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Occupiers Liability Notes

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Occupiers' Liability and Defences
Occupiers' Liability
Main source of law = Occupiers' Liability Act 1957 -
Before the OLA, the duties of an occupier at CL were cast to 4 kinds of person. Going highest to lowest degree of care, an occupier owed a duty to:



a person who entered in pursuance of a contract with him (e.g. hotel guest).
the "invitee" (a person who, without contract, entered on business of interest both to himself and the occupier).
the "licensee" (a person who entered without the occupier's express or implied permission but without any community of interest with the occupier).
the trespasser (rules governed by the OLA 1984).

Occupiers' Liability: Non-Trespassers
A. Scope of the OLA 1957
Act abolished invitee-licensee distinction  just "visitors" now.
Act only applies to contractual entrants if contract is silent about safety of the premises.
Rights of the trespasser are governed by the OLA 1984, not the OLA 1957.
s1(1) provides that the Act replaces the CL rules and regulates the duty owed to visitors "in respect of dangers due to the state of the premises or to things done or omitted to be done on them". However, s1(2) does not describe the 'activity duty' in the same way  activity duties should be imposed by ordinary principles of negligence.
s1(2) also states that 'occupier' and 'visitor' under the act mean the same as they did under the CL as 'occupier' and 'invitee/licensee'  Wheat v Lacon - 'occupier' = a person who has a sufficient degree of control over premises that lack of care may result in injury to a visitor
Act applies not only to land and buildings but also to fixed and movable structures, including vessels, vehicles and aircraft (s1(3)(a)).
Act covers both personal injury and property damage (s1(3)(b))  silent on whether if follows psychiatric injury, but s1(9) 1984 Act explicitly provides for psychological harm 
would be bizarre if 1957 Act did not have the same scope of protection, absent any contrary intention in the 1957 Act (which there is not).
Act does not affect the relationship of bailor and bailee.
B. Occupier
Wheat v Lacon - 'occupier' - test of occupational control

Lord Denning: "Wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an 'occupier' and the person coming lawfully there is his 'visitor': and the 'occupier' is under a duty to his 'visitor' to use reasonable care." 

Entire control not necessary
May be shared control - there may be 2+ 'occupiers'  each is under a duty to use care dependent on his degree of control  each is liable for breaches of duty causing injury, but each may have a claim to contribution from the other

C. Visitors
Visitor = a person to whom the occupier has given express or implied permission to enter
(incl. anyone with a right conferred by law (s(2(6)), e.g. firefighters attending a fire, but excl.
a person using a public or private right of way (s1(4)) - here the occupier is merely under a duty to not create dangers on the premises).
The onus of proving implied permission rests upon the person who claims it exists.

Most commonly = a person enters the premises to communicate with the occupier.
Occupier's conduct must imply that he has permitted entry (not merely tolerated it -
knowledge ≠ consent).

A person may exceed their permission. The duty owed to a visitor does not extend to:



anyone who is injured by going where he is expressly or impliedly warned by the occupier not to go anyone who goes to a part of the premises where no one would reasonably expect him to go anyone who uses the premises for purposes not permitted by the invitation anyone who stays on the premises after the occupier's permission has expired (the limitation of time must be clearly brought home to him)

… and in these cases the visitor becomes a trespasser. Where the occupier's negligence causes the visitor to take an involuntary step outside the permitted area, he remains a visitor (perhaps negligence is not even needed).
D. The Common Duty of Care (s2)
s2(1): "An occupier of premises owes the same duty, the 'common duty of care', to all his visitors"… except insofar as he is free to and does limit that duty by agreement or otherwise.-

No contract necessary, but if one exists it must be validly incorporated, subject to s2 Unfair Contract Terms Act 1977 (which applies to things done in the course of business or from the occupation of premises used for the business purpose of the occupier).
Where no contract is made, reasonable steps must have been taken to bring the exclusion of liability to the attention of the visitor (though he need not actually be aware of it).

s2(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."Tomlinson v Congleton BC (2003) - C was injured when he dived into the shallow water of a lake in D's country park. Notices forbade swimming (but same rules applied despite being a trespasser), and D was not held liable -because the risk was obvious to any sensible person  injury could not fairly be said to have been due to the state of the premises.
Hence, obvious natural features should not be taken as "the state of the premises", nor should D be liable if C chooses to use the premises (in good repair) to carry out some hazardous activity. Underlying question = was there something wrong with the premises, given the purposes for which the visitor was invited?
What is reasonable involves balancing benefits with risks and burdens (incl. both the restrictions directly imposed on the occupier and the restrictions that would be imposed on the majority of people in order to prevent the foolhardy encountering risks.

s2(3) points out two specific circumstances to be considered by the occupier in discharging his duty:
(a)

(b)

children will be less careful than adults
- Phipps v Rochester Corp (1955) - The occupier will have discharged his duty if the premises are reasonably safe for a child who is accompanied by the sort of guardian whom the occupier is in all the circumstances entitled to expect him to have with him.
a visitor will appreciate and guard against any special risks ordinarily incident to the exercise of his calling, so far as the occupier leaves him to do so.
- Bates v Parker (1953) - "[W]here a householder employs an independent contractor to do work… on his premises, the contractor must satisfy himself as to the safety or condition of that part of the premises on which he is to work".

