Occupiers Liability

Question 1

Occupiers liability

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. An extension to the traditional rules of negligence, but it is largely governed by statute.

Question 2

The Occupiers Liability Act 1957

Answer 2

governs the duty owed by occupiers to visitors

Question 3

The Occupiers Liability Act 1984

Answer 3

governs the duty owed to non-visitors

Question 4

Do the Acts replace the common law?

Answer 4

No: in practice, claims will be pleaded both under statute and at common law.

Question 5

s.1(1) OLA 1957

Answer 5

the duty owed is in respect of ‘dangers due to the state of the premises or to things done or omitted to be done on them.’

Question 6

Loss OLA 1957

Answer 6

a visitor can claim for both personal injury and property damage

Question 7

OLA 1957 - Who is the duty owed to

Answer 7

Section 2(1) - “An occupier of the premises owes the same duty, the “common duty of care” to all his visitors…”

Question 8

(1) Occupier

Answer 8

• OLA 1957 does not explicitly define ‘occupier’
• s.1(2): ‘an occupier…[is] the same…as the persons who would at common law be treated as an occupier’
• ‘occupier’ at common law denotes a person who has a sufficient degree of control over the premises so as to justify the imposition of a duty upon them (Wheat v Lacon) Sufficiency of control is a question of fact.

Question 9

Wheat v Leacon - categories of occupier

Answer 9

• If the landlord does not live on the property, the tenant is the occupier
• If the landlord retains some part of the premises, e.g. common areas like stairways, they are the occupier of those parts;
• If the landlord issues a licence, they remain an occupier;
• If the occupier employs an independent contractor, they generally remain responsible.

Question 10

Sufficient degree of control - Bailey v Armes

Answer 10

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

Question 11

Multiple occupiers

Answer 11

• Exclusive occupation is not essential, so there may be more than one occupier of the premises (Wheat v Leacon)
• To be an occupier, not necessary to have entire control or exclusive occupation. It is sufficient that he has some degree of control which he may share with others.
• Independent contractors: the owner would still usually be regarded as sufficiently in control of the premises so as to owe visitors a duty of care, but the independent contractor may also be in sufficient control of the place where he is working

Question 12

Ferguson v Welsh

Answer 12

Council accepted a tender from Mr Spence for demolition of their building. This contained a clause prohibiting subcontracting without their consent. Mr Spence did so. The claimant sustained injuries while carrying out the work and sued Mr Spence, the Welsh brothers and the council. House of Lords held that there was no claim against the council because the claimant was a lawful visitor in relation to Mr Spence, but a trespasser in relation to the council.

Question 13

Absent owners

Answer 13

It is possible for the occupier to be an absentee who has not taken any actual or symbolic steps to take possession. Harris v Birkenhead: the defendants, a local authority, were held to be occupiers even though they had never visited, because they had control over the property and were able to secure the safety of it.

Question 14

(2) Premises

Answer 14

A wide definition is given in s.1(3)(a) OLA 1957: ‘any fixed or moveable structure, including any vessel, vehicle or aircraft.’
Wheeler v Copas: the premises included a ladder.

Question 15

(3) Visitors

Answer 15

OLA 1957 provided that the occupier of a premises owes an automatic duty to their lawful visitors i.e. persons lawfully on their property.

s.1(2) OLA 1957: ‘the persons who are to be treated as…visitors are the same…as the persons who would at common law be treated as invitees and licensees.’

Question 16

Ways in which a visitor can be classified

Answer 16

(1) Express permission
(2) Implied permission
(3) Doctrine of allurement
(4) Lawful authority
(5) Contractual permission

Question 17

Express permission or licence

Answer 17

e. g. guests as per Wheat v Lacon

- can be limited by notice in which case the visitor becomes a trespasser e.g. ‘no unauthorised entry’.

Question 18

Limitations on express permission or licence

Answer 18

• Area: if the visitor enters an area to which they are denied permission. Occupiers must be very clear as to the area where visitors are denied access and the location of any sign must be appropriate.
  Pearson v Coleman Bros: child found herself in the animal enclosure at a circus. No signs indicated it was a private area and therefore she was a visitior.
  Darby v National Trust: inconspicuous sign in the car park saying no bathing in the pond. The car park was not next to the pond and there was other info on the sign. Court held defendant had not done enough to turn claimant into trespasser.
• Time: An occupier can restrict entry by imposing a time limit (e.g. opening hours), but it must be made clear to the visitor
• Purpose: if an invitee goes beyond the purpose they were invited onto the premises for, they may become a trespasser. Tomlinson v Congleton: it was made clear to the claimant the lake was to be used for canoeing, fishing and windsurfing only. By swimming in the lake, they became a trespasser.

