Occupiers' Liability

Question 1

What is Occupiers’ Liability?

Answer 1

Liability arising from an Occupier’s Duty of Care toward Visitors and Non-Visitors.

• The Occupiers’ Liability Act 1957 (“OLA 1957”) governs the Duty owed to Visitors.
• The Occupiers’ Liability Act 1984 (“OLA 1984”) governs the Duty owed to Non-Visitors.

Question 2

Regarding OLA 1957, what are the Recognised Types of Damage?

Answer 2

• Personal Injury.
• Property Damage.

Question 3

Regarding Occupiers’ Liability, what is the Occupier’s the Duty of Care?

Answer 3

To ensure the Visitor (or Non-Visitor) is kept reasonably safe while using the Premises for whatever purpose it was granted access.

• Under OLA 1957, this arises automatically.
• Under OLA 1985, this must be established.

Question 4

Regarding Occupiers’ Liability, what is an Occupier?

Answer 4

Someone with a sufficient degree of control over the Premises.

Question 5

Regarding Occupiers’ Liability, when is the Landlord the Occupier, and when is it not?

Answer 5

• If the Landlord issues a Licence, it remains an Occupier.
• If the Landlord does not live on-site, the Tenant is the Occupier.
• If the Landlord retains some part of the Premises, it is the Occupier thereof.

Question 6

Regarding Occupiers’ Liability, what is the Position if the Occupier employs an Independent Contractor?

Answer 6

The Occupier remains responsible, but the Contractor may be deemed a Second Occupier.

Question 7

Regarding Occupiers’ Liability, is it possible to have Multiple Occupiers?

Answer 7

• Yes, provided they all have a sufficient degree of control.
• Different Occupiers may have responsibility for different risks or parts of the Premises.

Question 8

Regarding Occupiers’ Liability, what constitutes the ‘Premises’?

Answer 8

Any fixed or moveable Structure.

This includes any vessel, vehicle or aircraft.

Question 9

Regarding Occupiers’ Liability, what constitutes a ‘Visitor’?

Answer 9

Anyone with Express or Implied Permission to be on the Occupier’s Land.

Authorites will always have Permission if conferred by the Law.

Contractual Counterparties will have Implied Permission based on the Contract’s nature and the absence of express language to the contrary.

Question 10

Regarding Occupiers’ Liability, how can Permission be Limited?

Answer 10

By Notice. These are the most common ways:

• Limits on Use: Setting clear rules on how the Premises may be used.
• Limits on Time: Setting a clear, strict time limits on access to the Premises.
• Limits on Access: Setting clear boundaries on which parts of the Premises may be accessed.

Question 11

Regarding OLA 1957, what is the Occupier’s Standard of Care toward a Vulnerable Visitor?

Answer 11

If the Occupier has Actual or Constructive Knowledge of the Visitor’s vulnerabilities, it must take reasonable steps to accommodate them.

Question 12

Regarding OLA 1957, what is the Occupier’s Standard of Care toward a Person Exercising their Skill?

Answer 12

• The Occupier’s Duty is lesser concerning risks incidental to the Person’s job.
• Otherwise, the Occupier’s Duty is normal concerning non-incidental risks.

Question 13

Regarding OLA 1957, what is the Occupier’s Standard of Care toward a Child Visitor?

Answer 13

• Heightened Duty of Care: Occupiers must take great precautions, recognizing that Children may not notice or understand warnings or hazards.
• Adequate Warnings and Protections: Warnings must be clear and age-appropriate, and physical safeguards must be in place where necessary.
• Allurement Doctrine: Occupiers should secure or remove features that will foreseeably attract Children.
• Expectation of Parental Supervision: Occupiers may assume that very young children will be parentally supervised.

Question 14

Regarding OLA 1957, when will a Warning Discharge the Occupier’s Liability?

Answer 14

When it is sufficiently clear to enable reasonable safety. Accordingly, it must state:

• What the Danger is.
• Where the Danger is.
• How to avoid the Danger.

Warnings may double as Disclaimer.

Question 15

Regarding OLA 1957, when will an Occupier Escape Liability for the Negligence of an Independent Contractor?

Answer 15

• Reasonableness of Contracting: It was reasonable to hire an Independent Contractor.
• Competency Check: The Occupier made reasonable efforts to assess the Contractor’s competency.
• Reasonable Supervision: The Occupier reasonably supervised the Work to ensure proper completion, with lower expectations for more complex jobs.

Private Households have a lesser obligation to ensure competence than, say, a Local Authority.

Question 16

What are Defences for OLA 1984?

Answer 16

• Consent.
• Contributory Negligence.

Question 17

Regarding Occupiers’ Liability, what constitutes a ‘Non-Visitor’?

Answer 17

• Anyone who enters the Occupier’s Land without invitation; and
• Whose presence is either unknown to the Occupier or, if known, is objected to.

In other words, a Trespasser.

Question 18

Regarding OLA 1984, what are the Recognised Types of Damage?

Answer 18

Personal Injury.

Question 19

Regarding OLA 1984, when will the Occupier owe a Duty of Care?

Answer 19

Presence of the Danger:

• The Occupier has Actual or Constructive Knoweldge of the Danger.

Presence of the Trespasser near the Danger:

• The Occupier has Actual or Constructive Knoweldge that the Non-Visitor is either in the Danger’s vicinity or may cross it, particularly considering the time of day.

Magnitude of the Danger:

• The Danger is one from which, in all circumstances, the Occupier may be reasonably expected to offer the Non-Visitor some protection.
• Occupiers need not protect Non-Visitors from obvious risks unless they lacked a genuine and informed choice.

Question 20

Regarding OLA 1984, what additional Factors are considered when assessing Breach?

Answer 20

• The Claimant’s age.
• The Danger’s nature.
• The Premises’ nature.
• The Foreseeability of Trespass.
• The Claimant’s purpose in Trespassing.

Ultimately, because the Claimant is a Trespasser, the Occupier’s Duty will be relatively less onerous, and therefore, Breach is less likely.

Question 21

Regarding OLA 1984, when will a Warning Discharge the Occupier’s Liability?

Answer 21

When it is sufficiently clear to discourage Trespass and alert Trespassers to the Danger. Accordingly, it must state:

• What the Danger is.
• Where the Danger is.
• Trespassers are unwelcome.

This will be less effective if the Claimant is a Child, as they may be too young to read or fully appreciate the Danger.

Question 22

What are Defences for OLA 1957?

Answer 22

• Consent.
• Illegality.
• Contributory Negligence.

Question 23

Regarding OLA 1957, what is a Disclaimer?

Answer 23

A Clause the modifies, restricts, or excludes an Occupier’s Duty toward Visitors.

Question 24

Regarding OLA 1957, what are the Restrictions on Disclaimers?

Answer 24

§3(1) OLA 1957:

• Occupiers cannot Contractually Exclude or Limit their Duty to Third-Parties on the Premises subject to the Contract.

§2 UCTA 1977 (B2B):

• The Disclaimer must be Reasonable under §11.
• Occupiers cannot Exclude or Limit Liability for Death or Personal Injury.

§62, §65 CRA 2015 (B2C):

• The Disclaimer must be Fair under §62.
• Occupiers cannot Exclude or Limit Liability for Death or Personal Injury.

The Doctrine of Common Humanity:

• Occupiers must meet a minimum Standard of Care, especially if precaution is minimally prohibitive.

The Doctrine of Common Humanity also applies to OLA 1984.