Occupiers liability 1957 act:

• An occupier of a premises owes a duty of care to lawful visitors and if that duty is breached and the visitor is injured, the visitor is entitled to receive compensation.  
•  Definition - Lawful Visitor  Potential defendants are occupiers of the premises who may be, but do not have to be, the owner or tenant of the property.   No statutory definition of occupier.   The test for this is found in case law and often depends on who is in control of the premises. A decision of who is in control of the premises may be based on who has insurance on the building.  However, sometimes courts will find that no one is in control of the premises. 
• Lord Denning: '"In light of these cases, I ask myself whether the brewery company had a sufficient degree of control over the premises to put them under a duty to a visitor. Obviously they had complete control over the ground floor and were 'occupiers' of it. But I think that they also had sufficient control over the private portion. They had not let it out to Mr Richardson (second D) by a demise."'
• Relevant case law for what a premise is:

   Wheat v E Lacon & Co (1966) – there can be more than one occupier of the premises.    Harris v Birkenhead Corporation (1976) - Who is in control of the premises?   Bailey v Armes (1999) – sufficient control of the premises. 
• Premises:

   No full statutory definition of the word ‘premises’    In s 1(3) (a) of the 1957 Act, there is a reference to a person having occupation or control of ‘any fixed or moveable structure including any vessel, vehicle or aircraft’   

  Things that have been considered a premises includes:  House, office, buildings, land, ship in a dry dock, a vehicle, a lift, a ladder! 
• Lawful visitors include:

   Invitees – persons who have been invited to enter the premises and who have express permission to be there.   Licensees – persons who have express or implied permission to be on the premises for a specific period and purpose.  (In Lowery v Walker (1911) a license to be on land was implied through repeat use by a trespasser which the defendant had not stopped).   

  Contractual permission to be on the premises – for example someone who has bought a ticket to a game or concert.   Statutory right – meter readers or the police exercising a warrant.  
• Exceeding permission they have been granted:
• Adult visitors:

   An adult visitor lawfully on a premises is owed a common duty of care.    S 2(2) this means the occupier should:   “take such care as in all circumstances…is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited.”  The occupier does not have to make the visitor completely safe in the premises – only do what is reasonable. Laverton v Kiapasha Takeaway Supreme (2002) and Dean and Chapter of Rochester Cathedral v Debell (2016) 
• Children - Section 2(3) (A):

   The occupier will owe a duty of care to children coming onto the premises, but there is a special duty to child visitors. 

  “Must be prepared for children to be less careful than adults (and as a result) the premises must be reasonably safe for a child of that age”.

   Standard of care is measured subjectively, depending on the age of the child.

  The occupier must guard itself against any kind of allurement or attraction that places a child visitor at risk of harm. 
• Children cases:

   Glasgow Corporation v Taylor (1922) – berries an allurement.

   

   Phipps v Rochester Corporation (1955) – where the visitor is very young, courts reluctant to find the occupier liable, as the child should be supervised by a parent.

   

  Jolley v Sutton (2000) – no age limit set as to when that applies.  If an allurement exists, there will be no liability if the damage caused was not foreseeable.
• Skilled visitors or Rescuers S2(3) (B):

   The occupier owes a duty of care to workers coming onto the premises to carry out repairs to the property or anything on it.

  However, under s 2 (3)(b) an occupier can expect that a tradesperson ‘in the exercise of their calling’ will:

  “appreciate and guard against any special risks originally incident to it, so far as the occupier leaves him free to do so”.