s2(4) gives guidance on when the occupier can be said to have discharged his duty of care:
(a)
(b)

the occupier's warning of a danger does not absolve the occupier from liability,
unless it was enough to enable the visitor to be reasonably safe where the damage is caused by the faulty work of an independent contractor, the occupier is not (without more) responsible 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.
- Works with general rule: no vicarious liability for independent contractors.
- Roles v Nathan (1963) - "When a householder calls in a specialist to deal with a defective installation on his premises he can reasonably expect the specialist to appreciate and guard against dangers arising from the defect."
(Lord Denning)
- Ferguson v Welsh (1987) - this section covers liability from dangers created by a negligent act or omission by the contractor in the course of his work on the occupier's property

s2(5) states that an occupier has no obligation to a visitor who willingly accepts a risk (the defence of volenti non fit iniuria).

White v Blackmore (1972) - "No doubt the visitor takes on himself the risks inherent in motor racing, but he does not take on himself the risk of injury due to the defaults of the organisers. … [I]f the organisers fail to take reasonable precautions, they cannot excuse themselves from liability by invoking the doctrine of volenti non fit injuria: for the simple reason that the person injured or killed does not willingly accept the risks arising from their want of reasonable care."
s2(6): those who enter for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose (whether they have his permission or not).
NB: while the OLA does not expressly incorporate the Law Reform (Contributory
Negligence) Act 1945, the point is probably implicit.
E. The Effect of Contract on Occupiers' Liability to Third Parties s3(1): "Where an occupier of premises is bound by contract to permit persons who are strangers to the contract to enter or use the premises, the duty of care which he owes to
[strangers to the contract] as his visitors cannot be restricted or excluded by that contract,
but (subject to any provision of the contract to the contrary) shall include the duty to perform his obligations under the contract, whether undertaken for their protection or not,
in so far as those obligations go beyond the obligations otherwise involved in that duty."
In other words…
duty owed to strangers to contract = common DoC + extra precautions mentioned in contract
In some cases, visitors may also be able to rely on the Contracts (Rights of Third Parties) Act

1999. Also note that when the occupation is of a business nature, the Unfair Contract Terms
Act 1977 may apply.

Occupiers' Liability: Trespassers and other Non-Visitors
Original CL rule = occupier only liable if he deliberately intended to do harm, or did an act with reckless disregard of the presence of the trespasser  British Railways Board v Herrington (1972)
held that the occupier owed to the trespasser a "duty of common humanity". Then came…
Occupiers' Liability Act 1984 - applies to trespassers and other non-visitors.
s1(1) provides that the Act will determine whether a duty is owed by an occupier to a non-visitor 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 if there is a duty, what that duty is.
s1(3) - an occupier will owe a duty to a non-visitor if:
(a)
(b)

(c)

he is aware of the danger or has reasonable grounds to believe that it exists;
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 (in either case, whether the other has lawful authority for being in that vicinity or not); and the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection. a. Tomlinson v Congleton BC (2004) - not expected to offer protection where the dangers are perfectly obvious (danger of diving into shallow water in lake is obvious)
NB: "reasonable grounds" = actual knowledge of facts which would lead a reasonable person to be aware of the danger or the non-visitor's presence. Simple ignorance is insufficient.
s1(4) describes the duty - "the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned".

The nature or character of the trespass is very relevant in determining what the occupier may reasonably be expected to do, e.g. a warning is more likely to satisfy the duty towards trespassers than the duty towards visitors.

s1(5) - duty may in an appropriate case be discharged by giving a warning or discouraging persons from incurring the risk.
s1(6) - No duty is owed when the non-visitor willingly accepts a risk as his.

Presumably, White v Blackmore also applies here re: only willingly accepting the risks inherent in the activity/premises - not D's defaults

s1(6A) - Where s2(1) Countryside and Rights of Way Act 2000 applies in relation to access land, an occupier owes no duty of care in respect of (a) a risk resulting from the existence of any natural feature on the landscape, or any river, stream, ditch or pond whether or not a natural feature, and
(b) a risk of injury when passing over, under or through any wall, fence or gate, except by proper use of the gate or of a stile.

NB: The CRWA 2000 provides a general right of public access to open land for recreational purposes.
Occupier is still liable for dangers arising from anything done by the occupier with the intention or recklessness of creating the risk).

s1(8) - no liability for loss or damage to property for breach of a duty arising from this section
The Act is silent on exclusion of liability, though the occupier likely can exclude liability through an appropriate term or notice, although probably subject to the Unfair Contract Terms Act 1977 where applicable…

exclusion of liability due to death or personal injury is void due to s2(1) UCTA; exclusion of liability for other negligently caused loss must be reasonable (s2(2) UCTA)  must be s11 reasonable

Common law on duty owed to non-visitors:

The Act does not apply to damage to the trespasser's property  CL applies (duty of
"common humanity" (British Railways Board v Herrington (1972))), at least where there is also personal injury.
Revill v Newbery (1996) - CL governs claims against non-occupiers, assuming the nonoccupier is in the same position as an occupier: "a person other than an occupier owes a similar duty to the intruder" (Neill LJ, re: ex turpi causa).

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