Occupiers Liability

Question 1

What is occupiers liability concerned with?

Answer 1

It is 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 does The Occupiers Liability Act 1957 govern?

Answer 2

The duty owed by occupiers to visitors.

Question 3

What does The Occupiers Liability Act 1984 govern?

Answer 3

The duty owed by occupiers to non-visitors.

Question 4

What loss can be claimed under OLA 1957?

Answer 4

A visitor can claim for both PI and property damage.

Question 5

What is the duty of care under OLA 1957?

Answer 5

The occupier of premises owes a duty of care to all their visitors.

That common law 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 6

Who is an occupier?

Answer 6

An occupier is someone who has a sufficient degree of control over the premises.

Question 7

What categories can occupiers be divided into?

Answer 7

1. if the landlord does not live on the property, the tenant is the occupier;
2. if the landlord retains some part of the premises, they are the occupiers of those parts;
3. if the landlord issues a licence, they remain an occupier; and
4. if the occupier employs an independent contractor, they generally remain responsible.

Question 8

Can there be more than one occupier?

Answer 8

There can be more than one occupier of the premises (multiple occupiers). It is sufficient to have some degree of control which they may share with others.

Question 9

What is a premises?

Answer 9

Premises could be any fixed or moveable structure, including any vessel, vehicle or aircraft.

The premises has been known to include a ladder.

Question 10

What are the different types of visitors?

Answer 10

Persons who have express or implied permission to be on the premises.

Visitors include those with lawful authority and contractual permission.

Question 11

What does express permission mean?

Answer 11

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 e.g. `No Unauthorised Entry’. Such limitations can be made in three ways:

1. Area
2. Time
3. Purpose

Question 12

What is implied permission?

Answer 12

Permission exists because of an occupier’s behaviour. A postman has implied permission to be on a person’s property if they have to walk up a garden path to deliver letters.

Question 13

What is lawful authority?

Answer 13

Some persons, such as police officers with a warrant or persons with a statutory right, like gas board officials, can enter the premises as lawful visitors with or without permission.

Question 14

What is contractual permission?

Answer 14

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

Question 15

Are those using public or private rights of way covered by either OLA 1957 or OLA 1984?

Answer 15

Those using a public right of way are not covered by either OLA 1957 or OLA 1984 and, therefore, are reliant on common law.

Those using private rights of way are covered by the OLA 1984 and not OLA 1957.

Question 16

Are child visitors owed a higher standard of care?

Answer 16

Yes:

This is particularly so where a danger is an allurement to a child.

If it is reasonably foreseeable to an occupier that a child may be attracted to an object on their premises that could be dangerous if meddled with (meaning the child’s actions and injuries are foreseeable), it is reasonable to expect the occupier to take reasonable steps to ensure the premises are safe.

However, this has been diminished as the courts sometimes find that an occupier is entitled to rely upon the supervisory role of parents in relation to young children.

Question 17

Are persons entering the premises in the exercise of their calling owed a different standard of care?

Answer 17

Owed a lower standard.

An occupier does not have to take care to protect someone against risks normally incidental to their job which they can be expected to have guarded against.

Question 18

How do you decided if the defendant has fallen below the standard of care?

Answer 18

The test is the same as used in a negligence claim, e.g. likelihood of harm, magnitude of harm, the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors are balanced against one another.

Question 19

Is it possible to discharge a duty through warnings?

Answer 19

An occupier will satisfy the 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.

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

Very obvious dangers may not require warnings.

It is possible that a notice may have a dual effect. In addition to potentially acting to satisfy the occupiers duty by giving the claimant a warning of the danger, it may also operate as an exclusion notice.

Question 20

It is possible to discharge a duty through independent contractors?

Answer 20

GENERAL RULE: the duty owed by an occupier to visitor is non-delegable. However, where building, construction, repair or renovation is carried out by an independent contractor, and the claimant suffers loss as a result of the fault of the contractor, the occupier may escape liability if they satisfy these three requirements:

1. Hiring an independent contractor: it was reasonable to use an independent contractor;
2. Selecting the independent contractor (take steps to check competency)
3. Supervising and checking the work was properly done.

