Chapter 11: Occupiers’ liability

Question 1

1 Introduction to occupiers’ liability and the duty of care owed under the Occupiers’ Liability Act 1957

Answer 1

Occupiers’ liability is concerned with loss caused by the state or condition of premises or things done or omitted to be done during the occupation of such premises. It represents an extension to
the traditional rules of negligence although, unlike negligence, it is largely governed by statute. Occupiers’ liability is concerned with loss caused by the state or condition of premises or things
done or omitted to be done during the occupation of such premises. It represents an extension to the traditional rules of negligence although, unlike negligence, it is largely governed by statute.

The Occupiers’ Liability Act 1957 (OLA 1957) governs the duty owed by occupiers to visitors. The Occupiers’ Liability Act 1984 (OLA 1984) governs the duty owed by occupiers to non-visitors.

Note that acts exists alongside common-law.

Question 2

Chapter Summary

Answer 2

(a) Duty, breach, causation, remoteness and defences in relation to claims under the OLA 1957
(b) Duty, breach, causation, remoteness and defences in relation to claims under the OLA 1984
(c) The defendant’s ability to exclude or limit liability under the OLA 1957 and OLA 1984

Question 3

1.1 The scope of the Occupiers’ Liability Act 1957

Answer 3

This Act governs the duty owed by occupiers to visitors. It is generally accepted that this duty relates to the ‘state of premises’ rather than ‘an activity’ on the premises (in which case a general negligence claim would be more appropriate).

Question 4

Example

Answer 4

For example, in Tomlinson v Congleton BC [2004] 1 AC 46 the 18-year-old claimant dived into the shallow water of a lake. He hit his head and sustained a serious injury. The House of Lords held
that the risk of the claimant suffering injury had not arisen from any danger due to the state of the premises but from the claimant’s activity of diving into shallow water.

Question 5

Loss

Answer 5

Under the OLA 1957, a visitor can claim for both personal injury and property damage.

Question 6

1.2 Duty of care under the Occupiers’ Liability Act 1957

Answer 6

Section 2(1) OLA 1957 states that an occupier of premises owes the common duty of care to all their visitors. Section 2(2) OLA 1957 states that the common duty of care is a duty to take such care as is reasonable in all the circumstances to see that the visitor will be reasonably safe in using the premises for the purposes for which they were permitted by the occupier to be there. Note that
the duty is to keep the visitor reasonably safe rather than the premises

Question 7

Definitions and Terminology

Answer 7

Following s 2(1), there are three terms to understand before you can decide whether the statute
applies and whether a duty of care is owed:

(a) Occupier;
(b) Premises; and
(c) Visitor.
We will consider these three elements in turn.

Question 8

1.2.1 Occupier

Answer 8

The OLA 1957 imposes the duty on the occupier of the premises. Section 1(2) OLA 1957 states that an ‘occupier’ is the same as persons who would be an occupier under common law. We therefore look to case law for the definition of an occupier.

Occupier: An ‘occupier’ is someone who has a sufficient degree of control over the premises (Wheat v Lacon [1966] AC 552). In all cases, the question of sufficiency of control is one of
fact. Given the test is one of control, someone who is not the owner of the premises can still be the occupier.

Question 9

Key case: Wheat v Lacon [1966] AC 552

Answer 9

The defendants were owners of a pub. They granted the managers a licence to use the top floor of the premises for their private accommodation and to take in paying guests. The claimant and her husband were paying guests in the top floor premises. The husband was fatally injured while using the staircase which had a faulty handrail. He could not see this as the area had no lighting.
Who was the occupier of the stairs?

The owners and managers were occupiers and both owed a duty of care. In the event, neither were liable because the fatality was caused partly as a result of a light bulb having been removed
by a third party, over which the occupiers had no control, and there was no reason before the accident to consider that the handrail was dangerous.

Question 10

Lord Denning categorisation of occupiers

Answer 10

Wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then
he is an occupier.

In Wheat, Lord Denning divided ‘occupiers’ into four categories:

(a) If the landlord does not live on the property, the tenant is the occupier;
(b) If the landlord retains some part of the premises, eg common areas like stairways, they are
the occupier of those parts;
(c) If the landlord issues a licence, they remain an occupier (as in Wheat); and
(d) If the occupier employs an independent contractor, they generally remain responsible.

Question 11

Bailey v Armes (1999) EGCS 21,

Answer 11

[…] Generally speaking, liability […] is based on occupancy or control, not on ownership. The person responsible for the condition of the premises is he who is in actual possession of them for the time being, whether he is the owner or not, for it is he who has the immediate
supervision and control and the power of permitting or prohibiting the entry of other persons.

Question 12

Multiple occupiers

Answer 12

There may be more than one occupier of the premises, as in Wheat. Lord Denning stated that to be an occupier, it is not necessary for a person to have entire control over the premises or exclusive occupation. It is sufficient to have some degree of control which they may share with others. Lord Denning commented on independent contractors: the owner would still usually be regarded as sufficiently in control of the premises, but in addition, the independent contractor may also be in sufficient control of the place where they are working.

