Occupiers' Liability

Question 1

What is occupiers’ liability concerned with?

Answer 1

Loss caused by the state or condition of premises or things done or omitted to be done during the occupation of such premises - extension of negligence.

Question 2

Is occupiers’ liability governed by statute?

Answer 2

Yes largely:
The Occupiers’ Liability Act 1957 (‘OLA 1957’) governs the duty owed by occupiers to visitors.
The Occupiers’ Liability Act 1984 (‘OLA 1984’) governs the duty owed to non-visitors.
Exist alongside common law.

Question 3

What is OLA 1957 for?

Answer 3

According to s.1(1) OLA 1957, 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”. Relates to the ‘state of premises’ rather than ‘an activity’ on the premises (in which case a general negligence claim would be more appropriate).

Question 4

What loss can be claimed under OLA 1957?

Answer 4

Personal injury and property damage.

Question 5

Three terms to understand re. duty of care under OLA 1957?

Answer 5

1. Occupier;
2. Premises;
3. Visitor.

Question 6

What is the definition of an occupier in 1957? Where can this be found?

Answer 6

Not under OLA 1957. Common law.
A person who has a sufficient degree of control over the premises so as to justify the imposition of a duty upon them. In all cases, the question of sufficiency of control is one of fact.
Concerns: occupiers, multiple occupiers, absent occupiers.

Question 7

Facts of key case Wheat v E. Lacon & Co? Relevance? [1966].

Answer 7

D’s owned pub. Granted manager and wife (Richardsons) licence to use top floor for accommodation and paying guests.
C and husband paying guest. Husband died - faulty handrail.
Question of who was in occupation of the stairs?
HELD: BOTH D and Mr and Mrs Richardson were occupiers (but neither liable and light bulb removed by third party…)

Question 8

In Wheat v E.Lacon Denning divided ‘occupiers’ into four categories: what are they?

Answer 8

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, e.g. common areas like stairways, they are the occupier of those parts;
3. If the landlord issues a licence, they remain an occupier (as in Wheat); and
4. If the occupier employs an independent contractor, they generally remain responsible.

Question 9

In which case was the concept of sufficient degree of control considered?

Answer 9

Bailey v Armes (1999): 8 year old climbed onto roof above supermarket. Fell and was injured.
Action dismissed: neither party (flat owner or supermarket) could be found to have sufficient control.

Question 10

Can there be more than one occupier? Can the occupier be an absentee?

Answer 10

Yes - Wheat v Lacon - not necessary to have entire control; just degree.
Yes can be absentee: Harris v Birkenhead Corporation [1976] local authority held to be occupiers even though they had never exercised control over the property. Ds aware that vacant properties in the area were often vandalised but they did nothing to secure the property.

Question 11

Can the C be a visitor to one occupier and trespasser to another occupier?

Answer 11

Yes - Ferguson v Welsh [1987]:
Sub-contracting without consent: could not sue council upon injury as not lawful visitor to them, but could claim Mr Spence and the Welsh Brothers.

Question 12

What does ‘premises’ include?

Answer 12

Not just land and buildings.
s.1(3)(a) OLA 1957 includes:
“…any fixed or moveable structure, including any vessel, vehicle or aircraft.”
Wheeler v Copas [1981] included a ladder.

Question 13

OLA 1957 provides occupier owes duty to visitor: but common law gives classification. What are the 5 ways to classify visitor?

Answer 13

1. Express permission;
2. Implied permission;
3. Doctrine of allurement;
4. Lawful authority; and
5. Contractual permission.

Question 14

1. Express permission/licence concept/case?

Answer 14

Those who have express permission are lawful visitors.
Can be limited by:
1. Area: Pearson v Coleman Bros [1948]: child attacked in animal enclosure - no signs - visitor.
2. Time: Stone v Taffe and Another [1974]: function held in pub - guest fell at 1am and died - visitor; occupier can restrict by time limit but must be clear.
3. Purpose: Tomlinson v Congleton [2003]: uses of lake made clear (not swimming): Tomlison swam; trespasser not visitor.

