occupiers liability- the 1957 act

Question 1

what is occupiers liability?

Answer 1

• duty owed by occupier or land owner to those who come onto their land
• must be a duty, breach, causation and damage which is not too remote
• 2 statutes govern this area of law, a higher level of protection is afforded to lawful visitors

Question 2

OL Act 57 vs OL Act 84

Answer 2

1957- liability to ‘lawful visitors’

1984- liability to persons other than ‘his visitors’ i.e. trespassers

Question 3

definition of ‘occupier’

Answer 3

OLA 1957 s. 1(2):
- does not state who is an occupier, instead it says that common law rules apply

-WHEAT V LACON (1966)
4 categories of occupiers were identified:

1. tenants are occupiers when renting
2. landlords can be occupiers of parts of the building they still have access to
3. owners who allow people to use their premises remain occupiers
4. independent contractors can sometimes be occupiers as well as the owner of the property

Question 4

definition of ‘premises’

Answer 4

s.1(3)(a):
- also includes any vessel, vehicle or aircraft

Question 5

definition of lawful visitors

Answer 5

• under the common law, a visitor is a person who has express or implied permission to enter the premises

examples of express visitors:

• expressly invited onto the premises
• a guest of the occupier
• occupiers can limit the extent of the express invite in terms of place, behaviour or time
• when you invite a person into your home, you can invite them at a certain time, to a certain part of the building and if they deviate from that place that they are entitled to go, then they are deemed as a trespasser
• the Calgarth (1927) Scrutton LJ: ‘When you invite a person into your house to use the staircase, you do not invite him to slide down the bannister’. - just because you’ve invited a person into your home doesn’t mean they can’t become a trespasser if they exceed their permission and will no longer be a lawful visitor

examples of implied visitors:

• includes those who haven’t been expressly invited onto the premises but their presence is assumed to be unobjectionable to the occupier
• this could include the postman, the milkman, a delivery person

Question 6

the ‘common duty of care’ - OLA 1957 S.2(2)

Answer 6

• the occupier is under a duty to keep the visitor reasonably safe for the purposes for which he is permitted to be there

Question 7

guidelines on applying the standard of care

Answer 7

s.2(3)(a):
- an occupier must be prepared for children to be less careful than adults

s.2(3)(b):
- an occupier can expect a professional person, in the exercise of theiir calling, to appreciate the risks ordinarily involved with it

s.2(4)(a):
- a warning may discharge the duty of care

s.2(4)(b):
- the occupier is not liable for the fault of an independent contractor if they took reasonable steps to ensure the contractor was competent

Question 8

children- s.2(3)(a)

Answer 8

Phipps v Rochester Corp (1955):
- responsibility for children of ‘tender years’ rests primarily with the adult accompanying them
- ‘Tender years’ is quite vague but means young

Jolley v Sutton BC (2000):
- HOL said that courts should not underestimate the ingenuity of children in finding unexpected ways of doing mischief

Question 9

professional callers- s.2(3)(b)

Answer 9

Roles v Nathan (1963):
- D was not liable for the death of two chimney sweeps killed by carbon monoxide fumes while sealing up D’s boiler

• professional callers are expected to guard against risks that are ordinary to their work
• if they had fallen through a rotten floorboard and been injured, the position would have been otherwise
• D not liable where the danger is a special risk ordinarily involved in their job

Question 10

giving a warning of the danger -s.2(4)(a)

Answer 10

Darby v National Trust (2001):
- C drowned in a pond of deep murky water. there was no duty to place signs around the pond, the risk was obvious
- there is no duty to warn against obvious risks

Tomlinson v Congleton (2003):
- the V was volenti (consented to the risk) when he ignored warning signs and dived into a lake

Question 11

dangers caused by independent contractors- s.2(4)(b)

Answer 11

• where the visitor suffers damage due to faulty work by an independent contractor, the occupier is not normally liable if, in all the circumstances of the case:

1. reasonable to entrust the work to an IC
2. O took reasonable steps to check IC was competent; and
3. O took reasonable steps to check the work had been properly done

Haseldine V Daw (1942):
- c was killed when a lift fell to the bottom of its shaft due to the negligence of independent contractors.
- it was held that the occupier had discharged his duty by engaging an apparently competent firm of engineers to maintain the lift
- an occupier cannot be expected to inspect work of a technical nature

vs

Woodward v mayor of Hastings (1941):
- a pupil was injured when he slipped on a snow covered step. the occupier tried to blame an independent contractor (the cleaner). the occupier was liable
- where the work is of a routine nature requiring no skill or expertise, the occupier may be expected to check it

Question 12

defences to OLA 1957

Answer 12

• giving warning of the danger- s.2(4)(a)
• volenti non fit injuria- s.2(5) OLA 1957- If V ignores a risk, he consents and is volenti
• contributory negligence- damages may be reduced under the Law Reform (contributory negligence) Act 1945 where a visitor fails to take reasonable care for their own safety

-exclusion of liability- s.2(1) OLA 1957 allows an occupier to extend, restrict, exclude or modify his duty to visitors in so far as he is free to do so