Question 13

Example: Ferguson v Welsh [1987] 1 WLR 1553

Answer 13

A council contracted with Mr Spence to demolish a building. The contract contained a clause prohibiting sub-contracting without the council’s
consent. Without consent, Mr Spence sub-contracted the work to the Welsh brothers. They, in turn, offered the claimant a job. Whilst carrying out the work, the claimant sustained serious
injuries. He sued Mr Spence, the Welsh brothers and the council. The House of Lords held that the claimant was a lawful visitor in relation to Mr Spence but a trespasser in relation to the Council.

Question 14

1.2.2 Premises

Answer 14

The term ‘premises’ does not just include land and buildings. A wide definition is given in s 1(3)(a)
OLA 1957. This definition is not conclusive but does include: ‘[…] any fixed or moveable structure,
including any vessel, vehicle or aircraft.’
For example, in Wheeler v Copas [1981] 3 All ER 405 the premises included a ladder.

Question 15

1.2.3 Visitors

Answer 15

The OLA 1957 provides that the occupier owes an automatic duty to their visitors, ie persons
lawfully on the property. Section 1(2) OLA 1957 states that:
[…] the persons who are to be treated as […] visitors are the same […] as the persons who would at common law be treated as […] invitees and licensees. Under common law, visitors are persons who have express or implied permission to be on the occupier’s premises. The OLA 1957 also makes it clear that visitors include those with lawful
authority and contractual permission to be on the premises. We will look at each of these categories in turn.

Question 16

Express permission

Answer 16

Those who have express permission to be on the premises are lawful visitors (eg guests as per Wheat). However, express permission (and implied permission) may be limited by notice in which case the visitor becomes a trespasser, eg ‘No Unauthorised Entry’. Such limitations can be made in three
ways:
(a) Area
(b) Time
(c) Purpose

Question 17

Area

Answer 17

An occupier might not owe a duty to a visitor if the visitor enters an area to which they are denied permission. Occupiers must be very clear as to the areas where visitors are denied access and the location of any sign must be appropriate.

Question 18

Pearson v Coleman Bros [1948] 2 KB 359,

Answer 18

A child found herself in the animal
enclosure at a circus where she was attacked by a lion. There were no signs indicating that this was a private area and she was therefore a visitor. In Darby v National Trust [2001] EWCA Civ 189 there was an inconspicuous sign in a car park saying there should
be no bathing in the pond. The car park was not next to the pond and there was a lot of other information on the sign. The court held that the defendant had not done enough to turn the
claimant into a trespasser.

Question 19

Time

Answer 19

In Stone v Taffe and Another [1974] 1 WLR 1575 the manager of a pub permitted a function to be held upstairs on the premises after licensing hours. At 1am a guest fell down the stairs and died. The guest was a visitor. An occupier can restrict entry by imposing a time limit (eg opening hours), but it must be made clear to the visitor.

Question 20

Purpose

Answer 20

If an invitee goes beyond the purpose they were invited onto the
premises for, they may become a trespasser. In Tomlinson v
Congleton [2003] UKHL 47 it was made clear to the claimant that the lake was to be used for canoeing, fishing and windsurfing only. By swimming in the lake, Mr. Tomlinson was a trespasser not a visitor.

Question 21

Implied permission

Answer 21

Permission exists because of an occupier’s behaviour. A postman has implied permission to be on
a person’s property if they have to walk up a garden path to deliver letters. This can be limited by notice.

Question 22

Examples: Lowery v Walker [1911] AC 10

Answer 22

The public used the defendant’s land as a shortcut for 35 years (the defendant was aware of this and took no action to prevent it). They were held to have an implied licence when one of them was attacked by a wild horse whilst walking across the land. Compare with Edwards v Railways Executive [1952] AC 737. A spot on the railway was used as a shortcut on a regular basis.

Question 23

Edwards v Railways Executive [1952] AC 737.

Answer 23

A spot on the railway was used as a
shortcut on a regular basis. The fence was repaired whenever it was reported to have been damaged. However, it would be repeatedly beaten down by people wishing to use the railway as a
shortcut. The fence was in good repair the day of the incident.

The claimant was a nine-year-old boy who went to get his ball which had gone through the fence. He was hit by a train. The court held that the claimant did not have implied permission as the defendant had taken reasonable
steps to prevent people using the railway as a shortcut (he was therefore a trespasser).

Question 24

Lawful authority

Answer 24

Under s 2(6) OLA 1957 some persons, such as police officers with a warrant or persons with a statutory right, like gas board officials, can enter the premises as lawful visitors with or without
permission ie they enter the premises to exercise a right conferred by law.

Question 25

Contractual authority

Answer 25

Under s 5(1) OLA 1957, if a person enters the premises under the terms of a contract with the occupier, there is, in the absence of express provision to the contrary, an implied term that the entrant is owed the common duty of care.

Question 26

Conclusion on duty of care

Answer 26

Once it has been determined that the claimant is a visitor, and that the defendant is an occupier of premises, the claimant will automatically be owed a duty of care under s 2(1) OLA 1957.