Question 15

2. Implied permission; concept and case?

Answer 15

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. This can be limited by notice.
Lowery v Walker [1911]: land used as shortcut for 34 years: attacked by horse (note pre-1984 though where trespassers not owed positive duty).
Compare Lowery v Walker with Edwards v Railways Executive [1952]: railway spot used as shortcut - fence repaired - but repeated down. Nine year old hit by train. C no implied permission - reasonable steps to prevent.

Question 16

3. Doctrine of allurement; concept and case?

Answer 16

Prior to the enactments of the OLA 1957 and 1984, the courts sometimes used ingenious methods so as to construe a claimant as a visitor:
Taylor v Glasgow City Council [1922]: child died after eating poisonous berry’s: bush seen as allurement:
(This doctrine though is largely redundant now due to the enactment of the OLA 1984).

Question 17

4. Lawful authority; concept and case?

Answer 17

Under 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.
See Ogwo v Taylor [1987]

Question 18

5. Contractual permission; concept and case?

Answer 18

Under s.5(1) OLA 1957, if a person enters the premises under the terms of a contract with the occupier: implied term that the entrant is owed the common duty of care.
Maguire v Sefton MBC [2006]: D operated leisure centre. C injured on exercise machine. D owed duty but not liable as contract with third party for maintenance of machines - recent inspection.

Question 19

What happens once it has been determined that the claimant is a visitor?

Answer 19

Claimant will automatically be owed a duty of care under s.2(1) OLA 1957.

Question 20

Standard of care under OLA 1957?

Answer 20

“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” - extension on reasonable man duty.
VISITOR not the PREMISES that must be safe.

Question 21

Different standard’s of care?

Answer 21

Personal characteristics - i.e. the blind.
Children - higher standard
Persons entering in exercise of their calling - lower.

Question 22

What’s required of occupier’s re. children? Is this ever different?

Answer 22

More may be required:
Key: Jolley v Sutton LBC [2000]: abandoned boat - children started to repair - C successful as reasonable foreseeable; no novus actus. Breach under OLA 1957.
NOTE case law re. supervisory role of parents:
Phipps v Rochester Corporation [1955]: occupier entitled to assume child subject to parental care.
Simkiss v Rhondda Borough Council (1983): 7 year old injured on hill; father did not seem hill dangerous.
- Not reasonable to hold D to higher standard than reasonably prudent parent.
However; if children known to be present in area, greater care may be appropriate.

Question 23

What’s required of occupier’s re. persons entering in exercise of a calling? Case?

Answer 23

Less is expected re. skilled visitors.
Roles v Nathan:
Chimney sweeps: died from fumes. No liability - should have known, PLUS occupier warned several times.

Question 24

What’s the test to see if the D has fallen below the standard of care?

Answer 24

Same as negligence: likelihood and magnitude of hard, cost of precautions etc.
Tedstone v Bourne Leisure Ltd: jacuzzi water slip: all reasonably done. No claim.
Courts will consider resources available.
Key: Laverton v Kiapasha [2002]: takeaway floor slippery: D had done all reasonably expected of him.

Question 25

Can warning notices make a difference to liability?

Answer 25

Important to distinguish between warning notice and exclusion notice/clause.
Under s.2(4)(a) OLA 1957 if the occupier gives a warning to a visitor of danger, that will only be sufficient to satisfy the common duty of care if:
“in all the circumstances it was enough to enable the visitor to be reasonably safe.”
Where there is adequate warning, i.e. Danger keep out - lift shaft - duty may be discharged. But very obvious dangers may not require warnings.

Question 26

What’s the situation with independent contractors?

