Occupiers' Liability Flashcards
What is the scope of the Occupiers’ Liability Act 1957?
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).
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.
Loss Under the OLA 1957, a visitor can claim for both personal injury and property damage.
What is the duty of care under the Occupiers’ Liability Act 1957?
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.
What constitutes an occupier?
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.
Wheat is the most influential judgment in this area.
Key case: Wheat v Lacon [1966] AC 552
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. Lord Denning stated that: 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.
In Bailey v Armes (1999) EGCS 21, the Court of Appeal referred in their judgment to Salmond on the Law of Torts (10th ed.) and its helpful explanation of sufficient degree of control:
[…] 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.
Can there be multiple occupiers?
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.
Different occupiers may have responsibility for different parts of the premises or different dangers.
The claimant may be a visitor to one occupier and a trespasser to another.
In Ferguson v Welsh [1987] 1 WLR 1553 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.
What constitutes the premises?
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.
Who amounts to a visitor?
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.
What qualifies as express permission?
Area: 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. In Pearson v
Coleman Bros [1948] 2 KB 359, 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.
Time: 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.
Purpose: 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.
What constitutes implied permission?
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.
In Lowery v Walker [1911] AC 10 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. 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).
Lawful authority 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.
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.
What is the standard of care under the Occupiers’ Liability Act 1957?
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).
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.
What standard of care are children owed under OLA 1957?
Child visitors are owed a higher 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.
In Taylor v Glasgow City Council [1922] 1 AC 44, 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.
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.
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.
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.
What standard of care is owed people entering the premises under the exercise of their calling OLA 1957?
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.
Key case: Roles v Nathan (Trading as Manchester Assembly Rooms) [1963] 1
WLR 1117 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.
When will the standard of care be breached under OLA 1957?
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.
For example, in Tedstone v Bourne Leisure Ltd [2008] EWCA Civ 654 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.
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.
Can duty be discharged through warnings?
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.
In Roles v Nathan 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.
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. It is possible that a notice may have a dual effect. In addition to potentially acting to satisfy the
occupier’s duty by giving the claimant a warning of the danger, 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.’
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.
Can a duty be discharged through independent contractors?
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.
1) Hiring an independent contractor
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.
2) Selecting the independent contractor (taken steps to check competency)
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.
3) Supervising and checking the work was properly done.
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.
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.
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.
How do causation and remoteness operate under OLA 1957 and OLA 1984?
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.
Whilst some commentators use conventional methods to discuss causation and remoteness (the ‘but for’ test etc), the approach suggested here is that you do what the courts do, and assume causation and remoteness have been made out unless it appears to you that there are any particular issues with either that need closer examination. If you are considering
causation and remoteness, you should use the same legal principles that are used in
negligence claims.
