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Occupiers' Liability
 
 
 
 
Occupiers' liability generally refers to the duty owed by land owners to those who come onto their land. However, the duty imposed on land owners can extend beyond simple land ownership and in some instances, the landowners may transfer the duty to others, hence the term occupier rather than owner. The term occupier itself is misleading since physical occupation is not necessary for liability to arise. Occupiers' liability is perhaps a distinct form of negligence in that there must be a duty of care and breach of duty, causing damage. The rules of remoteness apply to occupiers liability in the exact same way that they apply to negligence claims. Liability can arise on occupiers for omissions since their relationship gives rise to duty to take action to ensure the reasonable safety of visitors. The law relating to occupiers' liability originated in common law but is now contained in two major pieces of legislation:
 
Occupiers Liability Act 1957  - which imposes an obligation on occupiers with regard to 'lawful visitors'
 
Occupiers Liability Act 1984 - which imposes liability on occupiers with regard to persons other than 'his visitors'.
 
Different levels of protection are expected under the two pieces of legislation with a higher level of protection afforded to lawful visitors.
 
 
Occupiers
 
Both the Occupiers Liability Acts of 1957 and 1984 impose an obligation on occupiers rather than land owners. The question of whether a particular person is an occupier is a question of fact and depends on the degree of control exercised. The test applied is one of 'occupational control' and there may be more than one occupier of the same premises:
 
 
 
Wheat v E Lacon & Co Ltd [1966] AC 552 Case summary

 

 


Physical occupation is not a requirement:
 
 
 
Harris v Birkenhead Corp [1976] 1 WLR 279    Case summary

 

 

 
 
 
Occupiers Liability Act 1957
 
 
 
The Occupiers Liability Act 1957 imposes a common duty of care on occupiers to lawful visitors. By virtue of s.1(3)(a), the Act applies not only to land and buildings but also extends to fixed and movable structures, including any vessel, vehicle or aircraft. The protected damage under the Occupiers Liability Act 1957 includes death, personal injury and damage to property.
 
 
 
Lawful visitors -
 
 
Lawful visitors to whom occupiers owe the common duty of care for the purposes of the Occupiers Liability Act of 1957 include:
 
Invitees - S.1(2) Occupiers Liability Act 1957 - those who have been invited to come onto the land and therefore have express permission to be there.
 
Licensees - S.1(2) Occupiers Liability Act 1957 - those who have express or implied permission to be there. According to S. 1(2) this includes situations where a licence would be implied at common law. (See below)
 
Those who enter pursuant to a contract - s.5(1) Occupiers Liability Act 1957 - For example paying guests at a hotel or paying visitors to a theatre performance or to see a film at a cinema.
 
Those entering in exercising a right conferred by law - s.2(6) Occupiers Liability Act 1957 - For example a person entering to read the gas or electricity metres. 
 
 
 
 
Implied licence at common law
 
In the absence of express permission to be on the land, a licence may be implied at common law where there exists repeated trespass and no action taken by the occupier to prevent people coming on to the land. This requires an awareness of the trespass and the danger: 
 
 
 
 
 
Repeated trespass alone insufficient:
 
 
Edwards v Railway Executive [1952] AC 737   Case Summary
   
 
 
Allurement principle

The courts are more likely to imply a license if there is something on the land which is particularly attractive and acts as an allurement to draw people on to the land.
 
 

However, since the introduction of the Occupiers Liability Act 1984, the courts have been reluctant to imply a licence:

 
Tomlinson v Congleton [2003] 3 WLR 705   Case summary
 
 
 
Non lawful visitors
 
The 1957 Act does not extend protection to:
 
  • trespassers
 
  • Invitees who exceed their permission
 
  • Persons on the land exercising a public right of way:
 
McGeown V Northern Ireland [1994] 3 All ER 53  Case summary
 
  • Persons on the land exercising a private right of way:
 
 
Holden v White [1987] QB 380   Case summary
 
 
 
 
 
The common duty of care
 
 
The common duty of care is set out in s.2(2) Occupiers Liability Act 1957:
 
S.2(2)  - 'The common duty of care is 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.'
 
 
Thus the standard of care varies according to the circumstances. The legislation refers to two particular situations where the standard may vary:
 
 
  • S.2(3)(a) - an occupier must be prepared for children to be less careful than adults

 

  • S.2(3)(b) - an occupier may expect that a person in the exercise of his calling will appreciate and guard against any special risks ordinarily incident to it
 
 
 
 
 
S. 2(3) (a) Child visitors
 
The courts will take into account the age of the child and level of understanding a child of that age may be expected to have
 
 
 
Jolley v Sutton [2000] 1 WLR 1082     Case summary
 
 
 
Phipps v Rochester Corporation [1955] 1 QB 450   Case summary
 
 
 
 
S.2(3)(b) Common calling
 
This provision applies where an occupier employs an expert to come on to the premises to undertake work. The expert can be taken to know and safeguard themselves against any dangers that arise from the premises in relation to the calling of the expert. For example if an occupier engages an electrician, the electrician would be expected to know the dangers inherent in the work they are employed to do.
 
