Occupiers liability Flashcards
What are the two statutes that relate to this area?
1) occupiers liability act 1957- relates to visitors
2) occupiers liability act 1984- relates to non visitors
How is the 57 act applied?
Under s2(1) of the OLA 1957, “An occupier of premises owes the same duty, the “common duty of care”, to all his visitors…”
So if you establish an occupier, premises and visitor, an automatic duty is owed by the occupier to the visitor. Note that a duty is owed in relation to personal injury and property damage. Consequential economic loss would also be recoverable.
Starting with occupier, an occupier is someone with a sufficient degree of control over the premises to justify the imposition of a duty. This is defined by common law in Wheat v Lacon, and there could be more than one occupier. For example, if independent contractors are working on the premises, they might be considered to be the occupier as well as say anyone living at the premises – both parties could be deemed to have a sufficient degree of control over the premises.
So once you have established who the occupier is, you need to establish if they are an occupier of premises (i.e. does whatever caused the claimant’s loss fall within the definition of premises). The definition in the statute is very broad and can be seen on the slide - any fixed or moveable structure, including any vessel, vehicle or aircraft (s.1(3)(a) of the OLA 1957).
You then need to establish that the claimant was a visitor.
S1(2) OLA 1957 states that persons treated as visitors under the statute are the same as persons who would be visitors at common law. So ‘visitor’ is defined via case law and needs to be someone with some sort of permission or authority to be there. There are five ways in which someone can be a visitor:
(1) Permission can be express (e.g. invite someone over for supper), but express permission can be limited. If you let someone onto your land, it can be on the basis of certain conditions, for example relating to area, time or purpose– so there might be conditions that they only go in certain areas, or that they leave by a certain time, or they are only allowed on the land for certain purposes. If the conditions are not complied with then there is no permission, and if there is no permission, the person isn’t a visitor. For example, if opening times are 8am to 5pm and someone is there after 5pm, they are most likely not a visitor.
(2) Permission can also be implied – for example, a postman has implied permission to be on a person’s property if they have to walk up the garden path to deliver letters. See other examples in your adapt material.
(3) Authority / permission can also come from a contractual provision between two parties (refer to s5(1)), or (4) from statute (refer to s.2(6)) – eg emergency services have certain powers to enter a property, and they will still be deemed visitors (rather than non-visitors) if they enter the property pursuant to that authority.
Adapt also explains (5) the doctrine of allurement, but it is no longer a very important doctrine since the introduction of the OLA 1984. Essentially children that would otherwise be classed as trespassers, are classed as visitors because children are seen as being allured onto certain dangerous premises and occupiers should be aware of this, and take necessary precautions.
how do you find a breach?
But just like in relation to negligence, duty is just the beginning of the analysis. The next step is to consider breach. And you probably remember that this has two stages – what is the standard of care the defendant is required to meet, and has the defendant fallen below it?
The section 2(2) OLA 1957 provides that: “The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.“ This can be seen as the standard of care – doing all that is reasonable to see that the visitor is reasonably safe.
There are a couple of things worth highlighting in relation to this.
Firstly, it is the visitor, not the premises that must be safe.
Secondly, it is an objective test – how well the defendant thought he or she was doing is not relevant.
Thirdly, the question of reasonableness is about keeping ‘the’ visitor safe, not some hypothetical or general visitor. So what ‘reasonable care’ might look like could change according to the characteristics of the visitor concerned. Where an occupier is aware of a particular vulnerability of the visitor, they can reasonably be expected to take steps to guard against it.
A higher standard of care is owed to children – because they must be expected to be less careful (s.2(3)(a) OLA 1957). So an occupier would have to do more to keep a child safe than they would an adult. However, less might be expected of occupiers in relation to skilled visitors, because you can expect them to guard against any special risks linked to their work (s.2(3)(b) OLA 1957). So, if an electrician comes to look at the electrics at my house, I could justifiably expect him or her to be aware of and protect themselves against typical dangers of working with electrics.
