Occupier's Liability - Lawful Visitors

• Occupiers' liability is a branch of negligence. Whilst negligence is a common law tort created by judges, occupiers' liability has been created by statute.

  • Occupiers' Liability Act 1957 - an occupier of premises owes a duty of care to lawful visitors
  • Occupiers' Liability Act 1984 - an occupier owes a duty of care to trespassers.
• the main remedy for a successful claim is compensation for the injuries or damage suffered.
• Occupier's Liability comes in two forms:

  • Liability for Lawful Visitors - Occupier's Liability Act 1957
  • Liability for Trespassers - Occupier's Liability Act 1984
• Liability for Lawful Visitors - requirements:

  • D is an Occupier
  • It happened on premises
  • C was a Lawful Visitor
  • A common duty of care is owed
  • There are exceptions
• Liability for Tresspassers - requirements:

  • D is an Occupier
  • It happened on Premises
  • C was a Trespasser
  • A Duty of Care is owed in three circumstances
  • Property damage is not recoverable
• Defendant is an Occupier:

  • Potential D's are the same under either Act.
  • The occupiers of premises who may be:
  • owners or tenants of premises.
  • There is however no statutory definition of 'occupier' so we need to look to case law.
• Defendant is an Occupier:

  • Wheat 1966 - both the manager and his employers - so more than one person can be occupier
  • Harris 1976 - the local council who had control (even if not physically occupying)
  • The C/A decided that no one was in control of the premises and so the injured visitor was left with no claim
• It happened on Premises:

  • There is no full statutory definition of premises but what does s.1(3)(a) Occupiers Liability Act 1957?
  • Premises would apply to obligations of a person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft.
  • can include:
  • houses
  • offices
  • buildings
  • land
  • a ladder (Wheeler v Copas 1981)
• Occupier's Liability - we ask:

  1. Is D an occupier?
  2. Did the incident happen on D's 'premises'?
  3. Is C a lawful visitor or a trespasser?
• Lawful Visitors:

  • Adult lawful visitors are owed a common duty of care, lawful adult visitors:
  • Invitees - persons who have been invitied to enter and have express permission to be there such as customers in a shop - s.1(2).
  • Licensees - persons who may have express or impired permission to be on the land for a particular period - s.1(2).
  • Statutory Right - those with statutory right to enter such as meter readers or police officers exercising a warrant - s.2(6)
  • Contractual Permission - for example, a person who has bought an entry ticket for an event - s.5(1)
• Lawful Visitors:

  • In addition to this there is an implied licence at common law where a person is repeatedly allowed to trespass without being stopped. This requires:

  1. D's (occupiers) knowledge of the tresspass
  2. D's knowledge of the risk

  • Lowery v Walker (1911) confirmed this
• A common duty of care is owed:

  • 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 visitors will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there.
  • s.2 Occupiers Liability Act 1957
• A common duty of care is owed:

  • Laverton v Kiapasha Takeaway Supreme 2002
  • The court commented in this case that the safety of visitors to premises was not guaranteed and in this case that was not feasible as the shop had taken precautions and customers can be reasonably safe if they take reasonable care for their own safety.
• A common duty of care is owed:

  • The judgement in this case and later cases emphasises that the common duty of care imposes a futy on the occupier to keep the visitor reasonably safe, not necessarily to maintain compeltely safe premises.
  • However, it does not extend to liability for pure accidents and a duty in respect of a specific risk cannot last indefinitely where there could be other causes of the damage.
• The Exceptions:

  • There can be other rules for different types of lawful visitors. These apply where the person injured (claimant) is a child or tradesperson.
  • Children - s.2(3)(a) states occupiers should be prepared for children to be less careful than adults, especially with 'allurements'.
  • Tradesperson - s.2(3)(b) says occupiers can expect tradesmen to be aware of the ordinary risk involved in their work.
• The Exceptions - Children

  • Glasgow v Taylor = defendant's should be careful to protect children from allurements.
  • Phipps v Rochester = however defendant's can reasonably expect parents to watch out for young children.
  • Jolley v Sutton = if something is foreseeable as an allurement then D must protect against it.
• The Exceptions - Tradesperson:

  • Roles v Nathan = it can be expected that a chimney sweep (or member of any trade_ will be aware of the risks invovled in their work, so there is no need for D to protect against this.
  • Ogwo v Taylor = whilst rescuers are expected to be aware of the risk of injury in their job, this does not amount to consent for any amount of potential harm.
• The Exceptions:

  • There are also different rules where the injury has been caused by the actions of a third party who is an independent contractor.
  • This is almost like a defence where the defendant can pass liability onto the independent contractor and therefore avoid liability.
• The Exceptions - Independent Contractors:

  • s.2(4) states that is a visitor is injured due to the work of an independent contractor, the occupier is not liable as long as:

  1. It is reasonable to give the work to that contractor (e.g. a specialist)
  2. The contractor is competent (e.g. had references); and
  3. The work of the contractor is checked by the occupier
• The Exceptions:

  • Haseldine v Daw - Occupier here was not liable because it was reasonable to give specialist work on a lift to a contractor - so the contractor was responsible.
  • Bottomley v Todmorden - Here the cricket club was still liable and could not pass responibility onto those who did the fireworks as they had hired an amateur with no experience.
  • Woodwards v Hastings - here the school were still liable and not able to pass on responsibility as they had not adequately checked the work of the contractor.
• Defences:

  • There are two defences to a claim by a lawful visitor:
  • Contributory negligence
  • Consent (Volenti non fit injuria)
  • In addition to this there are other ways to avoid liability:
  • Warning notices
  • Exclusion clauses
• Defences:

  • These partial defences are applied in the same way as they are under negligence.
  • Contributory negligence
  • if the claimant is aprtly to blame for the injuries then the amount of compensation will be reduced.
  • Consent
  • If successfully argued D will not be liable and will not have to pay any damages
• Warning Signs:

  • If D has effectively warned visitors of potential dangers then this will act as a complete defence to a claim of offupiers' liability. The warning can be oral or written
  • s.2(4) OLA 1957
  • The warning will be ineffective unless: 'in all the circumstance it was enough to enable the visitor to be reasonably safe'
  • But what is sufficient?
  • It will depend on the facts in each case and will be decided by the judge on evidence.