Question 27

1.3 Public and private rights of way

Answer 27

Ironically, those using a public right of way, eg a footpath, are not covered by either the OLA 1957 or OLA 1984 and are, therefore, reliant on the common law. However, those using a private right of way are covered by the OLA 1984 and not the OLA 1957 (though note the differences in terms of the duty of care owed). Those exercising their rights under the National Parks & Access to the Countryside Act 1949 are not regarded as visitors under the OLA 1957 but are owed a duty under the OLA 1984. Much of the law in this area has been codified in the Countryside and Rights of Way Act 2000 (the ‘right to roam’).

Question 28

1.4 Summary

Answer 28

* Occupiers’ liability is concerned with loss caused by the state of the premises. * The OLA 1957 governs the duty owed by occupiers to visitors. * The OLA 1984 governs the duty owed by occupiers to non-visitors. * Under the OLA 1957, a claimant can recover for personal injury and property damage. * Under the OLA 1957 a visitor is automatically owed a duty of care by the occupier of the premises. * An occupier is someone who has a sufficient degree of control over the premises. There can be multiple occupiers. * Premises are defined widely as any fixed or moveable structure. * A visitor is someone who is lawfully on the premises ie someone who has express permission, implied permission, lawful authority, and/or contractual permission. * Express and implied permission can be limited by area, time and/or purpose.

Question 29

2. Occupiers’ Liability Act 1957: Breach to defences 2.1.1 Standard of care

Answer 29

The occupier owes the visitor a duty to take reasonable care to see that the visitor will be reasonably safe in using the premises for the purposes for which they were permitted by the occupier to be there (s 2(2) OLA 1957). The standard of care is therefore that of the reasonable occupier and is an objective test (like in negligence).

Question 30

Visitors personal characteristics

Answer 30

A visitor might have personal characteristics which affect the standard of care owed. Where the occupier is aware of a vulnerability of the visitor, they can reasonably be expected to take steps to guard against it. In Pollock v Cahill [2015] EWHC 2260 (QB) the blind claimant visited his friend and fell out of an open window on the second floor, suffering serious injuries. The court held that the occupier must have regard to any known vulnerability. The fact the claimant was blind made the open window unsafe. The defendant should have warned the claimant or kept the window closed.

Question 31

Standard of care and child visitors

Answer 31

Child visitors are owed a higher standard of care under the OLA 1957. Persons entering premises in the exercise of their calling (to exercise their skills) are owed a lower standard of care under the OLA 1957. Section 2(3)(a) OLA 1957 states that ‘an occupier must be prepared for children to be less careful than adults’. For example, children cannot be expected to appreciate dangers that would be obvious to adults, so more may be required of an occupier in relation to child visitors to keep them reasonably safe. This is particularly so where a danger is an allurement to a child.

Question 32

Example: Taylor v Glasgow City Council [1922] 1 AC 44

Answer 32

A child of seven died after eating poisonous berries from a bush on the defendant’s premises. Liability was established – the defendant knew the berries were poisonous, but took no action to warn children of the danger nor to prevent children from picking them. The court held that the bush was an allurement to children, and as such should have been fenced off. Of course, the standard of care would have been lower if the visitor had been an adult, as an adult should be aware of the dangers of red berries and as such the defendant would not have been in breach of duty.

Question 33

Key case: Jolley v Sutton LBC [2000] 1 WLR 1082

Answer 33

In Jolley v Sutton LBC [2000] 1 WLR 1082. A boat was left abandoned for over two years on land owned by the defendant council. The boat appeared sound but was completely rotten. The claimant, then aged 14, started to repair the boat, using a car jack and some wood to prop it up. While they were working on the boat it fell off the prop, crushing the claimant, who suffered serious spinal injuries resulting in paraplegia. He brought an action against the council for damages in breach of statutory duty under the OLA 1957. The court held the council liable – the boat was an allurement to children. If it is reasonably foreseeable to an occupier that a child may be attracted to an object on their premises that could be dangerous if meddled with (meaning the child’s actions and injuries are foreseeable), it is reasonable to expect the occupier to take reasonable steps to ensure the premises are safe.

Question 34

Reliance on Supervisory Roles

Answer 34

The usefulness of s 2(3)(a) OLA 1957 has been rather diminished by the courts sometimes finding that an occupier is entitled to rely upon the supervisory role of parents in relation to young children.

Question 35

Key case: Phipps v Rochester Corporation [1955] 1 QB 450

Answer 35

In Phipps v Rochester Corporation [1955] 1 QB 450 it was held that where reasonable an occupier is entitled to assume that a child will be subject to parental care. The claimant, who was five, went ‘blackberrying’ with his sister. They walked across a large area of land that was part of a housing estate being developed by the defendants. The claimant fell down a trench that had been dug by an employee of the defendants. The trench would have been obvious to an adult. It was held that prudent parents would not have allowed a young child to walk across the area in question and, therefore, the defendants were entitled to assume that children would not come onto the premises alone (because their parents would stop them) or if they did come onto the premises, they would be accompanied by an adult. The defendants therefore satisfied their duty of care to the very young child as they made their premises reasonably safe for a child accompanied by an adult, and the defendants were entitled to expect an adult would be accompanying the child.

