Occupiers Liability

this recognises that people who occupy land (including buildings on the land) have a duty of care towards others who come onto the land
duty relates to the dangerous condition of the land rather than its use.

Definitions:
before 1957 - law of negligence covered liability for harm caused by dangerous premises.
it was difficult to apply because there were different levels of protection for different people
there was a potential for injustice especially in relation to children
OLA 1957 was passed to make law consistent and less complex - but only provided protection for visitors only
OLA 1984 was a way of combatting the problem in relation to trespassers who were inured even though they have more limited protection
liability - only be imposed on defendant if the injury or damage is the result of:

  • condition of the land
  • dangerous conduct that is a continuing source of danger

Occupier?
neither act gives a definition of occupier - lord denning provided a definition in Wheat v Lacon
the occupier doesnt have to be in physical possession as illustrated by Harris v Birkenhead Corporation

Premises?
both acts impose liability on 'occupiers of premises'
premises are defined in s1(3) OLA 1957 as including land, buildings and 'any fixed or movable structure'
definition includes any vessel, vehicle or aircraft
it is a very wide definition and case law shows that if can include: a lift, a park, and a boat

Lawful Visitors & OLA 1957:
visitor is someone who has express or implied permission from occupier to enter their premises - permission can be implied from the circumstances e.g. people delivering goods to a property
s2(1) OLA 1957 - duty of care that is owed by an occupier to the visitor
if the duty is breached then the claimant can bring action for personal injury and damage to property - not for pure economic loss. this means that a claimant cant bring a successful claim if the only loss suffered is loss of profit or a reduction in value of an item
standard of care required by the act is set out in s2(2): occupiers have a duty towards visitors to take 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 which he is invited
this is called the common duty of care and requires the occupier to make visitor safe - occupiers are not required to provide absolute safety as this would be impracticable - have a duty only to take reasonable care to make the visitor safe which can be dome by giving warning
cases such as wood v smith and western restaurants confirm that the occupier doesnt have to make premises absolutely safe - in this case, claimant fell at a restaurant because of unevenness and gaps in old floorboards - claim failed because minor defects that are not dangerous need not be rectified by the occupier

Children:
s2(3)(a) OLA 1957: an occupier must be prepared for children to be less careful than adults. if occupier allows a child to enter the premises then the premises must be reasonably safe for child of that age
range of cases that illustrate what the occupier needs to do to make a child visitor safe - occupier has to consider whether the premises are safe for a child of a particular age and whether the child is accompanied and the provision of warnings
an occupier will be allowed to assume that very young children will be accompanied by someone supervising them - can reduce degree of care required by occupier as seen in Phipps v Rochester Corporation

People carrying out a trade or calling:
s2(3)(b) OLA 1957 sets out law relating to someone who is exercising their common calling on the occupiers liability - this refers to a person whom the occupier has invited on the premises to carry out a job and who has been injured as a result
section states:
an occupier may expect a person, in exercise of their calling, will appreciate and safeguard against special risks that are usually connected with it

Liability for torts of independent contractors:
independent contractors are employed by an occupier to do specific, usually specialist, work and s2(4)(b) OA 1957 is relevant section when a person is harmed by defective work that the independent contractor has carried out
occupier will not be liable for damage caused to visitor due to faulty execution of work by an independent contractor as long as:

  • it was reasonable to entrust the work to an independent contractor
    • the occupier had taken reasonable care to see that the independent contractor was competent
    • the occupier had taken reasonable care to see that the work had been done properly

there are a number of points to make in relation to this section. first it will only apply where there is evidence of faulty execution of...construction, maintenance or repair - if there is no evidence of this, the normal negligence principle applies
the more technical work, the more likely it will be reasonable to appoint an independent contractor. if occupier doesnt have any technical skill most jobs that need a technical ability will be regarded as reasonable for appointment of independent contractor
generally - in order to fulfil the element of competency, occupier needs to do very little; checks with local trade associations, obtaining references or checking insurance will be sufficient - been suggested that if the occupier is a company then more checks would need to be made
the occupier will be liable if they fail to take precautions for extra hazardous activities, e.g. failing to check that the independent contractor has the relevant public liability insurance and risk assessment for the activity
guidelines about what is expected from an occupier regarding an independent contractors insurance were laid out in Gwilliam v West herts NHS Trust

Unlawful visitors & OLA 1984

Exclusion of liability & defences:
defendant can avoid liability under both acts - OLA 1957 states that duty of care can be restricted, modified or excluded - defences are same for other torts

