Occupiers Liability 57 Act Model Answer

• Prima facie, the defendant (D) (state name), may be liable under the Occupiers Liability Act 1957 (OLA), which deals with lawful visitors, for the injuries/damage sustained by the claimant (C) (state name). The OLA 1957 concerns liability owed for injury or damage arising from the state of the premises.
• Firstly it needs to be established whether D is an occupier. There is no statutory definition of an occupier, but it is broadly defined in common law. In Wheat v Lacon it was stated that anybody in possession or control of the land could be an occupier. It was also held in Harris v Birkenhead Corporation that there could be more than one occupier but in Bailey v Armes if no one is in control of the land then there is no occupier.
• Next it needs to be established whether it occurred on premises. Premises has a very wide definition, under s.1(3)(a) it states that; 'a person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft.' This means that premises include houses, offices and buildings as well as vehicles, lifts and ladders (Wheeler v Copas).
• Under s.2(1) of the OLA 1957, an occupier of premises owes a 'common duty of care' to all lawful visitors. Under s.1(2) of the OLA 1957, there are four types of lawful visitor: invitee (2.1(2)), licensee (s.1(2)), contractual permission (s.5(1)) and statutory rights of entry (s.2(6)).
• If a visitor fits into any of these four categories then the owner of the property owes them a common duty of care which 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'.
• In essence, this means that the owner has a duty of care to lawful visitors and should take reasonable care to protect them, making sure that they are 'reasonable safe' whilst on the premises for the purpose of the visit as long as they are there with permission.
• The scope of the common duty of care under s2(2) is that the occupier must take reasonable care to see that the visitor will be reasonably safe in using the premises for the purpose of their visit. The occupier must come up to the standard of a reasonable man, guarding against foreseeable risks if there is 'a real source of danger'. As illustrated in Laverton v Kiapasha Takeaway Supreme and Dean & Chapter of Rochester Cathedral v Debell an occupier is not expected to protect against 'trips, slips and falls' that are everyday occurrences and D could not prevent against.
• Additional rules would apply if the C was a child lawful visitor. Under s.2(3)(a) of the OLA 1957, 'an occupier has a higher and special duty of care owed to children and they must be prepared for children to be less careful than adults'.
• The basic acceptance is that a child is more at risk and that the standard of care is measure subjectively rather than objectively so may be higher or lower based on the age of the child; Moloney v Lambeth BC.
• If an occupier allows a child to enter the premises then the premises must be reasonably safe for a child of that age (Perry v Butlins Holiday World).
• The occupier will be liable if there is an allurement that could tempt, entice or attract children and must take extra care as a child may be attracted to the danger (Taylor v Glasgow Corporation). However, the mere existence of an allurement on its own is not sufficient grounds for liability (Liddle v Yorkshire CC), the occupier must be aware of it.
• The age of a child is important as an occupier is entitled to assume young children will be accompanied and should be supervised by parents (Phipps v Rochester Corporation).
• Finally, the damage or injury must be foreseeable. There is a broad view of foreseeable arm so that the occupier need not foresee the specific harm (Jolly v Sutton LBC).
• If the claimant is a skilled worker (expert/tradesman such as electricians), the occupier can expect that person to guard against any risks ordinarily incidental to his visit (exercise of his calling) (s2(3)(b). This means that an owner owes a duty of care to tradespeople but not for risks that the tradesperson should know about as part of their job as illustrated in Roles v Nathan.
• An occupier may have a defence under s2(4)(b) of the OLA 1957 if they can show that the defective state of the premises was due to any work done by an Independent Contractor (IC). An IC is someone employed to do a particular job or work on the occupier's property.
• The occupier will avoid liability if:

  1. it was reasonable for the occupier to give work to the IC (Haseldine v Daw & Son ltd)
  2. The occupier took steps to check the IC is competent (Bottomley v Todmorden Cricket Club)
  3. The occupier took reasonable steps to check the work had been done properly (Woodward v Mayor of Hastings)
• The occupier can argue for a reduction of damages under the Law Reform (Contributory Negligence) Act 1945 if the Claimant has 'contributed' to their own injuries in some way. If a lawful visitor fails to take reasonable care for their own safety, the Court may reduce the amount of damages they receive as a percentage, based on how liable they are for their own injuries; Sayers v Harlow Urban DC.
• An occupier has a complete defence using Volenti Non Fit Injuria under s.2(5) of the OLA 1957 if it is proven the C willingly accepted or consented to the risk (White Lion Hotel v James)
• The occupier may have a defence under s.2(4)(a) if they have used an effective warning sign. Warning signs are only effective to the extent they are capable of making the visitor reasonably safe. The warning sign must include enough information (Roles v Nathan) as a general warning is not enough (Rae v Mars). It must be clearly visible but there is no need to warn about an obvious risk (Darby v National Trust).
• Finally, under s.2(1) OLA 1957, the occupier can try and, 'exclude, restrict or modify his duty' by warnings or exclusion clauses but a subjective test is applied here so a written warning or clause will not be adequate for someone who is blind or cannot read English (such as a young child). Other legislation restricts the occupier's liability to exclude, such as s65 Consumer Rights Act 2015 where a business cannot exclude liability for death or personal injury to customers.
• In conclusion, the occupier is likely/not likely to be found liable in the circumstances and under s.1(3) of the OLA 1957, the claimant would be able to claim for damages for their (personal injuries/damage)