Question 36

Standard of care and persons entering premises in the exercise of their calling

Answer 36

Section 2(3)(b) states that an occupier can reasonably expect a visitor coming onto their premises to exercise their skills, to appreciate and guard against any risks ordinarily incidental to it. Therefore, less is expected of occupiers in relation to skilled visitors. An occupier does not have to take care to protect someone against risks normally incidental to their job which they can be expected to have guarded against.

Question 37

Key case: Roles v Nathan (Trading as Manchester Assembly Rooms) [1963] 1 WLR 1117

Answer 37

In Roles v Nathan (Trading as Manchester Assembly Rooms) [1963] 1 WLR 1117, chimney sweeps were called in by the defendant to come and clean out the flues of an old boiler. They tried to do their work on the chimney and flues without extinguishing the boiler. They were found dead in the chimney the next day having been killed by carbon monoxide gas. There was no liability as this was a normal risk that the sweeps should have protected against. The sweeps should have known how to avoid this danger as it was connected to their work and training. Ironically, the occupier had actually warned them of the risks before they started the job.

Question 38

2.1.2 Has the defendant fallen below the standard of care?

Answer 38

The test is the same as used in a negligence claim, eg likelihood of harm, magnitude of harm, the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors are balanced against one another.

Question 39

Example: Tedstone v Bourne Leisure Ltd [2008] EWCA Civ 654

Answer 39

A woman slipped on a small patch of water on her way from the jacuzzi to the swimming pool. The defendant had taken reasonable care to ensure she was reasonably safe; regular inspections were carried out and the patch of water had not been there long. A reasonable occupier would not have done more. The courts will take into account the resources available to the occupier when considering what reasonable steps might have been taken.

Question 40

Key case: Laverton v Kiapasha [2002] EWCA Civ 1656

Answer 40

In Laverton v Kiapasha [2002] EWCA Civ 1656 it had been raining and the defendant’s takeaway shop floor was wet. The claimant slipped over and broke her ankle. The defendant had done all that could reasonably be expected of them – they had slip-resistant tiles, a doormat to limit the water brought in on the feet of customers and a system of mopping up water six or seven times a night. More might have been expected from larger businesses, for example, mats large enough to absorb moisture from a large number of customers and a staff member stationed near the door to mop up as required.

Question 41

Discharging duty through warnings

Answer 41

Common duty of care: An occupier will satisfy the common duty of care if they warn the visitor of the danger and the warning was enough to enable the visitor to be reasonably safe (s 2(4)(a) OLA 1957). Where there is adequate warning of any danger, written, visual or oral, eg ‘Danger Keep Out – Lift Shaft’, the occupier may have discharged their duty. The warning should make the visitor aware of what the danger is, where it is and how to avoid it. This will be a question of fact in each case. It will depend upon what the particular danger was and upon the scope, content and form of the warning.

Question 42

Example: Roles v Nathan

Answer 42

Another reason for denying liability was that the occupier had warned the sweeps of the danger of fumes and to make sure they extinguished the boiler before commencing work. He even physically removed the sweeps from the chimney at one point because they had not put out the boiler! These warnings were enough to keep the sweeps reasonably safe.

Question 43

Very Obvious Dangers

Answer 43

Very obvious dangers may not require warnings. For example, in Staples v West Dorset District Council [1995] PIQR P439, where the claimant slipped on a sea wall which was covered in algae and was, therefore, obviously slippery.

Question 44

Dual Effect of Notice

Answer 44

1) Potentially acting to satisfy the occupier’s duty by giving the claimant a warning of the danger 2) It may also operate as an exclusion notice You would then have to consider both potential effects of such a notice. For example, the following notice could act as both a warning and/or an exclusion notice: ‘These stairs are very dangerous, please take care. Under no circumstances will the occupier be liable for any injury caused to those using the stairs.’

Question 45

Fonts

Answer 45

The wording in italics may operate as a warning, and the visitor might be unable to prove breach. However, the wording in bold may operate as an exclusion notice which may operate as a potential defence to a claim once the visitor has established breach.

Question 46

Discharging duty through independent contractors

Answer 46

As a general rule, the duty owed by an occupier to a visitor is non-delegable. However, where building, construction, repair or renovation is carried out by an independent contractor, and the claimant suffers loss as a result of the fault of the contractor, the occupier may escape liability if they satisfy the three requirements in s 2(4)(b) OLA 1957.

Question 47

Elements required under s 2(4)(b) OLA 1957 Hiring an independent contractor

Answer 47

It must be shown that it was reasonable to use an independent contractor. The more technical the work, the more reasonable this would be. It would be rare to find the occupier had acted unreasonably here.

Question 48

Selecting the independent contractor (taken steps to check competency)

Answer 48

Was it reasonable to choose the independent contractor in question, eg checked qualifications, experience, references, made enquiries locally and of Trade Associations etc? The duty on a private householder to check the competence of an independent contractor is less than, say, the duty on a local authority.