 
Roles v Nathan [1963] 1 WLR 1117   Case summary
 
 
Salmon v Seafarer Restaurant [1983] 1WLR 1264  Case summary
 
 
Ogwo v Taylor [1987] 3 WLR 1145  Case summary
 
 
 
 
 
 
Warnings and warning signs
 
It may be possible for an occupier to discharge their duty by giving a warning of the danger.
 
Roles v Nathan [1963] 1 WLR 1117   Case summary
 
However, S.2(4)(a) Occupiers Liability Act 1957 provides that a warning given to the visitor will not be treated as absolving the occupier of liability unless in all the circumstances it was enough to enable the visitor to be reasonably safe.
 
The warning must cover the danger that in fact arises:
 
White v Blackmore [1972] 3 WLR 296    Case summary
 
 
There is no duty to warn against obvious risks:
 
 
 
 
 
 
 
 
Dangers arising from actions undertaken by independent contractors
 
 
 
 
S.2(4)(b) Occupiers Liability Act 1957
 
 
An occupier is not liable for dangers created by independent contractors if the occupier acted reasonably in all the circumstances in entrusting the work to the independent contractor and took reasonable steps to satisfy himself that the work carried out was properly done and the contractor was competent.
 
 
 
Ferguson v Welsh [1987] 1 WLR 1553  case summary
 
 
 
 
 
Defences applicable to Occupiers Liability Act 1957
 
 
 
Volenti non fit injuria - s.2(5) OLA 1957 - the common duty of care does not impose an obligation on occupiers in respect of risks willingly accepted by the visitor. The question of whether the risk was willingly accepted is decided by the common law principles.  
 
 
 
 
Contributory negligence - Damages may be reduced under the Law Reform (Contributory Negligence) Act 1945 where the visitor fails to take reasonable care for their own safety.
 
 
 
 
Exclusion of liability - s. 2(1) OLA 1957 allows an occupier to extend, restrict, exclude or modify his duty to visitors in so far as he is free to do so. 
 
 
White v Blackmore [1972] 3 WLR 296    Case summary
 
Where the occupier is a business the ability to exclude liability is subject to the Unfair Contract Terms Act 1977
 
 
 
 
 
 
 
Occupiers Liability Act 1984
 
 
 
 
 
The Occupiers Liability Act 1984 imposes a duty on occupiers in relation to persons 'other than his visitors' (S.1(1)(a)OLA 1984). This includes trespassers and those who exceed their permission. Protection is even afforded to those breaking into the premises with criminal intent see Revill v Newbery [1996] 2 WLR 239 Case summary. Whilst it may at first appear harsh to impose a duty on occupiers for those that have come on to their land uninvited and without permission, liability was originally recognised at common law for child trespassers where the occupier was aware of the danger and aware that trespassers, including children would encounter the danger. British Railways Board v Herrington [1972] AC 877 Case summary overruling  Addie v. Dumbreck  [1929] AC 358    Case summary.
 
'Occupier' is given the same meaning as under the 1957 Act (S.1(2) OLA 1984). Since the Occupiers Liability Act 1984 applies to trespassers, a lower level of protection is offered. Hence the fact that death and personal injury are the only protected forms of damage and occupiers have no duty in relation to the property of trespassers. (S.1(8) OLA 1984). Also the duty only arises when certain risk factors are present.
 
 
 
 
The circumstances giving rise to a duty of care
 
 
S.1(3)  Occupiers Liability Act 1984 An occupier owes a duty to another (not being his visitor) if:
 
(a) He is aware of a the danger or has reasonable grounds to believe that it exists
 
(b) He knows or has reasonable grounds to believe the other is in the vicinity of the danger or may come into the vicinity of the danger
 
(c) The risk is one in which in all the circumstances of the case, he may reasonably be expected to offer the other some protection
 
If all three of these are present the occupier owes a duty of care to the non-lawful visitor.
 
The criteria in s.1(3) must be determined having regard to the circumstances prevailing at the time the alleged breach of duty resulted in injury to the claimant:
 
 
 
 
 
 
 
Standard of care
 
 
S.1(4) OLA 1984 - the duty is to take such care as is reasonable in all the circumstances of the case to see that the other does not suffer injury on the premises by reason of the danger concerned.
 
 
 
Revill v Newbery [1996] 2 WLR 239    Case summary
 
 
Ratcliff v McConnell [1997] EWCA Civ 2679   Case summary
 
 
  
The duty may be discharged by giving a warning or discouraging others from taking the risk S.1(5) Occupiers Liability Act 1984 - note there is no obligation in relation to the warning to enable the visitor to be reasonably safe - contrast the provision under the 1957 Act.
 
 
 
Defences
 
 
 
Volenti non fit injuria - s.1(6) OLA 1984 - no duty of care is owed in respect of risks willingly accepted by the visitor. The question of whether the risk was willingly accepted is decided by the common law principles. 
 
 
Contributory negligence - Damages may be reduced under the Law Reform (Contributory Negligence) Act 1945 where the visitor fails to take reasonable care for their own safety.
 
 
 
Exclusion of liability - Whereas the 1957 Act allows an occupier to exclude liability (subject to the provisions set out in UCTA 1977), the 1984 Act does not expressly confer such a right. This may be an oversight by the legislature and it may be possible to exclude liability since it is not expressly forbidden or it may be that the legislature was of the opinion that it should not be possible to exclude liability for the basic level of protection afforded to trespassers.
 
 


 
Occupiers Liability in tort law