Tort Law - Occupiers Liability

Question 1

What is occupiers liability?

Answer 1

Occupiers liability is an area of negligence that has been governed by statute, the statutes impose a duty of care on occupiers of premises to both visitors and trespassers and outlines the breadth of the duty with each type of visitor respectively.

Question 2

What are the 1957 act and the 1984 act?

Answer 2

The Occupiers Liability Act 1957 outlines the duty of care owed to lawful visitors whilst in / on their premises.
The Occupiers Liability Act 1984 outlines the duty of care owed trespassers whilst in / on their premises.

Question 3

What does occupiers liability concern?

Answer 3

Occupiers liability concerns harm / loss caused to the claimant by dangers arising from the state of the premises or condition of the land – as opposed to the actions of the occupier. Occupiers’ liability therefore concerns the maintenance of the premises.

Question 4

Occupier: what is an occupier?

Answer 4

It is important to note the use of the word ‘occupier’ rather than ‘owner’, an occupier could be an owner, but equally a tenant or resident, it could be any person maintaining a level of control over premises. There is no statutory definition of the word occupier, the term has instead been developed by the common law.

Question 5

Occupier: which case defined the meaning of occupier?

Answer 5

Wheat v E Lacon & Co. A man renting out a room in a pub was killed when falling down the stairs, there was no light and the hand rail stopped before the bottom of the stairs. Both the manager and his employers were regarded as occupiers, the manager was also an occupier because an occupier is some-one who has a “sufficient degree of control over premises”. Therefore, there can be more than one ‘occupier’.

Question 6

Occupier: which case held that there was no occupier?

Answer 6

Bailey v Armes. A young boy was allowed out onto a supermarket roof adjoining his flat by his parents but strictly told not to take anyone else out there, the child took a friend out and they were injured. It was held that there was no occupier of these premises, neither the parents nor the supermarket were maintaining control or had sufficient control of the roof at the time of the incident.

Question 7

Premises: what is the definition of premises?

Answer 7

The term ‘premises’ is not specifically defined by either of the relevant statutes. However, s1(3)(a) Occupiers Liability Act 1957 makes reference to a person have occupation or control of any “Fixed or movable structure including any vessel, vehicle and aircraft”.
Premises have been known to include houses, office, buildings, a ship in dry dock, vehicle, lift, ladder and even a stack of boxes.

Question 8

OLA 1957: Duty of care. What is the key provision?

Answer 8

s2 OLA 1957 establishes a ‘common duty of care’. This means there is a duty to take such care as is reasonable to see that the visitor is safe for the purposes of their presence.

Question 9

OLA 1957: Duty of care according to the type of visitor. What are the types of visitors?

Answer 9

Adults, children and skilled visitors (first have to mention that they are an adult visitor)

Question 10

OLA 1957: Duty of care according to the type of visitor. Adults: explain?

Answer 10

There are four categories of adult visitors who are covered by the 1957 Act. Licensees, those permitted onto premises for certain time / purpose e.g. postmen, invitees, those people specifically invited on the premises, those with contractual permission e.g. purchase of a ticket and those with statutory rights of entry such as a meter reader or police officer.

Question 11

OLA 1957: Duty of care according to the type of visitor. Adults: which case held what the duty was not?

Answer 11

Dean and Chapter of Rochester Cathedral. Held that under the 1957 Act there was no duty to ensure premises are in a pristine state. The duty is not to guarantee safety; liability only arises where there is a real source of danger which a reasonable person would recognise as requiring action. In order to impose liability, there must be over and above the risk of injury from the minor blemishes and defects which are habitually found on any road or pathway.

Question 12

OLA 1957: Duty of care according to the type of visitor. Adults: which case held that a duty cannot go on indefinitely?

Answer 12

Cole v The Royal British Legion. A woman was injured when her foot got stuck in a hole used for may-pole two years earlier. It was held that a duty cannot go on indefinitely. 2 years after the danger was created was too long to bring a claim under the law of occupier’s liability.

Question 13

OLA 1957: Duty of care according to the type of visitor. Children: what is the duty of care owed and what section is this contained in?

Answer 13

s2(3)(a) OLA 1957: ‘(a)an occupier must be prepared for children to be less careful than adults;’
This means an additional special duty is owed to children. This is a subjective measure as according to age of that child. Parents/guardians will also retain a duty to protect children, especially where younger children are involved. Cases involving children often involve a balance between the duty of the occupier to ensure the child’s safety and the responsibility of parents for their children.

Question 14

OLA 1957: Duty of care according to the type of visitor. Children: which case supports that the duty of care must be higher for young children?

Answer 14

Glasgow Corporation v Taylor. A 7 year old boy ate poisonous berries in a public park, the court held the Council was liable. They were aware of the danger and that it created an allurement to young children.

Question 15

OLA 1957: Duty of care according to the type of visitor. Children: which case supports that parents maintain a duty to protect their children, especially younger children?

Answer 15

Phipps v Rochester Corporation. A five-year old was playing on open ground owned by the Council with his seven-year-old sister when he fell down a trench and was injured. The court held that the council not liable as the occupier is entitled to expect parents of young children to stop them going to places potentially unsafe.