Question 49

Supervising and checking the work was properly done.

Answer 49

As far as supervising and checking the work is concerned, the occupier can only do what is reasonable. What can be expected of them will, therefore, depend upon the nature of the work in question. Compare and contrast the two cases below.

Question 50

Key case: Haseldine v Daw [1941] 2 KB 343

Answer 50

In Haseldine v Daw [1941] 2 KB 343 the claimant visited a block of flats owned by the defendant in order to see one of the tenants. He was injured when the lift plummeted to the basement. The dropping of the lift was caused by the negligence of the highly reputable lift engineers. It was held that the defendant had no responsibility as the work was technical and, therefore, reasonably entrusted to contractors; they were a competent firm; and the defendant, having no technical knowledge, could not be reasonably expected to carry out any checks on the machinery

Question 51

Contrast with Woodward v Mayor of Hastings [1945] KB 174

Answer 51

Haseldine can be contrasted with the case of Woodward v Mayor of Hastings [1945] KB 174 in which a pupil at the defendant’s school fell and injured himself on an icy step. The step had been left in a dangerous condition by a cleaner. There was no technical knowledge required to recognise that an icy step was dangerous and, therefore, the defendant was able to and should have checked and supervised the contractor in question. By not checking the contractor’s work, the occupier had not discharged their duty.

Question 52

2.2 Causation and remoteness

Answer 52

There is nothing in the OLA 1957 setting out how causation or remoteness should be tackled. Looking to the common law, the authorities have tended to focus their energy mainly on breach (and damage and defences). In other words, once loss has been suffered by the claimant and once the defendant has breached their duty to that claimant, then there is an assumption that causation and remoteness have been satisfied. Courts have only tended to discuss causation or remoteness where there are glaring issues with either.

Question 53

2.3 Defences 2.3.1 Volenti/consent

Answer 53

Section 2(5) OLA 1957 provides for the defence of volenti; see the legal test for this defence in the chapter on ‘Defences’. The claimant must be fully aware of the particular risk and through their conduct willingly accept the risk.

Question 54

Examples: White v Blackmore [1972] 2 QB 651

Answer 54

The claimant spectator was at a car rally. Notices on the site stated that there was danger. When standing behind the rope barrier, a wheel from one of the vehicles caught the rope, released it and catapulted the claimant 20 yards thereby killing him. Volenti did not apply as the claimant was not fully aware of the particular risk caused by the inadequate barrier. In Titchener v British Railway Board [1983] 1 WLR 1427 a 15-year-old consented to the risk when she walked through a gap in the fence onto a live railway line.

Question 55

2.3.2 Contributory negligence

Answer 55

Section 2(3) OLA 1957 provides that in determining the common duty of care ‘the degree of care, and of want of care, which would ordinarily be looked for in such a visitor’ is taken into account. The courts have interpreted this as providing for the defence of contributory negligence. See legal test for this defence in previous chapter on ‘Defences’.

Question 56

Example

Answer 56

In Young v Kent CC [2005] EWHC 1342 (QB) a 12-year-old’s damages were reduced by 50% for contributory negligence. The claimant was jumping on, and fell through, a brittle skylight. However, note that the claimant was a trespasser not a visitor.

Question 57

2.3.3 Illegality

Answer 57

Illegality can be relied upon as a defence to an occupier’s liability claim. See the chapter on defences for an explanation of how to apply the test for illegality.

Question 58

2.5 Summary

Answer 58

* An occupier owes a duty to take reasonable care to see that the visitor will be reasonably safe in using the premises for the purposes for which they are invited or permitted by the occupier to be there. * A higher standard of care is owed to children and visitors with particular vulnerabilities. * A lower standard of care is owed to persons entering in the exercise of a calling. * Negligence breach factors are used to analyse breach of duty. * An occupier will not be in breach if they warned the claimant of the danger and the warning was enough to enable the visitor to be reasonably safe. * An occupier will not be in breach if, where building, construction, repair or renovation is carried out by an independent contractor, they acted reasonably in entrusting the work to the independent contractor. * The defences available are volenti and contributory negligence and illegality.

Question 59

3. Occupiers’ Liability Act 1984

Answer 59

If certain conditions are satisfied, the Occupiers’ Liability Act 1984 imposes a duty upon the occupier to take reasonable care to see that trespassers do not suffer injury on their premises by reason of the danger concerned. Why do you think the law has provided such protection for trespassers? Under what circumstances do you consider it ‘fair’ for trespassers to have such protection?

Question 60

3.1 Introduction to Occupiers’ Liability Act 1984 (Non-Visitors)

Answer 60

The OLA 1984 governs the duty owed by occupiers to non-visitors. Loss The occupier is only liable for physical injury, including disease and any impairment of either a person’s physical or mental condition (s 1(1)(a) and 1(9) OLA 1984). Property damage is not recoverable (s 1(8) OLA 1984). Occupier The ‘occupier’ is defined in the same way as under the OLA 1957. Section 1(2)(a) OLA 1984 states that ‘persons who are to be treated […] as an occupier […] are any person who owes […] the duty referred to in section 2 of the Occupiers’ Liability Act 1957’. Premises Premises are defined in the same way as under the OLA 1957. Section 1(2) OLA 1984 states that premises ‘include any fixed or moveable structure’.

