Occupiers' Liability

Question 1

occupiers liability

Answer 1

created by statute…

• OLA 1957 — occupiers owe a duty of care to lawful visitors
• OLA 1984 — occupiers owe a duty of care to trespassers

main remedy for a successful claim of occupiers liability is compensation for the injuries or damage suffered

Question 2

what is an occupier?

Answer 2

no statutory definition of occupier, must look to case law

an occupier is someone who has control over the premises such as an owner, manager or tenant

CASE = Wheat v Lacon
manager of the pub was an occupier because he had control of the premises, he lived there with his wife and had the right to rent out rooms

Question 3

what are premises?

Answer 3

broadly defined and includes land, buildings, houses, vehicles as well as fixed or movable structures such as lifts and ladders

Question 4

how does liability arise in occupiers liability?

Answer 4

both OLA 1957 and 1984 impose a duty of care on the occupier

once a claimant has established a duty of care they must go on to prove a breach of duty and causation

the same procedure as in common negligence law

Question 5

occupiers liability act 1957

who does this apply to?

Answer 5

applies to lawful visitors only

these are people with express or implied permission to enter the premises or those with a contractual or legal right to enter

Question 6

occupiers liability act 1957

what does an occupier owe?

Answer 6

occupiers owe a common duty of care to all lawful visitors

under s.2(2) this means that they have a duty “to keep the visitor reasonably safe for the purpose for which they are invited to be there”

objectively tested

the extent of the duty varies according to whether the visitor is an adult, child or tradesman

Question 7

occupiers liability act 1957

adult visitors

Answer 7

under s.2(2) the duty owed to adult visitors is “to keep the visitor reasonably safe for the purpose for which he is invited to be there”

the occupier does not have to make the visitor completely safe, only do what is reasonable to ensure their safety

it is the visitor, not the premises that must be reasonably safe

CASE = Laverton v Kiapasha Takeaway

Question 8

occupiers liability act 1957

child visitors

Answer 8

there is a special duty owed to child visitors

under s.2(3)(a) the occupier “must be prepared for children to be less careful than adults”

therefore, the premises must be reasonably safe for a child of that age

an occupier should guard against any kind of allurement or attraction which places a child visitor at risk of harm — Glasgow Corporation v Taylor

if an allurement exists, the occupier will be liable if the damage suffered is foreseeable — Jolley v Sutton

occupiers are entitled to assume that very young children will be accompanied by someone looking after them, the fault may lie with the parents — Phipps v Rochester Corporation

Question 9

occupiers liability act 1957

tradesmen/professional visitors

Answer 9

an occupier owes a tradesman a common duty of care

however, s.2(3)(b) states that an occupier can expect a tradesman to appreciate and guard against any special risks associated with their trade

CASE = Roles v Nathan

occupiers do not need to take special precautions to protect a tradesman from risks that they should know about

Question 10

occupiers liability act 1957

independent contractors

Answer 10

under s.2(4)(b) if an independent contractor causes damage to another lawful visitor, the occupier may avoid liability

but they must meet 3 conditions to use this defence….

1. it must have been reasonable to hire a contractor — Haseldine v Daw
2. reasonable precautions must have been taken to ensure that the contractor was competent — Bottomley
3. reasonable checks must have been taken to inspect the work — Woodward

if these are met then the claimant will have to claim directly against the contractor rather than the occupier

Question 11

occupiers liability act 1984

who does this apply to?

Answer 11

applies to unlawful visitors

those who have no permission or authority to be on the occupiers premises or a visitor that has gone beyond their permission to be on the premises

Question 12

occupiers liability act 1984

what can a claimant claim for?

Answer 12

under s.1(1) a claimant can only claim for personal injury or death

under s.1(8) property damage is not recoverable

Question 13

occupiers liability act 1984

when will a duty arise?