Question 16

OLA 1957: Duty of care according to the type of visitor. Skilled visitor: what is the duty or care owed and what section is this contained in?

Answer 16

s2(3)(b) OLA 1957:
‘an occupier may expect that a person in the exercise of his calling will appreciate and guard against special risks ordinarily incident to it so far as the occupier leaves him free to do so’.
This means that an occupier can expect a tradesman to guard against ordinary risks associated with his profession, this means that the claimant does not owe a duty to warn skilled visitors of risks associated with their profession.

Question 17

OLA 1957: Duty of care according to the type of visitor. Skilled visitor: which case supports this?

Answer 17

Roles v Nathan. Two chimney sweeps ignored the direction of an engineer to evacuate due to excessive carbon monoxide when cleaning some assembly room chimneys. They entered the premises despite being told not to and as a result, they died following the inhalation of carbon monoxide. The occupiers were not liable as they could have expected the chimney sweeps to be aware of the particular danger and had been specifically warned about it.

Question 18

OLA 1957: Breach of duty. How does the occupier breach their duty?

Answer 18

Occupiers have to reach the standard of care of a reasonable occupier, if they fail to reach that standard they will be in breach of the common duty of care.

Whilst the standard risk factors in negligence should also be applied to occupiers liability, there are additional factors contained with the Act that can also be considered when establishing reasonableness and breach.

Question 19

OLA 1957: Breach of duty. Damage caused by independent contractors: what does this mean? What happens in these circumstances?

Answer 19

Sometimes a visitor may be caused harm by the negligent work of tradesman upon the premises. In these circumstances they may still seek a claim against the occupier, the statute specifies when in these circumstances the occupier will not be found liable.

Question 20

OLA 1957: Breach of duty. Damage caused by independent contractors: what section is this contained in? What does it state?

Answer 20

s2(4)(b) OLA 1957:
‘where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done’.

Question 21

OLA 1957: Breach of duty. Damage caused by independent contractors: what are the three requirements that need to be established in order for the occupier to be able to prove that the liability stands with the contractor?

Answer 21

1. It must be reasonable for the occupier to have entrusted the work to the independent contractor.
2. The contractor hired must be competent to carry out the task.
3. The occupier must check that the work has been done properly.

Question 22

OLA 1957: Breach of duty. Damage caused by independent contractors: It must be reasonable for the occupier to have entrusted the work to the independent contractor, explain?

Answer 22

It must be proved that it was reasonable for the occupier to have entrusted the work to the specific independent contractor given the nature of the task. The more specialised/complex the work is there more reasonable it is for the occupier to have hired an independent contractor to do it.

Question 23

OLA 1957: Breach of duty. Damage caused by independent contractors: It must be reasonable for the occupier to have entrusted the work to the independent contractor, which case supports this?

Answer 23

Haseldine v Daw & Son. Specialist engineers told the owner and occupier of a block of flats that there was some wear in lift rams but that it was safe to use, they failed to re-pack the machine properly following inspection and the claimant was killed when using the lift. It was held that the occupier was not liable for the negligent repair or maintenance of lift as the work was highly specialist and it was reasonable to give the work to a specialist team.

Question 24

OLA 1957: Breach of duty. Damage caused by independent contractors: The contractor hired must be competent to carry out the task, explain?

Answer 24

In order for the contractor to be regarded as competent it is expected that the occupier would check that they have relevant qualifications, experience, recommendations and if insurance is in place.

Question 25

OLA 1957: Breach of duty. Damage caused by independent contractors: The contractor hired must be competent to carry out the task, which case supports this?

Answer 25

Bottomley v Todmorden Cricket Club. It was held that the Cricket Club were liable because they had failed to choose safe and competent contractors for a firework display which injured the claimant.

Question 26

OLA 1957: Breach of duty. Damage caused by independent contractors: The occupier must check that the work has been done properly, explain? And cases?

Answer 26

The more complicated the work / less expert the occupier will increase the need to hire specialists to check work e.g. architect or surveyor. If the work is not complex, the occupier should do so himself (Woodward v Mayor of Hastings), but not if the work is complex (Haseldine v Daw)

Question 27

OLA 1957. Defences: what are the defence available to Occupiers Liability?

Answer 27

Warning signs and exclusion clauses are specific to occupiers liability. However, Volenti and Contributory negligence also act as defences to occupiers liability.

Question 28

OLA 1957: Defences: what section states a duty can be discharged by a warning sign?

Answer 28

s2(4) OLA 1957:
‘where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe’.
A warning notice doesn’t automatically prevent liability, in order to discharge the duty it must be proved the warning is enough to keep the claimant safe. What amounts to a sufficient warning is a question of fact that will vary on a case-by-case basis, dependent upon the nature of the particular danger posed. In some cases a notice alone is sufficient, with increased danger additional safeguards may be required to avoid liability.

Question 29

OLA 1957: Defences: Warning notices: which cases support this?