Question 61

3.1.1 Definition of trespasser/non-visitor Key case: Robert Addie & Son (Collieries) Ltd v Dumbreck [1929] AC 358

Answer 61

In Robert Addie & Son (Collieries) Ltd v Dumbreck [1929] AC 358 a trespasser was defined as: He who goes on to the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to. The colliery company were aware of this fact and warned children out of the area from time to time, but their warnings were disregarded. The wheel itself was inadequately protected and was attractive to children. The boy was regarded as a trespasser and as such his father had no remedy in law for his loss Even though the definition of trespasser remains unchanged, the law has moved on since this case. Under the OLA 1984, a similar situation decided today would probably have afforded the boy some protection.

Question 62

3.2 Duty of care (no automatic duty of care is owed)

Answer 62

The occupier will owe a duty if: (a) They are aware of the danger or have reasonable grounds to believe that it exists; (b) They know or have reasonable grounds to believe that the other is in the vicinity of the danger concerned or that they may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and (c) The risk is one against which, in all the circumstances, they may reasonably be expected to offer the other some protection.

Question 63

3.2.1 Aware of danger (s 1(3)(a) OLA 1984) (Reasonable Grounds)

Answer 63

The occupier must be aware of the danger or have reasonable grounds to believe it exists. ‘Reasonable grounds’ requires actual knowledge of facts which would lead a reasonable occupier to be aware of the danger.

Question 64

Key case: Rhind v Astbury Water Park Ltd [2004] EWCA Civ 756

Answer 64

In Rhind v Astbury Water Park Ltd [2004] EWCA Civ 756 the claimant dived into a lake and suffered head injuries when he hit his head on a fibreglass container. The container was not visible from the surface and therefore the defendants had no knowledge, nor reasonable grounds for them to believe, that the container was there. No duty was owed.

Question 65

3.2.2 Knowledge that the other is in the vicinity (s 1(3)(b) OLA 1984)

Answer 65

The occupier must know, or have reasonable grounds to believe, that someone is in the vicinity or may come into the vicinity of the danger. The defendant must also know (or have reasonable grounds to believe) that someone is in the vicinity of the danger at the time of the accident.

Question 66

Key case: Donoghue v Folkestone Properties Ltd [2003] QB 1008

Answer 66

In Donoghue v Folkestone Properties Ltd [2003] QB 1008 the claimant suffered injuries when diving into the defendant’s harbour. No duty was owed as although the defendant was aware people swam in the harbour during the summer, they were not aware that people would be swimming at night in midwinter.

Question 67

Swain v Natui Ram Puri [1996] PIQR P442

Answer 67

In Swain v Natui Ram Puri [1996] PIQR P442 the court held that the defendant must have actual knowledge either of the claimant’s presence in the vicinity of the danger or of facts which would create a reasonable belief that there was another likely to be present.

Question 68

3.2.3 Reasonable to protect trespasser against the risk (s 1(3)(c) OLA 1984)

Answer 68

The risk must be one which, in all the circumstances, it is reasonable for the occupier to protect the trespasser from. Analysis here is similar to that carried out under breach, balancing the costs of requiring the occupier to make the premises safer against the foreseeability and seriousness of injury. Was the danger obvious or hidden? Was there a risk of serious or minor injury? Is the trespasser a child or adult, and did they know they were trespassing? Normally if the claimant freely chooses to engage in an activity that carries an inherent risk, no duty will be owed. Occupiers are not expected to protect trespassers from obvious risks or selfinflicted harm unless there was no genuine and informed choice by the claimant, for example, where the claimant was an employee or lacked capacity such as a child who was unable to appreciate the danger (Tomlinson v Congleton Borough Council [2003] 3 All ER 1122).

Question 69

3.3 Breach under the OLA 1984

Answer 69

Section 1(4) OLA 1984 imposes a duty upon the occupier to take such care as is reasonable in all the circumstances to see that the entrant does not suffer injury on the premises by reason of the danger concerned. The standard of care is therefore that of a reasonable occupier. When deciding what amounts to reasonable care, as with the OLA 1957, the courts will weigh up the negligence breach factors

Question 70

Factors relevant to breach

Answer 70

* The nature of the danger (hidden or obvious and degree of danger) * Whether the claimant was a child or adult * The nature of the premises (how dangerous were they eg building site) * Purpose of claimant (eg was the claimant a burglar or trespassing by accident) * Whether the occupier could or should have foreseen trespassing (eg were the occupiers aware that people were trespassing and, if so, what measures were taken to prevent this. The more likely trespass was, the more precautions should have been taken). Ultimate focus on claimant as a non-visitor

Question 71

Case examples of analysis of breach Swain v Natui Ram Puri [1996] PIQR P442

Answer 71

The defendant erected a seven foot-fence topped with barbed wire around their factory. There was a small section of the fence where barbed wire was missing, and the nine-year-old claimant entered the premises. He used a ladder to climb onto the roof and fell through a skylight, sustaining serious injuries. There was no breach by the defendant as they erected the fence which was evidence of reasonable steps to protect against the danger of individuals falling through the roof and there was no evidence of previous trespass. (No duty was owed as the factory was defunct, the defendant had not seen any children in the area and there had been no signs of trespass.)