So that is standard of care.
When analysing whether the defendant has fallen below the standard of care (i.e. is in breach), the test is the same as that used in general negligence e.g. likelihood of harm, magnitude of harm, practicality of precautions, resources available to the defendant etc.
In addition, the court can take into account any warnings given by the defendant to the claimant. Under section 2(4)(a) of the OLA 1957 the defendant discharges their duty of care if the warning was enough to enable the visitor to be reasonably safe. For visitor’s, the warning needs to be clear as to what the danger is, where the danger is and how to avoid it.
Finally, where building, construction, repair or renovation is carried out by independent contractors, the occupier may escape liability if they acted reasonably in entrusting the work to the independent contractor – and the independent contractor could be liable instead. The authority for this is s.2(4)(b) OLA 1957, and the occupier must show that they acted reasonably in hiring an independent contractor, in selecting the independent contractor and in supervising and checking that the work was properly done.
Causation- assume causation and remoteness are made out, unless it appears to you there are particular issues
Defences: Consent, and contributory negligence are potentially available
What about the 1984 act (non visitors
Occupiers: Same as 57 act
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Premises: same as 57 act
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Non visitor- “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”
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Duty MIGHT BE owed (in relation to personal injury)
What is the duty of care under the 84 act
The occupier will owe a duty if they satisfy the requirements under s.1(3)(a) to (c) OLA 1984:
1.They are aware of the danger or have reasonable grounds to believe that it exists (This is a subjective test);
2.They know or have reasonable grounds to believe that someone is in the vicinity of the danger concerned or that they may come into the vicinity of the danger. Case law has held that this means the defendant must have actual knowledge either of the claimant’s presence in the vicinity OR of facts which would create a reasonable belief that there was another likely to be present; and
3.The risk is one against which, in all the circumstances of the case, they may reasonably be expected to offer the trespasser some protection (this is an objective test).
If these three conditions are satisfied a duty of care is owed to the trespasser.
How do you find a breach?
Standard of care- 84 act imposes a duty upon the occupier to take such care as it reasonable in all circumstances to see that the entrant does not suffer injury on the premises by reason of the danger concerned/
Have they fallen below this standard?
Consider likelihood, gravity of harm etc
Warning- s1(5) OLA 84 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
Assume causation and remoteness are made out
Defence- only consent and contributory negligence
Exclusion or limitation clauses under 1957
Section 2(1) OLA 1957 preserves the common law right that the occupier can:
“…in so far as he is free to and does extend, restrict, modify or exclude his duty…”
But there are four restrictions on the occupier’s freedom to use an exclusion clause to exclude or lessen their liability to the visitor:
1.Section 3 OLA 1957;
2.Unfair Contract Terms Act 1977 (‘UCTA 1977’);
3.Consumer Rights Act 2015 (‘CRA 2015’); and
4.Common law.
Section 3 of the OLA 1957 states that an occupier cannot by contract exclude or restrict the common duty of care which he owes to a third party. So where an occupier is bound by a contract to allow strangers to the contract to enter or use their premises, the duty of care owed to those strangers as visitors cannot be restricted or excluded by the contract.
UCTA applies to business to business liability. The occupier cannot exclude or restrict liability for death or personal resulting from their negligence, and they can only exclude or restrict liability for other types of loss if the term or notice satisfies the requirement of reasonableness.
The CRA applies to contract/notices between a consumer and trader. Like under UCTA, the occupier cannot exclude or restrict liability for death or personal injury resulting from their negligence, and they can only exclude or restrict liability for other types of loss if the term or notice is fair.
If none of the above apply to the contract/notice, such restrictions could be judged against the principle of ‘common humanity’ given in British Railway Board v Herrington. 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 (rather than just rely on exclusion/ restriction)?
In regards to the OLA 1984, the act is silent as to whether it is possible to successfully exclude liability. It is likely the same common law approach would apply as to the OLA 1957 – the principle of common humanity.