Answer 26

General rule - duty owed by occupier non-delegable.
However, where building, construction, repair or renovation is carried out by an independent contractor, the occupier may escape liability if they acted reasonably in entrusting the work to the independent contractor. s2(4)(b)

Question 27

What are the elements of acting reasonably in hiring a contract? s2(4)(b)

Answer 27

1. Hiring an independent contractor: reasonable to use contractor - complexity of the task.
2. Selecting the independent contractor: reasonable to use contractor in question; qualifications etc?
3. Supervising and checking the work was properly done: can only do what is reasonable - facts of case.
   - Haseldine v Daw: lift dropped (engineers negligence) D had no responsibility as work was technical.
   - Woodward v Mayor of Hastings: pupil fell on icy step - done by cleaner. D had responsibility - no technical knowledge issue.

Question 28

What do the courts do with Causation and Remoteness under OLA 1957?

Answer 28

Nothing laid out - courts assume made out unless particular issues appear.

Question 29

Defences under OLA 1957?

Answer 29

1. Consent/volenti

2. Contributory negligence

Question 30

1. Consent/volenti?

Answer 30

Section 2(5) OLA 1957: four-stage test under general negligence.

Question 31

2. Contributory negligence

Answer 31

Section 2(3) OLA 1957 provides that in determining the common duty of care “the degree of care, and of want of care, which would ordinarily be looked for in such a visitor” is taken into account.
The normal principles of contributory negligence apply as given under s.1 Law Reform (Contributory Negligence) Act 1945. Two-stage test under negligence applies.
Children: judged against reasonable child.

Question 32

What does OLA 1984 govern?

Answer 32

Duty owed to NON-visitors.

Question 33

What did the British Railway Board v Herrington case introduce?

Answer 33

Duty of ‘common humanity’.
Train fence that was damaged: although trespasser, owed duty of common humanity in negligence and was successful. This duty formed basis of OLA 1984.

Question 34

How is loss, occupier and premises defined in OLA 1984?

Answer 34

Loss: occupier only liable for physical injury; not property damage.
Occupier: defined same at 1957 OLA.
Premises: same as 1957 OLA.

Question 35

What case is the key definition of trespasser from?

Answer 35

Robert Addie & Son (Collieries) Ltd v Dumbreck [1929]:
“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 36

Is there automatic duty of care to non-visitors?

Answer 36

No: three stage test: contained in ss. 1(3)(a)–(c) OLA 1984.

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 (in either case, whether the other has lawful authority for being in that vicinity or not); and
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.

Question 37

1. Aware of danger (s.1(3)(a) OLA 1984): concept and case?

Answer 37

Must be aware of the danger or have reasonable grounds to believe it exists.
N Rhind v Astbury Water Park Ltd [2004]: head injuries when dived into lake: no duty; container not visible from surface.

Question 38

2. Knowledge that the other is in the vicinity (s.1(3)(b) OLA 1984): concept and case?

Answer 38

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 Properties Ltd [2003]: No duty: C swam into harbour: not aware people would do this in winter.
Swain highlighted D must have ACTUAL KNOWLEDGE of C’s presence or facts which create reasonable belief.

Question 39

3. Reasonable to protect trespasser against the risk (s.1(3)(c) OLA 1984): concept and case?

Answer 39

Balancing costs of requiring occupier to make premises safer against foreseeability and seriousness of injury.

Question 40

Breach: standard of care under OLA 1984?

Answer 40

Section 1(4) 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 41

How to ascertain whether D has fallen below standard of care under OLA 1984?

Answer 41

Effectively same as OLA 1957.
Re. reasonable - likely courts will consider non-visitor - duty not as onerous as OLA 1957.
OLA 1984 cases have often turned upon whether the occupiers were aware that people were trespassing.

Question 42

3 cases re. breach of duty?

Answer 42

N KEY: Ratcliff v McConnell and Harper Adams College [1997]: drunk student accessed swimming pool. Dived and broke neck. There was sign but it was dark. No duty. Trespass very uncommon. Lots of steps taken.
N Swain v Natui Ram Puri [1996]: high fence round factory. Child entered through gap and fell and injured. No duty - rarely children, and fence was evidence of reasonable steps.
Y Young v Kent County Council [2005]: Contrast: council liable - children injured after climbing on school risk. Known risk and report said roof was brittle.

