence
• illegality

Question 37

What is the standard the courts will consider for contributory negligence under Occupiers’ Liability Act 1957?

Answer 37

• see if visitor has fallen below the degree of care and of want of care, which would ordinarily be looked for in such a visitor
• where the claimant is a child, they will be judged against a reasonable child of the same age

Question 38

What duty is owed to trespassers under the Occupiers’ Liability Act 1984?

Answer 38

Occupiers owe duty to take reasonable care to see that trespassers do not suffer injury on their premises by reason of the danger concerned

Question 38

What loss is the occupier liable for under the Occupiers’ Liability Act 1984?

Answer 38

Physical injury, including disease and any impairment of either a person’s physical or mental condition.

Property damage is not recoverable.

Question 39

What is defined as occupiers and premises under the Occupiers’ Liability Act 1984?

Answer 39

Same definitions given as under the the Occupiers’ Liability Act 1957.

Question 40

What is the definition of trespasser under the Occupiers’ Liability Act 1984?

Answer 40

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

Question 41

Is there an automatic duty owed by occupiers to trespassers under the the Occupiers’ Liability Act 1984?

Answer 41

No

Question 42

When will a duty of care be owed by occupiers to trespassers under the the Occupiers’ Liability Act 1984?

Answer 42

Occupier will owe duty if:

• they are aware of the danger or have reasonable grounds to believe that it exists
• 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 (in either case whether the other has lawful authority for being in that vicinity or not) and
• the risk is one against which, in all circumstances, they may reasonably be expected to offer the other some protection

Question 43

When will the occupier meet the requirement that they are aware of the danger under the the Occupiers’ Liability Act 1984?

Answer 43

When they have reasonable grounds to believe that the danger exists.

Reasonable grounds requires actual knowledge of facts which would lead a reasonable occupier to be aware of the danger.

Question 43

When will the occupier meet the requirement that they have knowledge that the other is in the vicinity under the the Occupiers’ Liability Act 1984?

Answer 43

The occupier must know or have reasonable grounds to believe that someone is in the vicinity or may come into the vicinity of the danger.

The occupier must also know (or have reasonable grounds to believe) that someone is in the vicinity of the danger at the time of the accident

Question 44

When will the occupier meet the requirement that it is reasonable to protect the trespasser against the risk?

Answer 44

When the risk is one which, in all circumstances, it is reasonable for the occupier to protect against

Balance between cost of requiring the occupier to make the premises safer against the foreseeability and seriousness of injury

Question 45

What will the effect be of the claimant freely choosing to engage in an activity that carries an inherent risk under the ?

Answer 45

The

Question 45

Are occupiers expected to protect trespassers from obvious risks or self-inflicted harm?

Answer 45

No unless there was no genuine and informed choice by the claimant for example where the claimant was an employee or lacked capacity such a child unable to appreciate the danger

Question 45

When will an occupier breach the standard of the reasonable occupier under the the Occupiers’ Liability Act 1984?

Answer 45

Court will weigh up the negligence breach factors:

• the nature of the danger
• whether the claimant was a child or an adult
• the nature of the premises (how dangerous were they eg building site)
• purpose of the claimant (eg was the claimant a burglar or trespassing by accident
• whether the occupier could or should have foreseen trespassing (eg were the occupier aware that people were trespassing and if so, what measures were taken to prevent this. The more more likely trespassing is, the more precautions should have been taken)

Ultimately court will take into account whether claimant is a non-visitor and the defendant’s duty under OLA 1984 will not be as onerous under OLA 1957

Question 46

When will a warning discharge an occupier’s duty under the the Occupiers’ Liability Act 1984?

Answer 46

Easier than under the the Occupiers’ Liability Act 1957.

Duty will be satisfied if the occupier takes all reasonable steps to give warning of the danger concerned or to discourage persons from incurring the risk.

Will be harder to discharge duty where claimant is a child as they may be too young to read or fully appreciate the danger

Fences are sufficient warnings

Question 47

What is the law in relation to causation and remoteness under the the Occupiers’ Liability Act 1984?

Answer 47

Act is silent.

Normal rules apply

Question 48

What defences are available under the the Occupiers’ Liability Act 1984?

Answer 48

• consent/volenti
• contributory negligence
• illegality

Question 49

How does the defence of consent operate under the the Occupiers’ Liability Act 1984?

Answer 49

If claimant voluntarily choses to engage in an activity that carries an inherent risk then occupier will not be liable

Question 50

Can occupiers under the Occupiers’ Liability Act 1957 exclude or limit their liability?

Answer 50

Yes insofar as they are free to do so they can extend, restrict, modify or exclude their duty to visitors.

Question 51

What restrictions are there on the occupier’s free to use an exclusion clause to exclude or lessen their liability to the visitor under the Occupiers’ Liability Act 1957?

Answer 51

• section 3 of the Occupiers’ Liability Act 1957
• unfair contract terms act 1977
• consumer rights act 2015
• common law

Question 52

How does section 3 Occupiers’ Liability Act 1957 restrict the occupier’s ability to exclude or lessen their duty owed to a visitor?

Answer 52

States that where an occupier is bound by a contract to allow people who are strangers to the contract to enter or use the premises, the duty of care that the occupier owes those strangers as their visitors cannot be restricted or excluded by the contract.

Question 53

Who is a stranger to a contract under section 3 Occupiers’ Liability Act 1957?

Answer 53

Someone who is not entitled to the benefit of the contract, eg not being a party or a successor.

This would include any employees of a contracting party.

Question 54

How does Unfair Contract Terms Act 1977 restrict the occupier’s ability to exclude or lessen their duty owed to a visitor under Occupiers’ Liability Act 1957?

Answer 54

Restricts the use of exclusion clauses/notices to exclude or limit liability for negligence which includes breach under Occupiers’ Liability Act 1957.

Applies only to business to business liability ie where the occupier is using the premises for business purposes and the person entering the premises is doing so in the exercise of a trade, business, craft or profession.

• Person cannot exclude/restrict their liability for death or personal injury resulting from negligence
• in relation to other loss, a person can exclude/restrict their liability for negligence in the term/notice satisfies the requirement of reasonableness
• the requirement of reasonableness means it should be fair and reasonable to allow reliance on the notice, having regard to all circumstances at the time when the liability would have arisen

Question 55

How does Consumer Rights Act 2015 restrict the occupier’s ability to exclude or lessen their duty owed to a visitor under Occupiers’ Liability Act 1957?

Answer 55

Restricts the use of exclusion clauses/notices to exclude or limit liability under the Occupiers’ Liability Act 1957.

Applies where D is acting as a trader and the claimant as a consumer.

• trader cannot exclude/restrict liability for death or personal injury resulting from negligence
• trader can exclude/restrict liability from other losses from negligence if the term/notice is fair
• a term is unfair ‘if contrary to the requirement of good faith, it causes a significance imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.

Question 56

How does the common law restrict the occupier’s ability to exclude or lessen their duty owed to a visitor under Occupiers’ Liability Act 1957?

Answer 56

Protection through common humanity - minimum legal standard of care which can never be excluded by agreement or notice.

Test - would a conscientious person with D’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 57

What is the position of the Occupiers’ Liability Act 1984 and exclusion/limitation clauses?

Answer 57

The act itself is silent.

Thought the it is likely the same common law restrictions would apply as to the OLA 1957 but the UTCA and CRA would not apply