  The occupier will not be liable where it is expected that workers should guard themselves against risks.
• Independent contractors - Section 2(4)(b)


  If a lawful visitor is injured by the negligent work of a workman engaged by the occupier, the occupier may have a defence and be able to pass the claim onto the workman
• Three requirements that must be satisfied

  • It must be reasonable for the occupier to have given the work to the independent contractor
  • The contractor who is hired must be competent to carry out the task
  • Occupier must check that the work has been properly done
• Reasonableness of occupier giving work to independent contractor

  • The more specialist and complicated the work, the more likely it is that the occupier will have given it to another
• Competence of hired contractor

  • The occupier should check references and make sure they carry insurance as not being insured could indicate that the contractor is not competent
• Occupier checking work has been properly done

  • The more complicated the work, and the less expert the occupier, the more likely it will be that the occupier will need to employ another
• Cases

  • Hazeldine v Daw & Son Ltd (1941)
  • Bottomley v Todmorden Cricket Club (2003)
  • Woodward v Mayor of Hastings (1945)
• If all three stages are satisfied:

  • The occupier will have a defence to a claim ​
  • The injured claimant will have to claim directly against the contractor ​

  Ferguson v Welsh (1987) – held by the House of Lords that an occupier would not be liable for the unsafe system of work of a sub-contractor, since it could not be reasonably expected to supervise it.  (Would be different if the occupier knew of an unsafe system in place). 
• Volenti


  A defence where the defendant has to show the claimant knew of the precise risk involved, exercised free choice, and voluntarily accepted the risk
• To succeed the defendant has to show

  1. The claimant knew of the precise risk involved

  2. The claimant exercised free choice

  3. The claimant voluntarily accepted the risk
• It will not apply if the claimant knows of the existence of a risk or ought to have known
• The claimant must fully understand the nature of the actual risk
• Where a person has a duty to act (rescue services) and is then injured by the defendant's negligence, volenti will not be available as a defence
• The claimant in these cases has no choice but to consent
• Haynes v Harwood (1935)


  • Policeman had been injured acting under a duty to protect the public, defence of volenti failed
• • There are limited defences that can be put forward in a tort claim.  ​
  • ​Volenti non fit injuria – an injury cannot be done to one who consents to the risk.​
  • ​Volenti = Consent ​
  • ​Is a full defence to a claim of negligence and occupier’s liability.  ​
  • The defendant must show that the claimant voluntarily accepted a risk of harm or injury.   ​
  • ​If successful, the claimant will receive no compensation.  
• Contributory negligence

  Partial defence - the occupier will argue that the claimant is partly responsible for the injuries they have suffered whilst on the premises. If it is successfully argued then the amount of compensation will be reduced by an appropriate amount.
• Law Reform (Contributory Negligence Act) 1945

  1. The judgement will set out the full amount of the damages if there was no contributory negligence

  2. The judge will then decide the percentage that the claimant is responsible for
• Contributory negligence defence

  • Not required to show a duty of care existed - but that the claimant failed to take appropriate care in the situation
  • Causation is necessary - the claimant's act or omission helped to cause the injuries suffered
• Exclusion clauses:

  • S 2(1) of the 1957 Act, an occupier is able to: ​
  • ​“restrict, modify or exclude his duty by agreement or otherwise”.  ​
  • ​This means that the occupier will in an oral or written warning be able to limit or exclude their liability for any injury caused to the visitor.  (Whether this would work against a child visitor depends on the age of the child and whether they are able to read the warning).  
• Section 6 Consumer Rights act 2015:

  • “a trader cannot by a consumer contract or a consumer notice exclude or restrict liability for death or personal injury resulting from negligence”.  ​
  • ​For example, if an exclusion clause was used in a notice in a shop, the clause cannot operate as a defence if a consumer is injured on the premises.
• Warning notices:

  • If there is a notice or sign warning of a danger, this can be a complete defence for the occupier.  A warning can be oral or written.  ​
  • ​S 2(4)(a) of the 1957Act, a warning is ineffective unless: ​
  • ​“In all of the circumstances it was enough to enable the visitor to be reasonably safe”.  ​
  • ​Rae v Mars (UK) (1990) – if premises are dangerous, the visitor should be given specific notice of the danger.  ​
  • Darby v National Trust (2001) – if danger obvious and visitor able to appreciate it, no warning is necessary