Occupier's liability

• Occupiers' Liability Act 1957


  Statute covering occupiers' liability
• Occupier


  Person who has control over the premises
• Visitor


  Person who has express or implied permission to enter the premises, or has a right to enter conferred by law
• Common duty of care

  Duty owed by an occupier to lawful visitors to take such care as is reasonable to see that the visitor will be reasonably safe in using the premises
• Occupiers' liability comes from both statute law and the common law
• The Occupiers Liability Act 1957 does not define who is the occupier, but it does state that the rules of common law shall apply
• Under the common law, a visitor is a person who has express or implied permission to enter the premises
• Under the Occupiers Liability Act 1957, persons who have a right to enter premises conferred by law are lawful visitors
• The Occupiers Liability Act 1957 imposes a common duty of care that is owed to lawful visitors
• Children do not form a special category on their own, but the Occupiers Liability Act 1957 s2(3)(a) states that occupiers must be prepared for children to be less careful than adults and as a result the premises must be reasonably safe for children of that age
• The occupier owes a tradesperson a common duty of care whilst on their premises, but the occupier will not be liable where tradespeople fail to guard against risks which they should know about or be expected to know
• If there is an independent contractor and the visitor is injured by their negligent work, the occupier could shift the liability onto the contractors (S2(4) of the 1957 Act)
• There are 3 requirements for the occupier to shift liability onto the contractor:

  
  

  1) Must be reasonable for the occupier to have given the work to the contractor

  2) The contractor must be competent and insured

  3) The occupier must check the work has been done properly
• The law on Occupiers' Liability may need reform based on the cases of Matthew Marsden, Kylie Grimes, and PC Richard Seymour
• Duty owed under Occupiers Liability Act 1984


  Differs from duty owed under Occupiers Liability Act 1957
• Occupier's liability


  Comes from both statute law and common law
• Occupier's liability involves liability to

  • Visitors
  • Persons other than visitors
• Key statutes


  • Occupiers Liability Act 1957 (covers visitors)
  • Occupiers Liability Act 1984 (covers persons other than visitors)
• Occupiers Liability Act 1984


  Concerns duty owed to persons other than visitors
• Person other than a visitor


  Often referred to as 'unlawful visitor' or trespasser
• Categories of occupier identified in Wheat v Lacon & Co (1966)


  • Landlord who lets premises (tenant is occupier)
  • Landlord who retains certain areas (landlord is occupier of those areas)
  • Owner who licenses use but reserves right of entry (owner remains occupier)
  • Owner when contractors are working on premises (owner generally remains occupier)
• Anybody classified as an occupier under Occupiers Liability Act 1957 is an occupier under Occupiers Liability Act 1984
• Test to determine occupier

  Occupational control - who has control over the premises?
• Common law was harsh towards trespassers including children
• Addie v Dumbreck [1929]

  No duty of care owed by occupiers to trespassers to ensure safety, only duty not to inflict harm wilfully
• British Railways Board v Herrington [1972]


  House of Lords held that a duty of care could be owed to trespassers, leading to introduction of Occupiers Liability Act 1984
• Statutory duty of care under Occupiers Liability Act 1984 s1(3)

  1. Occupier aware of danger or has reasonable grounds to believe it exists

  2. Occupier knows or has reasonable grounds to believe other is in vicinity of danger

  3. Risk is one against which occupier may reasonably be expected to offer protection
• Duty owed under Occupiers Liability Act 1984 s1(4)

  Take care as is reasonable in all circumstances to see that persons other than visitors are not injured on the premises by the danger concerned
• Lord Hoffman in Tomlinson v Congleton Borough Council [2003]: 'Parliament has made it clear that in the case of a lawful visitor, one starts from the assumption that there is a duty whereas in the case of a trespasser one starts from the assumption that there is none'
• Occupiers Liability Act 1957


  Duty of care owed to all visitors
• Occupiers Liability Act 1984


  Duty only owed if certain conditions met (e.g. occupier aware of danger)
• Tomlinson v Congleton Borough Council [2003]


  • Tomlinson ignored warning signs and dived into lake, breaking his neck. Council not liable under either Occupiers Liability Act 1957 or 1984
• Tomlinson may have been a visitor when he arrived but was a trespasser when he entered the water, so any claims had to be under Occupiers Liability Act 1984
• Although council aware of danger, they had introduced patrols and warning signs to stop swimming and diving
• House of Lords dismissed Tomlinson's claims, council not held liable