Question 72

Young v Kent County Council [2005] EWHC 1342

Answer 72

In contrast to Swain, the defendant council were liable for the claimant’s injury as children climbing on a school roof was a known risk which they had failed to protect against, despite there being a low-cost solution (fencing it off). There had been a Health and Safety Executive report on the skylight that had indicated that it was brittle.

Question 73

3.3.1 Warning notices

Answer 73

Section 1(5) OLA 1984 provides that the duty may be satisfied if the occupier takes all reasonable steps ‘to give warning of the danger concerned or to discourage persons from incurring the risk’. It is easier to satisfy the duty under the OLA 1984 than the OLA 1957 by giving a warning (under the OLA 1984 the defendant just needs to take reasonable steps to bring the danger to the claimant’s attention). A notice will satisfy the occupier’s duty if it sufficiently discourages the claimant from trespassing. It will be harder to discharge the duty with a notice where the claimant is a child as they may be too young to read or fully appreciate the danger.

Question 74

Example

Answer 74

In Titchener v British Railway Board [1983] 1 WLR 1427 the fences constructed by the railway company were sufficient warnings. Physical barriers can be enough to discourage trespassers from taking the risk.

Question 75

3.4 Causation and remoteness

Answer 75

As with the OLA 1957, there is nothing in the OLA 1984 dealing with causation and remoteness. These elements should therefore be dealt with in the same way as under the OLA 1957.

Question 76

3.5 Defences

Answer 76

The defendant can argue the following defences in response to a claim under the OLA 1984: (a) Consent/volenti; and/or (b) Contributory negligence. (c) Illegality

Question 77

3.5.1 Consent/volenti Key case: Ratcliff v McConnell and Harper Adams College [1997] EWCA Civ 2

Answer 77

This defence is provided for under s 1(6) OLA 1984. The following case is a helpful OLA 1984 case in relation to breach and consent. In Ratcliff v McConnell and Harper Adams College [1997] EWCA Civ 2 a drunk student climbed over a locked gate to access the college’s swimming pool. There was a notice at the entrance stating that the pool would be locked, and use was prohibited from 10pm to 6:30am. There was a notice at the shallow end in red on a white background saying, ‘shallow end’. He dived in, broke his neck and was paralysed. No duty was owed and even if one existed, the defendants discharged this duty. The only incidence of trespass in the four years prior to the claimant’s injury related to students from a visiting college and therefore there was no reason for the college to suspect the students would come into the danger. By surrounding the pool with a seven-foot-high fence, a locked gate and warnings, the college had offered a reasonable level of protection.

Question 78

3.5.2 Contributory negligence

Answer 78

This partial defence is not provided for in the OLA 1984 but has been successfully relied upon by defendants. For example, in Young v Kent County Council [2005] EWHC 1342 the claimant was held contributory negligent and his damages were reduced by 50%. In Tomlinson v Congleton Borough Council [2003] 3 All ER 1122). although the Court of Appeal’s decision was overturned by the House of Lords who did not find the defendant liable, the Court of Appeal’s finding for the claimant had been subject to contributory negligence of two-thirds.

Question 79

3.5.3 Illegality

Answer 79

Illegality can be relied upon as a defence to an occupier’s liability claim. See the chapter on defences for an explanation of how to apply the test for illegality.

Question 80

3.7 Summary

Answer 80

* The OLA 1984 governs the duty owed by occupiers to non-visitors (trespassers). * Only personal injury is recoverable under the OLA 1984, not property damage. * A trespasser must satisfy the criteria set out in s 1(3)(a)-(c) OLA 1984 in order to prove that the occupier owed them a duty of care. * The standard of care expected of the occupier is to take reasonable care to see that the entrant does not suffer injury on the premises by reason of the danger concerned. * To analyse breach of duty under the OLA 1984 the courts might consider (where relevant): the negligence breach factors; age of claimant; nature of danger; nature of premises; purpose of claimant; foreseeability of trespassing; and whether a sufficient warning of the danger was given under s 1(5) OLA 1984. * Defences available under the OLA 1984 are consent, contributory negligence and illegality.

Question 81

4. Occupiers’ liability and exclusion clauses

Answer 81

A defendant to an occupiers’ liability claim had the following notice on their premises: ‘These stairs are very dangerous, please take care. Under no circumstances will the occupier be liable for any injury caused to those using the stairs.’ Part of this notice acts as a warning and part acts as an exclusion notice. ‘Under no circumstances will the occupier be liable for any injury caused to those using the stairs’ is an attempt at excluding liability under the OLA. This section will focus on the effect and validity of such exclusion notices.