Question 43

Do warning notices make a difference under OLA 1984?

Answer 43

Section 1(5) OLA 1984 provides that 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".
Easier to satisfy the duty under the OLA 1984 than the OLA 1957 by warning notices. This is because trespassers have a choice as to whether they come onto premises.

Question 44

Causation and remoteness under OLA 1984?

Answer 44

Nothing in the OLA 1984 dealing with causation and remoteness. Same way as OLA 1957.

Question 45

Defences under ola 1984?

Answer 45

1. Consent / volenti; and

2. Contributory negligence.

Question 46

1. Consent / volenti?

Answer 46

The defence of volenti is provided for under s.1(6) OLA 1984.
Tomlinson v Congleton BC [2003]: swimming in lake: ‘willingly accepted risk’
Seems the courts are happy to find volenti against a trespasser where there was an inherent danger in the activity which caused the injury.

Question 47

2. Contributory negligence?

Answer 47

This partial defence is not provided for in the OLA 1984 but has been successfully relied upon by defendants.

Question 48

Can occupier’s under OLA 1957 use exclude his duty?

Answer 48

Yes - under s2(1): BUT four restrictions:

1. Section 3 OLA 1957;
2. Unfair Contract Terms Act 1977 (‘UCTA 1977’);
3. Consumer Rights Act 2015 (‘CRA 2015’); and
4. Common law.

Question 49

1. Section 3 OLA 1957 exclusion clause?

Answer 49

Section 3 states that the occupier cannot, by contract, exclude or restrict the common duty of care which he owes to a third party.

Question 50

2. Unfair Contract Terms Act 1977 (‘UCTA 1977’) exclusion clause?

Answer 50

Business to business liability.
• s 2(1): states that a person cannot exclude or restrict his liability for death or personal injury resulting from negligence.
• s 2(2: states that in relation to loss other than death or personal injury , a person cannot exclude/restrict his liability for negligence except in so far as the term/notice satisfies the requirement of reasonableness . See s11 and schedule 2.
• s 2(3) UCTA 1977: fact that a person is aware of an exclusion clause/notice does not in itself mean that they have consented to the risk.

Question 51

3. Consumer Rights Act 2015 (‘CRA 2015’) exclusion clause?

Answer 51

Applies where the contract/notice is between a consumer and a trader.
• s 65(1): “A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence”. The definition of negligence includes a breach of the common duty of care imposed by the OLA 1957 (s.65(4)(c) CRA 2015).
• In respect of damage other than death or personal injury, an unfair term or notice is not binding on the consumer (s.62(1) and s.62(2) CRA 2015 respectively).
• A term is unfair “if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer” (s.62(4) CRA). A similar clause exists in relation to notices, see sections 62(6) and (7) CRA 2015.
• ss 62(5) and Part 1 Schedule 2 of the CRA 2015 provide further guidance in determining whether a term is unfair.
• s 65(2) CRA 2015 states that where a term of a consumer contract/notice purports to exclude or restrict a trader’s liability for negligence, a person is not to be taken to have voluntarily accepted any risk merely because they agreed to or knew about the term/notice.

Question 52

4. Common law exclusion clause?

Answer 52

If neither UCTA 1977 nor CRA 2015 applies, for any type of loss suffered by the claimant, such restrictions could be judged against the principle of ‘common humanity’ given in British Railway Board v Herrington.

Question 53

Exclusion or limitation clauses re. OLA 1984?

Answer 53

OLA 1984 is silent re. excludng liability.
2 arguments:
1. OLA 1984 lays down a bare minimum that cannot be evaded
2. If this were the case, then it would be unfair as trespassers would be in a better position than lawful visitors, a situation clearly contrary to the policy of the OLA 1984. It is likely that the same common law approach would apply as to the OLA 1957