Exclusion of liability s2(1):
duty of care can be extended, restricted, modified or excluded - done by way of contract or notice, however the Unfait Terms act 1977 will apply if premises are being used for business
however an occupier cant exclude liability for death or personal injury caused by negligence - if an occupier tries to exclude liability for property damage, the reasonableness test will apply
there is one case where there was no liability for death - White v Blackmore

Contributory Negligence:
Law reform act 1945 applies - where visitors failure to take reasonable care for own safety is a cause of harm suffered, amount of damages awarded will be reduced

Warnings s2(4)(a):
if a visitor is given sufficient warning of a danger to make them reasonably safe, the occupier will not be liable for any damage that the claimant suffers because of danger
positioning, size and wording of sign are vital - warning must refer to precise risk or danger that hte visitor would be facing
however in some instances the danger is so obvious that there is no need for a warning sign - cotton v derbyshire dales district council - in contrast a warning would have been useless in Rae v Mars Ltd given that the hole in the ground was immediately inside the door

Volenti non fit injuria (consent) s2(5):
common duty of care doesnt impose upon an occupier any obligation to take care if the risk of harm has been willingly accepted by the visitor
in contrast, a visitor doesnt always willingly accept a risk just because the occupier has placed a warning sign on the premises - sign must state the type of harm that may occur and it has to be clear

Scope of duty:
before 1984, common duty of humanity applied to trespassers who were injured on an occupiers premises, as OLA 1957 did not cover this category of claimant - the 1984 act was passed following recommendations made by Law commission and decision made in BRB v Herrington
term unlawful visitor usually refers to people who go onto premises without permission but there are broadly three categories of people who fall into the definition:

  1. trespassers
  2. those lawfully exercising a right to roam
  3. those lawfully exercising a private right of way

we are concerned only with trespassers:

  • trespasser is a person who has entered the premises without permission
  • remained on the premises once permission has expired or been withdrawn

persons presence on the premises must be objected to. trespassers include burglars, squatters or people who have innocently wandered somewhere they are not allowed to - it is possible to become a trespasser in specific parts of a building or land - Tomlinson v Congleton Borough Council

What is the duty of care?
according to s1(1)(a) the occupier will owe a duty of care to persons other than visitors - act applies in respect of any risk of trespasser suffering injury on the premises because of:

  • any danger on the premises
  • things done or omitted to be done on the premises

so that the law acknowledges that trespassers should have lesser rights, trespasser can claim for personal injury only - trespasser cant recover damages for property damage or pure economic loss
case of keown v coventry healthcare NHS trust - is an example of a claim failing because the premises were not dangerous

What is the extent of the duty owed to a trespasser?
due to trespassers will only exist if all 3 requirements in s1(3) are met:

  • (a) the occupier 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 (trespasser) is in vicinity of danger concerned or that he may come in the vicinity of the danger
  • (c) the risk is one which in all the circumstances of the case, (the occupier) may reasonably be expected to offer the other some protection from

all criteria must be met and they must be considered in the light of the circumstances in which the alleged breached caused injury

What is the standard of care?
the standard of care is set out in s1(4): to take such care as is reasonable in all the circumstances of the case to see that the other does not suffer injury on premises because of the danger concerned
unliike the common law duty of care to trespassers, this is objective rather than subjective. the court will take into account the factors such as:

  • age of trespasser
  • nature of premises
  • extent of risk
  • practicability of precautions

any factors that are personal to defendant are not considered and do not form part of all the circumstances
in donoghue v folkestone properties - the circumstances that needed to be considered were the time of year that the incident occurred and the fat that there was no reason to believe that anyone would be swimming then
in Ratcliff v McConnell the risk of harm was obvious and defendant had done everything they could to deal with it

Exclusion of liability & Defences:
unlike the 1957 act, the 1984 act does not say that the duty to take reasonable care can be excluded - liability could be excluded as the act doesn't say it is not possible
although as the duty in the 1984 act reflects the common law duty of humanity this cant be excluded as it is the minimum standard below which occupiers can fall

Contributory Negligence:
with OLA 1957 this provides a partial defence and damages will be reduced accordingly - has been raised as a defence in some of the cases already mentioned where the cliamant contributed in some way to the harm suffered

Warning s1(5):
occupier will fulfil their duty to a trespasser by taking reasonable steps to:

  • give a warning of the specific danger
  • discourage people from taking a risk in relation to danger
    Tomlinson v Congleton Borough council is an example where warning was used to good effect

Volenti non fit injura (consent) s1(6):
no duty of care owed to someone who willingly accepts the risk of known danger