Question 21

Does causation and remoteness need to be satisfied?

Answer 21

Once loss has been suffered by the claimant and once the defendant has breached their duty, there is an assumption that causation and remoteness have been satisfied.

Question 22

What are the defences to OLA 1957?

Answer 22

Volenti/consent

Contributory negligence

illegality

Question 23

What loss is covered by OLA 1984?

Answer 23

ONLY liable for physical injury, including disease and any impairment of the physical or mental condition.

Question 24

Who is an occupier under OLA 1984?

Answer 24

Same as OLA 1957.

Question 25

How is a premises defined under OLA 1984?

Answer 25

Same as OLA 1957.

Question 26

What is the definition of a trespasser / non-visitor?

Answer 26

Someone who goes on to the land without invitation and whose presence is either unknown to the proprietor or, if known, is practically objected to.

Question 27

What duty of care is owed under OLA 1984?

Answer 27

No automatic duty of care is owed. Instead, three conditions must be satisfied:

1. They are aware of the danger or have reasonable ground to believe that it exists;
2. They know or have reasonable grounds to believe that the other is in the vicinity of the danger or that they may come into the vicinity of the danger; and
3. The risk is one against which, they may reasonably be expected to offer the other some protection.

Question 28

What is the `aware of danger’ condition under OLA 1984?

Answer 28

`Reasonable grounds’ requires actual knowledge of facts, for example, the occupier would not be liable for head injuries caused by a glass container which was not visible from outside of a pond.

Question 29

What is the `knowledge that the other is in the vicinity of the danger’ condition under OLA 1984?

Answer 29

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

For example, in one case, the claimant suffered injuries after diving into the defendant’s harbour. No duty was owed as although the defendant was aware people swam in the harbour during the summer, they were not aware that people would be swimming at night in midwinter.

Question 30

What is the `reasonable to protect trespasser against risk’ condition under OLA 1984?

Answer 30

Normally if the claimant freely chooses to engage in an activity that carried inherent risk, no duty will be owed.

Occupiers are not expected to protect trespassers from obvious risks or self-inflicted harm unless there was no genuine and informed choice by the claimant, for example, where the claimant was an employee or lacked capacity such as a child who was unable to appreciate danger.

Question 31

What is the duty of care under OLA 1984?

Answer 31

OLA 1984 imposes a duty upon the occupier to take such care as is reasonable in all the circumstances to see that the entrant does not suffer injury on the premises by reason of the danger concerned.

Question 32

How does the court decide if the occupier has breached the duty under OLA 1984?

Answer 32

When deciding what amounts to reasonable care, the courts will weigh up the negligence breach factors. Other relevant factors might be:

The nature of the danger (hidden or obvious?)

Whether the claimant was a child or adult

The nature of the premises

Purpose of claimant (was the claimant a burglar or trespassing by accident)

Whether the occupier could or should have foreseen trespassing

Question 33

Can the duty under OLA 1984 be satisfied by warning notices?

Answer 33

The duty may be satisfied if the occupier takes all reasonable steps “to give warning of the danger concerned or to discourage persons from incurring the risk”.

It will be harder to discharge the duty with a notice where the claimant is a child as they may be too young to read or fully appreciate the danger.

Question 34

What are the defences under OLA 1984?

Answer 34

Consent

Contributory negligence

Illegality

Question 35

What is OLA 1957s position on extending, restricting or excluding duty to visitors?

Answer 35

It is allowed.

Question 36

What are the four restrictions on occupiers freedom to use an exclusion clause?

Answer 36

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

Question 37

What is the position under OLA 1984 in relation to exclusion or limitation clauses?

Answer 37

OLA 1984 is silent on the matter, however, it is likely the common law restriction will apply.