Answer 13

under s.1(3) a duty to trespassers only arises if 3 conditions are met…

1. occupier must be aware of the danger or reasonably expect that it exists — Rhind v Astbury Water Park
2. occupier must know or have reasonable grounds to believe that the trespasser is in the vicinity of the danger — Higgs v Foster
3. the risk must be one that the occupier can reasonably take steps to guard against — Tomlinson v Congleton BC

subjective test, a duty only arises is the occupier is actually aware of the danger and existence of the trespasser

Question 14

occupiers liability act 1984

what is the duty owed?

Answer 14

under s.1(4) the duty owed is to make sure that the trespasser “does not suffer injury on the premises by reason is the danger concerned”

a lesser duty is owed to trespassers

the danger must arise due to the state of the premises

Question 15

occupiers liability act 1984

adult trespassers

Answer 15

occupier will not be liable is the trespasser is injured by an obvious danger — Ratcliffe v McConnell

the time of day and year when the accident happened affects whether the occupier owes a duty of care — Donoghue v Folkestone Properties

occupier does not have to spend lots of money in making the premises safe from obvious dangers — Tomlinson v Congleton BC

occupier will not be liable if there was no reason to suspect the trespasser — Higgs v Foster

occupier will not be liable if they had no reason to suspect the danger existed — Rhind v Astbury Water Park

Question 16

occupiers liability act 1984

child trespassers

Answer 16

same statutory rules apply to child trespassers as for adult trespassers

CASE = Keown v Coventry NHS

Question 17

steps to solving an occupiers liability question

Answer 17

1. identify if D is an occupier
2. identify whether C is a visitor or a trespasser
3. apply OLA 1957 if a visitor or OLA 1984 if a trespasser
4. reach a conclusion, is D liable? will the claim be successful?

Question 18

evaluation

COST OF A CLAIM

Answer 18

a disadvantage is that claims can be difficult or costly

largely because evidence will be required to show exactly how the injuries occurred and that they were caused by the defendant

evidence could be given by an expert who will need to be paid

in addition, medical evidence may be required to show the extent of the injuries and the effect on the victim in the future

if property is lost or damaged valuations may have to be obtained

covering all of these costs in order to prove fault can be overly expensive and may prevent many claimants from bringing a case to court out of fear of the costs

Question 19

evaluation

LAWFUL VISITORS ARE BETTER PROTECTED

Answer 19

lawful visitors are better protected under OLA 1957 than trespassers are under OLA 1984

this is fair because as Lord Hoffman said in the case of Tomlinson, it is too great a burden on occupiers if they had to “take steps to protect the safety of people who came upon their land within permission”

however, the 1957 act may be unfair to the occupier because it automatically imposes a duty on the occupier regardless of whether they know that the danger is there or not whereas the 1984 act only imposes a duty if the occupier was aware of the danger

may also be unfair to the claimant who can only claim for personal injury in the 1984 act but lawful visitors can claim for damage to property as well as injury under OLA 1957

Question 20

evaluation

OBVIOUS DANGERS

Answer 20

occupiers do not owe a duty of care in relation to obvious dangers

for example, in Ratcliffe v McConnell, the trespasser was unable to claim as he should have realised the existence of an obvious danger by diving in the shallow end of a swimming pool

this is fair on the occupier as they should not have to guard against every single danger that could arise, particularly obvious ones, as it can cost them a lot of money and time

Question 21

evaluation - 1957

CHILD VISITORS

Answer 21

it is logical and fair that a special duty is owed to children as it gives protection to the most vulnerable

for example, in Jolley v Sutton, it was fair to impose a duty as it was foreseeable that children would play on the boat and may be injured

furthermore, it’s also fair that an occupier can expect parents to be supervising very young children — as established in Phipps

HOWEVER, there is no age limit set as to when the principle in Phipps applies which means that the act may lack clarity and create confusion about whether an occupier is liable or not

Question 22

ideas for reform of occupiers liability

Answer 22

no fault liability

state run compensation schemes

impose greater personal responsibility

Question 23

no fault liability

Answer 23

no fault liability can be introduced to allow all injured visitors, both lawful and unlawful, to claim compensation

Question 24

state run compensation schemes

Answer 24

state run compensation schemes can be introduced

can be paid for by a levy, possibly on all property insurance policies