Question 82

4.1 OLA 1957: Exclusion or limitation clauses

Answer 82

Section 2(1) OLA 1957 allows an occupier, in so far as they are free to do so, to extend, restrict, modify or exclude their duty to visitors. However, there are four restrictions on the occupier’s freedom to use an exclusion clause to exclude or lessen their liability to the visitor: (a) Section 3 OLA 1957; (b) Unfair Contract Terms Act 1977 (UCTA 1977); (c) Consumer Rights Act 2015 (CRA 2015); and (d) Common law.

Question 83

4.1.1 Section 3 OLA 1957

Answer 83

Section 3(1) states that where an occupier is bound by a contract to allow people who are strangers to the contract to enter or use the premises, the duty of care that the occupier owes those strangers as their visitors cannot be restricted or excluded by the contract. A stranger to the contract is defined as someone who is not entitled to the benefit of the contract, for example by not being a party or a successor (s 3(3) OLA 1957).

Question 84

Section 3(1) OLA 1957

Answer 84

The purpose of s 3(1) OLA 1957 is to protect employees of a person with whom the occupier has contracted. Therefore, if the occupier has contracted with X for X’s employees to do work on the occupier’s premises, the occupier may not restrict or exclude any liability to them under the OLA 1957. Furthermore, any term of the contract which obliges the occupier to increase the level of care shown to these employees will establish the standard of care to be shown.

Question 85

4.1.2 OLA 1957: Unfair Contract Terms Act 1977

Answer 85

UCTA 1977 restricts the use of exclusion clauses/notices to exclude or limit liability for negligence (which includes breach of duty under the OLA 1957). UCTA 1977 applies to ‘business to business’ liability, ie where the occupier is using the premises for business purposes and the person entering the premises is doing so in the exercise of a trade, business, craft or profession. In summary (the sections referred to below are from UCTA 1977): * Section 2(1): A person cannot exclude/restrict their liability for death or personal injury resulting from negligence. * Section 2(2): In relation to other loss , a person can exclude/restrict their liability for negligence if the term/notice satisfies the requirement of reasonableness. * Section 11: The ‘requirement of reasonableness’ means it should be fair and reasonable to allow reliance on the notice, having regard to all the circumstances at the time when the liability would have arisen. See Chapter on ‘Pure economic loss’ which explains the case of Smith v Bush [1990] UKHL 1 and the factors the court might take into account when deciding reasonableness.

Question 86

4.1.3 OLA 1957: Consumer Rights Act 2015

Answer 86

The CRA restricts the use of exclusion clauses/notices to exclude or limit liability for negligence (which includes breach of duty under the OLA 1957). The CRA 2015 applies where the defendant is acting as a trader (ie for purposes relating to their trade, business, craft or profession) and the claimant, as a consumer (ie for purposes wholly or mainly outside their trade, business, craft or profession). In summary (the sections referred to below are from the CRA 2015): * Section 65(1): A trader cannot exclude/restrict their liability for death or personal injury resulting from negligence. * Section 62(1) and (2): In relation to other loss , a trader can exclude/restrict their liability for negligence if the term/notice is fair * A term is unfair ‘if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer’ (s 62(4)). A similar clause exists in relation to notices (s 62(6) and (7)). Section 62(5) and Part 1, Schedule 2 provide further guidance on fairness.

Question 87

4.1.4 OLA 1957: Common law restrictions

Answer 87

If neither UCTA 1977 nor the CRA 2015 applies (eg the defendant is a private occupier), for any type of loss suffered by the claimant, such restrictions could be judged against the principle of ‘common humanity’ given in British Railway Board v Herrington [1972] AC 877. This represents the minimum legal standard of care which can never be excluded by agreement or notice. Would a conscientious person with the defendant’s knowledge, skill and resources be reasonably expected to have done something which would have helped to avoid the accident? If there was a substantial probability that the accident would happen, yet the cost/practicalities of making the premises safe were minimal then it might be unreasonable to exclude or restrict liability.

Question 88

4.2 OLA 1984: Exclusion or limitation clauses

Answer 88

The OLA 1984 is silent as to whether it is possible to exclude liability. There are two arguments: first that the OLA 1984 lays down a bare minimum that cannot be evaded; and second, that if this were the case, then it would be unfair as trespassers would be in a better position than lawful visitors, a situation clearly contrary to the policy of the OLA 1984. It is likely that the same common law restriction would apply as to the OLA 1957. However, the provisions of UCTA and the CRA would not apply.

Question 89

4.3 Summary

Answer 89

* Under the OLA 1957, exclusion/limitation clauses can be subject to: s 3 OLA 1957; UCTA 1977; CRA 2015; or common law restrictions. * Under UCTA 1977 business occupiers cannot exclude their liability for a non-consumer visitor’s death or personal injury. They may exclude liability for other loss if fair and reasonable to do so. * Under the CRA 2015, traders cannot exclude their liability for a consumer visitor’s death or personal injury but may exclude liability for other loss if the term or notice is fair. * The OLA 1984 is silent as to whether it is possible to exclude liability. It is possible that exclusion or limitation clauses will be subject to the common law restrictions that apply to the OLA 1957.