Question 19

Implied permission

Answer 19

• A postman has implied permission to be on a person’s property if they have to walk up a garden path to deliver letters. This can be limited by notice. The onus of proving permission rests on the person who alleges it exists.
• Edwards v Railways Executive: claimant did not have implied permission as the defendant had taken reasonable steps to prevent people using the railway as a shortcut
• Harvey v Plymouth City Council: the implied licence does not extend beyond the scope of activities for which the licence had been expressly or impliedly given. The claimant was running away from paying a taxi when he tripped on the defendant’s land. When the council licenses the public to use its land for recreational activities it consents to the normal activities, not all foreseeable activities regardless of how reckless they are, so claim failed.

Question 20

Lawful authority

Answer 20

s.2(6) OLA 1957: 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 21

Contractual permission

Answer 21

s.5(1) OLA 1957: if a person enters the premises under the terms of a contract with the occupier, in the absence of express provision to the contrary, there is an implied term that the entrant is owed the common duty of care.

Question 22

OLA 1957: Conclusions on duty of care

Answer 22

Once it has been determined a claimant is a visitor, and that the defendant is an occupier of the premises, the claimant will automatically be a owed a duty of care under s.2(1) OLA 1957

Question 23

Public and private rights of way

Answer 23

• Those using a public right of way e.g. a footpath are not covered by either the OLA 1957 or OLA 1984 and therefore are reliant on the common law.
• Those using a private right of way are covered by the OLA 1984 and not the OLA 1957
• Those exercising their rights under the National Parks & Access to the Countryside Act 1949 are not regarded as visitors under the OLA 1957 but are owed a duty of care under OLA 1984
• This law has been codified in the Countryside and Rights of Way Act 2000 (the ‘right to roam’)

Question 24

OLA 1957 - Standard of care

Answer 24

Section 2(2) - ‘The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.’ (an objective test)

Question 25

It is the visitor not the premises that must be safe

Answer 25

• A visitor might have personal characteristics which affect the standard of care e.g. the blind. Where the occupier is aware of a particular vulnerability of the visitor, they can be reasonably expected to take steps to guard against it
• Pollock v Cahill: blind claimant fell out of an open window. The defendant should have warned the claimant or kept the window closed.

Question 26

Higher and lower standards OLA 1957

Answer 26

• Section 2(3)(a) - a higher standard of care is owed to children
• Section 2(3)(b) - a lower standard of care is owed to persons entering the premises in the exercise of their calling

Question 27

OLA 1957 - children s. 2(3)(a)

Answer 27

• ‘an occupier must be prepared for children to be less careful than adults.’
• Jolley v Sutton: If it is reasonably foreseeable to an occupier that a child may be attracted to an object on their premises, it is reasonable to expect them to take reasonable steps to ensure the premises are safe.

Question 28

How has s.2(3)(a) lower standard of care for children OLA 1957 been slightly altered

Answer 28

• diminished by the courts sometimes finding that an occupier is entitled to rely upon the supervisory role of parents
• Phipps v Rochester: an occupier is entitled to assume that a child will be subject to parental care.
• Simkiss v Rhondda: not reasonable to hold the defendant to a higher standard of care than a reasonably prudent parent
• Perry v Butlins: if children are known to be present in an area where it can be anticipated they will be less well supervised, greater care may be appropriate.

Question 29

Persons entering in exercise of a calling

Answer 29

• ‘an occupier may expect that a person, in exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.’
• Roles v Nathan: no liability as it was a normal risk that chimney sweeps should have protected against.