Answer 29

Darby v National Trust (2001): the claimant’s husband drowned in a pond owned by the National trust, the trust had taken no measure to prevent or prohibit swimming. It was held that the NT were not liable by failing to have a warning sign, it was found that if the danger was so obvious, a warning sign was not needed to outline the danger.
English Heritage v Taylor (2016): the claimant was walking around a castle and fell down a sheet 12-foot drop into a dry moat, there was no warning sign of the danger. It was held that EH were liable, whilst adults do not need to be warned of obvious dangers, they do need notice of risks where they did not have a genuine and informed choice.
Rae v Marrs (1990): the premises were dark and there was a deep pit inside, it was held that a warning sign by itself was insufficient. Should have been barriers.

Question 30

OLA 1957: Defences: what is an exclusion clause?

Answer 30

An exclusion clause is a clause / term / statement restricting, reducing or excluding any liability of the defendant for loss or harm caused.

Question 31

OLA 1957: Defences: what section states a duty can be discharged or limited due to an exclusion clause?

Answer 31

S 2(1) states that an occupier is able to ‘restrict, modify or exclude his duty by agreement or other-wise’. This means that if an occupier puts up a notice which attempts to restrict liability for negligence such as ‘park at your own risk’ or ‘the occupier accepts no liability for loss or damage to property’ they can limit or exclude completely their liability for any loss caused.

Question 32

OLA 1957: Defences: in what situations are exclusion clauses not enforceable and why?

Answer 32

Exclusion clauses are not enforceable against visitors who have a right to be there as licensees. It cannot be used where the occupier is a business and is trying to exclude his liability for death or personal injury. This is because s.65 Consumer Rights Act 2015 states ‘a trader cannot by… a consumer notice exclude or restrict liability for death or personal injury resulting from negligence’.
In the case of other loss of damage such as property damage, a business cannot exclude or restrict thier liability for negligence unless it is reasonable to do so. This is because s.62 Consumer Rights Act 2015 states ‘in cases of other damage, contract terms and notice must be fair’.

Question 33

OLA 1984: Duty of care. What does this act protect against? And what section is this stated in?

Answer 33

The Act specifies the circumstances in which a duty to protect against personal injury will be owed to a trespasser.
s1(1):
The rules enacted by this section shall have effect, in place of the rules of the common law, to determine —
(a)whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and
(b)if so, what that duty is.

Question 34

OLA 1984: Duty of care. Which section contains the three conditions that must be established? What are the three conditions?

Answer 34

s1(3) Occupiers Liability Act 1984:
‘An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if —(a)he is aware of the danger or has reasonable grounds to believe that it exists;(b)he knows or has 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; and (c)the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection’.

Question 35

OLA 1984: Duty of care. 1. He is aware of the danger or has reasonable grounds to believe that it exists: explain? Which case supports this?

Answer 35

It must be proved that the defendant occupier was aware of the danger that caused the injury to the claimant, or reasonably knew it is existed.
Rhind v Astbury Water Park (2004): the claimant was injured when diving into a mere, he was injured by a submerged fibreglass container resting at the bottom of the mere. The occupier was not liable because they did not know of the dangerous object.

Question 36

OLA 1984: Duty of care. 2. He knows or has 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: explain? Which case supports this?

Answer 36

This means that there is some awareness of the possibility that trespassers may be in or be come to be in the vicinity of the particular danger.
Ratcliff v McConnell (1999): students who had been drinking broke into a campus swimming pool, one of the claimants was seriously injured when he jumped into the pool at a point which was too shallow. The defendants were not liable as in recent years the College had taken a number of steps to prevent trespassers so could logically assume there were no more trespassers. Additionally, occupiers are not required to warn adults of obvious dangers.

Question 37

OLA 1984: Duty of care. 3. The risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection: explain?

Answer 37

This element requires the consideration of a number of factors, for example the nature of the premises, the nature of the danger, the foreseeability of trespassers, the possible age of trespassers, the gravity of the possible injury, the cost of the possible protection etc.

Question 38

OLA 1984: Child trespassers: what is the duty of care? Which case supports this?

Answer 38

The same statutory rules apply to child visitors as adult visitors.
Keown v Coventry Healthcare NHS trust (2006): an 11-year old was injured when climbing on the exterior wall of a hospital, it was found that it was not the state of the premises that was at fault, but what the child was doing in it. The hospital was not liable.

Question 39

OLA 1984: Breach of duty: how do the courts determine if the defendant has breached their duty?

Answer 39

A defendant occupier will be compared to a reasonable occupier, they will be in breach of their duty where they have not taken ‘reasonable’ steps to prevent personal injury, what is reasonable will vary upon a case-by-case basis.

Question 40

OLA 1984: Defences: what are the defences available?

Answer 40

Warning notices, and also Volenti and contributory negligence.

Question 41

OLA 1984: Defences. Warning notices: what section is this contained in?

Answer 41

S1(5) OLA 1984:
‘Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.’
This means that the duty can be discharged, there will be no breach if a warning sign has been used and this is reasonable given the particular danger.

Question 42

OLA 1984: Defences. Warning notices: Do they apply to children?

Answer 42

Whether the warning applies to a child will depend upon whether the child is old enough to understand the warning.