Liability to Lawful Visitors

• A lawful visitor who suffers damage due to the state of the Defendant’s

  premises may be able to claim for personal injury and property damage.
• The Occupiers’ Liability Act (OLA) 1957 states that an occupier of

  premises owes a common duty of care to all lawful visitors. According to

  s.2(2) this means:

  'to take such care as in all the circumstances is reasonable to

  keep the visitor reasonably safe for the purpose for which he

  [or she] is invited ... to be there.'
• Note it is the visitor, rather than the premises, which must be reasonably

  safe. For example, if an occupier invites a blind person to enter the

  premises, they must take extra care for that person’s safety than they would a sighted person.
• Another key point is that the visitor does not have to be completely safe – only reasonably safe. This is an objective test just like in ordinary negligence: did the occupier act as the reasonable person would have done to keep the visitor safe?
• An occupier is not required to maintain completely safe premises – visitors can be expected to take reasonable care for their own safety.
• A duty in respect of a specific risk cannot last forever, where there could be other causes of the damage.
• In addition to the common duty of care under s.2(2), the 1957 Occupiers’ Liability Act provides a special duty towards child visitors.
• Section 2(3)(a) OLA 1957 provides than an occupier must be prepared for children to be less careful than adults.
• A higher standard of care is owed to children because they are an

  especially vulnerable group. A child is less likely to appreciate risks an adult would and may even be attracted to the danger. In Jolley v Sutton LBC (2000), the Court pointed out that children typically show considerable ingenuity in finding ways to put themselves in danger, and said that this needed to be taken into account when assessing the precautions needed to keep them safe.
• An occupier is entitled to assume that very young children will be

  accompanied by someone looking after them, and that may reduce the

  standard of care expected from the occupier.
• An occupier will owe a professional visitor (tradesperson) coming onto the premises the common duty of care. However, s.2(3)(b) OLA 1957 provides that:

  'An occupier may expect that a person in the exercise of his trade will appreciate and guard against any special risks which they ought to know about through their work.'
• The effect is to lower the standard of care owed by an occupier to a

  tradesperson in respect of special risks associated with their job.

  For example, an occupier can expect an electrician to be aware of the risk of suffering an electric shock if he or she has not switched the current off before carrying out electrical work. However, if he or she fell down a flight of stairs because of a broken step, an occupier cannot rely on s.2(3)(b) because this is not a special risk an electrician can be expected to guard against.
• Defences - Independent contractors


  Where a visitor is injured due to a danger created by an independent

  contractor, the occupier has a defence under s.2(4)(b) OLA 1957, provided that 3 conditions are met:

  1. It was reasonable to hire a contractor;

  2. Reasonable precautions were taken to ensure the contractor

  was competent;

  3. If the nature of the work allows, reasonable checks were taken

  to inspect the work.
• Defences - Warning Signs 


  Section 2(4)(a) OLA 1957 provides that the occupiers’ liability is

  discharged if he or she gives effective warning of the danger. The warning must be sufficient to enable the visitor to be reasonably safe.
• Exclusion Clauses


  An exclusion clause may operate to restrict or prevent a duty from

  arising in the first place. Occupiers of residential properties can

  restrict liability for death, personal injury and property damage.

  However, the Consumer Rights Act 2015 prevents businesses from

  restricting liability for death or personal injury on their premises.
• Contributory negligence


  Courts will consider the degree of care a reasonable visitor can be expected to take for their own safety and may reduce compensation if the Claimant is partly responsible for his or her injuries. This is a partial defence.
• Consent (volenti)


  This is a complete defence which applies if the Claimant willingly accepted a risk of negligence on the part of the occupier.