Question 30

OLA 1957 - Breach

Answer 30

• the same as a general negligence claim, e.g. likelihood and gravity of harm, cost of precautions etc.
• Tomlinson v Congleton: ‘the likelihood…the seriousness of the injury which may occur…the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other.’
• Laverton v Kiapasha: the courts will take into account the resources available to the specific occupier

Question 31

OLA 1957 - Warning notices

Answer 31

Under s.2(4)(a) OLA 1957, if the occupier gives a warning to the visitor of danger, that will only be sufficient to satisfy the duty if ‘in all circumstances it 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 (Staples - claimant slipped on a sea wall covered in algae that was obviously slippy)

Question 32

OLA 1957 - Exclusion notices

Answer 32

e.g. ‘Under no circumstances will the occupier be liable for any injury caused to those using the stairs.’
Exclusion clauses are covered by UCTA 1977, CRA 2015 or the common law

Question 33

OLA 1957 - Independent contractors

Answer 33

• As a general rule, the duty owed by an occupier to a visitor is non-delegable. Where building/construction is carried out by an independent contractor, the occupier may escape liability if they acted reasonably in entrusting the work to the independent contractor.
• Section 2(4)(b) - ‘had acted reasonably in entrusting the work to an independent contractor and had taken such steps as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.’

Question 34

OLA 1957 - Independent contractors, acted reasonably

Answer 34

Occupier must show they acted reasonably in:

• Hiring an independent contractor
• Selecting the independent contractor (duty of care for this is lower for a householder than for example a local authority) Naylor v Payling: no duty to ensure that an independent contractor was insured.
• Supervising and checking the work was properly done. Haseldine: defendant, having no technical knowledge, could not be expected to carry out any checks. Woodward: no technical knowledge in issue, the defendant was able to and should have checked and supervised the contractor.

Question 35

OLA 1957 - Causation and remoteness

Answer 35

Nothing in the OLA 1957 setting out how causation or remoteness should be tackled. Courts focus on breach

Question 36

OLA 1957 - Defences

Answer 36

• Consent

- Contributory negligence

Question 37

OLA 1957 - Consent

Answer 37

• Section 2(5)
• White v Blackmore: consent not available as in the circumstances the claimant could not have been fully aware of the particular risk
• Simms v Leigh: rugby player failed in a claim against sports ground owner after he was tackled into a wall. He had willingly accepted the risk.
• Titchener v British Railway: a 15 year old consented to risk when she walked through a gap in the fence onto a live railway line

Question 38

OLA 1957 - Contributory negligence

Answer 38

Normal rules apply

Question 39

What formed the basis of the OLA 1984

Answer 39

British Railway Board v Herrington (1972): the introduction of a duty of ‘common humanity.’ The defendants owned an electrified railway line, which had been fenced off but the fence had been in disrepair for some time and people often took shortcuts across. The defendants’ station master was notified children had been playing on the line, but he didn’t repair the fence. The claimant, aged six, was injured on the railway line. Although a trespasser, he was owed a duty of common humanity in negligence. This formed the basis of OLA 1984

Question 40

OLA 1984 - Loss

Answer 40

• The occupier is only liable for physical injury to the person (ss. 1(1)(a) and 1(9))
• Property damage is specifically not covered (s.1(8)

Question 41

Occupier OLA 1984

Answer 41

Same definition as under OLA 1957

Question 42

Premises OLA 1984

Answer 42

Same definition as under OLA 1957

Question 43

Trespasser definition (OLA 1984)

Answer 43

“he who goes on to the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to.”

Question 44

Duty of care OLA 1984

Answer 44

There is no automatic duty of care owed by an occupier of premises to a non-visitor. Instead, there is a three stage test to establish duty of care.

Question 45

OLA 1984: three stage test to establish duty of care

Answer 45

The occupier will owe a duty if:
(1) They are aware of the danger or have reasonable grounds to believe that it exists;
(2) They know or have reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger;
(3) The risk is one against which, in all the circumstances of the case, they may reasonably be expected to offer the other some protection.
If the three conditions are satisfied a duty of care is owed.

Question 46

Aware of danger (s.1(3)(a) OLA 1984)

Answer 46

• The occupier must be aware of the danger or have reasonable grounds to believe it exists.
• Rhind v Astbury Water Park: the claimant dived into the lake to retrieve his football and hit his head on a container. The container was not visible from the surface and the defendants had no knowledge, nor reasonable grounds to believe, that the container was there.

Question 47

Knowledge that the other is in the vicinity (s. 1(3)(b) OLA 1984)

Answer 47

• 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 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.
• Donoghue v Folkestone: the claimant suffered an injury when diving into the defendant’s harbour. No duty was owed because although the defendant was aware people swam there in summer, they were not aware that people would be swimming there at night in midwinter.

Question 48

Reasonable to protect trespasser against risk (s 1(3)(c) OLA 1984)

Answer 48

• The risk must be one which, in all the circumstances, it is reasonable for the occupier to protect the trespasser from.
• Similar analysis to that covered under breach: balancing the costs of requiring the occupier to make the premises safer against the foreseeability and seriousness of the injury
• Normally if the claimant freely chooses to engage in an activity that carries an inherent risk, no duty will be owed. Occupiers are not expected to protect trespassers against obvious risks or self-inflicted harm unless the claimant was an employee or lacked capacity e.g. a child unable to appreciate the danger (Tomlinson v Congleton)

Question 49

Breach: standard of care under OLA 1984

Answer 49

• Section 1(4) 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 50

Breach: has the defendant below the standard of care OLA 1984

Answer 50

• The determination of whether a duty has been breached is effectively under the same as under OLA 1957
• courts will weigh up factors e.g. resources of the defendant and cost of taking precautions

Question 51

What is the other factor OLA 1984 cases have turned upon?

Answer 51

Whether the occupiers were aware that people were trespassing and, if so, what measures were taken to prevent this.

• Ratcliff v McConnell: by surrounding the pool with a 7 foot fence, a locked gate and erecting notices, the college had offered a reasonable level of protection
• Swain v Natui: seven foot fence topped with barbed wire around the factory with a small section of fence where the barbed wire was missing. No breach as the fence was reasonable steps and there was no evidence of previous trespass.
• Young v Kent: defendants were liable because children climbing on the school roof was a known risk they had failed to protect against

Question 52

Warning notices OLA 1984

Answer 52

• Section 1(5) OLA 1984 states that duty may be satisfied if the occupier takes all reasonable steps “to give warning of the danger concerned or to discourage persons from taking the risk.”
• Easier to satisfy the duty under OLA 1984 than OLA 1957 as the defendant just needs to take reasonable steps
• Titchener v British Railway: the fences constructed were sufficient warning

Question 53

Defences

Answer 53

Consent or contributory negligence

Question 54

Consent

Answer 54

• provided for under s 1(6) OLA 1984
• courts happy to find consent against a trespasser where there was an inherent danger in the activity which caused the injury

Question 55

Contributory negligence

Answer 55

• Not provided for in OLA 1984 but has been successfully relied upon by defendants

Question 56

Restrictions on the occupier’s freedom to use an exclusion clause to exclude or lesson their liability to a visitor

Answer 56

• Section 3 OLA 1957
• UCTA 1977
• CRA 2015
• Common law

Question 57

Section 3 OLA 1957

Answer 57

The occupier cannot, by contract, exclude or restrict the common law duty he owes to a third party.
- s 3(1) states that where an occupier is bound by contract to allow people who are strangers onto their premises, the duty of care the occupier owes those strangers as his visitors cannot be restricted or excluded by the contract

Question 58

UCTA 1977

Answer 58

• restricts the use of exclusion clauses/notices to exclude or limit liability for negligence
• applies to business to business liability
• cannot exclude liability for death or personal injury
• cannot exclude liability for negligence except in so far as it satisfies requirement of reasonableness
• the fact someone is aware of an exclusion clause does not itself mean they have consented to the risk

Question 59

CRA 2015

Answer 59

• restricts use of exclusion clauses/notices to exclude or limit liability for negligence between a consumer and a trader
• can’t exclude liability for death or personal injury resulting from negligence
• an unfair term or notice is not binding on the consumer (s.62(1) and s.62(2) respectively)
• a term is unfair if it ‘causes a significant imbalance in the parties rights and obligations under the contract to the detriment of the consumer’

Question 60

Common law restrictions

Answer 60

If neither UCTA 1977 nor CRA 2015 applies, restrictions could be judged against the principle of ‘common humanity’ in British Railway Board v Herrington. This represents the minimum legal standard of care that can never be excluded by agreement or notice.

Question 61

Exclusion or limitation clauses for the OLA 1984

Answer 61

The OLA 1984 is silent as to whether it is possible to exclude liability. This may be because OLA 1984 lays down a bare minimum that cannot be evaded and also because if this was the case, trespassers would be in a better position than that of lawful visitors.