Occupiers Liability Act 1957 PDF

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Occupiers Liability Act 1957. ...

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Occupiers Liability Act 1957 & 1984 Tort has developed out of and is very similar to negligence involves the state of the premises. Based on 2 Acts of parliament:  

The OLA 57 The OLA 84

BRIEF DUTY OF BOTH ACTS: Occupier of land has certain duties with regard to the safety of people who come onto the land. The duty is defined by:  

OLA 1957: covers occupiers duty to people who enter their land with permission (lawful visitors) OLA 1984: covers the duty of trespassers.

OCCUPIER: The person who controls the premises does NOT have to be:  The physical occupier or the owner. In each case it will be question to the fact. As there isn’t a set test for determine the occupation will need to find it in common law. There can be more than one occupier. Both or all can be liable in respect of the same damage. Wheat v Lacon: A pub manager was allowed to rent out rooms in his private quarters even though he was not the owner. An action arose because a paying guest fell on an unlit staircase and died. Although as it was slater found that a stranger had removed the bulb so there was no liability on the pub manager or the brewery. The HOL held that an occupier was someone in actual control of the premises at the time when the damage was caused. This meant that both the landlord and manger could potentially be liable. STATE OF THE PREMISES: The act imposes liability on occupiers of premises. Premises are defined under S.1 (3) OLA 57 any “fixed or moveable structure, including any vessel, vehicles and aircrafts.” The premises are wide-ranging. They include:

Land, building, lifts, ships and ladders. Whealer v Copas: A builder working on a property was injured on a ‘ladder’ which was lent to him. The judge said ‘a ladder could under some circumstances be premises’ however, Copas was no longer the occupier since he had no control over the ladder at the relevant time. This case shows how far courts are willing to stretch the meaning of premises. VISITORS: Defined as lawful visitors on the premises as defined in S.1 (2) they include: Invitees – these are people who not only have the permission to enter but whose entry is in the material interest of the occupier for example friends. Licensees – peoples entry that has a material interest for the occupier they can be anyone with permission to be on the premises. For example customers, a person entering under contract like a painter, a person entering by legal rights such as meter reader and police executing a warrant. OLA 1957: THE DUTY OF THE OCCUPIER: S 2.(1) “an occupier of premises owes the same duty, the common duty of care to all his visitors except in so far as he is free to do and does extend, restrict, modify or exclude his duty.” S 2. (1) Provides that an occupier of premises owes a duty of care to visitors to those premises. The word “common” obviously used to signify that the act applies to all lawful visitors. This states the nature of the duty in s.2(2) duty is “take such care in all circumstances… is reasonable to see that the visitors will be reasonably safe in using the premises for the purpose of which he is invited…” 3 key point apply here: a) Same as in negligence the standard of reasonable men. As a result the occupier is merely obliged to guard against any foreseeable risk, not unexpected ones. b) Duty only applies to visitors carrying out authorised activities, if visitor astray he may lose protection under OLA57. c) Keep visitor safe not necessarily to maintain safe premises. LIABILITY FOR CHILDREN: S.2(3)(b) “…must be prepared for children to be less careful then adults…”

Demonstrates again that it is the visitor that just be kept safe and that in the case of children standard of care must be measured subjectively not objectively. The reasoning is that it may pose no threat to an adult but can be dangerous to a child. Glasgow corporation v Tyler: A 7 year old boy was poisoned when he ate berries in an area of botanical gardens which was not fenced off in anyway. Claim was successful. The court held that the occupier must anticipate that children are less cautious than adults and that the berries amounted to “allurement” occupiers must take greater care of children than they would of adults. Phipps v Rochester: a 5 year old boy was injured one evening when he fell in a trench dug by the D workers, near which children played. The claim was unsuccessful. The court held that the occupier (the local council) was not in breach of the duty of care as parents of young children have a duty to prevent them from coming into contact with danger. Jolly v London borough of Sutton: Two 14 year old boys were injured on an abandoned boat on the council land. Children regularly played in the boat and it was an obvious danger but the council failed to remove it for 2 years. The boys were injured while jacking up the boat and trying to repair it. Claim was successful. The decision can seem harsh since it was quite difficult to argue that the council could in fact have foreseen the very unusual way in which the injuries occurred. Nevertheless, the act imposes a duty on an occupier to recognise that children may behave in very different ways to adults. LIABILTY TO PERSON EXCERSING A CALLING: (TRADER) S2 (3)(b) “… A person in the exercise of his calling will appreciate and guard against any special risks ordinarily incident to it…” Occupier will not be liable where tradesman fail to guard against risks they should know about. Roles v Nathan:

Two chimney sweeps who were cleaning factory chimneys died after inhaling fumes. There was no liability because they had been warned by the occupier of the danger of working in the chimney while the furnace was lit but had ignored the advice. The occupier may assume that professional visitors will guard against risks that are within their professional knowledge. LIABILITY FOR INDEPENDENT CONTRACTORS: Generally the occupier will avoid liability suffered by visitors due to the negligence of independent contractors. Under S2 (4) (b) the occupier is not liable for “damage caused to a visitor by a danger due to the faulty execution of any work or construction, maintenance or repair by an independent contractor…” Its reasonable because contractors are covered by their own insurance and so the claimant can still recover compensation. However 3 requirements will apply form the D: 1) Reasonable that occupier to have entrusted the work to IC 2) Contractor hired must be contempt to carry out the task. 3) If possible the occupier must inspect the work, if possible. Haseldine v Daw: The c was killed following the negligent repair of a lift on the occupiers premises. The occupier had hired reputable contractors for a highly technical procedure and successfully defended the claim on this basis. The Claim unsuccessful. No liability because the technical nature of the repairs meant that the occupier was not equipped to check the work and could rely on the skills and expertise of the contractor. Woodward v Mayor of Hastings: A child was injured on school steps which were negligently left in an icy state after they had been cleared of snow. The claim was successful. Liability stayed with the occupier since checking on the standard of the work was straightforward because of the type of work. DEFENCES FROM OLA 57: Warnings:

Under s2(4)(a) a warning will not absolve the occupier of liability unless “… in all the circumstances it was enough to enable the visitors to be reasonably safe.” What amount to suffiecnt warnings then will be a question of fact in each case. Cannot absolve the occupier if there is only one way of access and its dangerous and there are no other means of access and so would have no choice but to use the unsafe route. Rae v Mars: Here a warning notice was used in respect in respect of deep pit inside the entrance of a dark shed with no artificial lighting. The occupier was held liable because the pit was immediately inside the entrance and so the warning was insufficient to safe guard the visitor from the danger. However, the occupier will not be obliged to take excessive steps to avoid danger when the danger is obvious and suffiecnt steps have been taken to prevent harm. Consent: S 2(5) allows that the occupier “…has no liability to a visitor in respect of risks willingly accepted by the visitor…” However a number of basic requirements apply:   

The risk must be fully understood by the visitor. Mere knowledge is insufficient, it must actually be accepted by the visitor and the knowledge must be suffiecnt to make the visitor safe. The c has no choice but to enter the premises then he cannot be taken to have accepted the risk and the defence will be unavailable.

Exclusion clause: S 2(1) refers to the right of the occupier to exclude liability “by agreement or otherwise.” Therefore they can be included as a term in a contractual licence and may be alternatively communicated in an effective notice. The use of exclusion clauses however, will be subject to various restrictions: They are apparently unavailable in the case of person entering under legal right. They will not apply in the case of strangers for example a tenant’s visitor because they will not have had any chance in advance to agree the exclusion. Fail against children, who may be unable to read and who may not fully understand their implications. Not allowed in respect of death or personal injury caused by the occupiers’ negligence because this will be prevented by s 2(1) unfair contracts terms act 1977.

Contributory negligence: The C contributory negligence has the effect of reducing awards of damage according to the extent to which the courts believes that the visitor is responsible for his own injuries or loss. OLA 1984: Act introduced to provide a duty of care to trespassers. Came into place as trespassers were treated harshly and occupier owed no duty at all other then inflicting damage purposely. This act made man traps illegal. The common law was harsh on child trespassers who might have limited understanding, either the risks confronting them or indeed the nature of the trespass itself. Addie v Dumbreck: Children frequently played on colliery premises and near dangerous machinery and were turned away by the owners. When one child was injured the courts held that there was no liability on the occupier since the child was a trespasser. Because the growth of more dangerous premises and taking into accounts the difficulties of making children appreciate danger many attempts were made to change the law and this was finally achieved with the establishments of the “common duty of humanity” British railway board v Herrington: A 6 year old got badly burned when straying onto an electrified railway line, through vandalised fencing. It was well known that the fences were often broken ad small children played near the line and the railway board regularly repaired it. The HOL previously overruled Addie v Dumbreck with the use of the practise statement and established the common duty of humanity. This was a limited duty owed to a child trespasser when the occupier know of the danger, and of the likelihood of the trespass, and had the skills, knowledge and resources to avoid the accident. By S 1(1)(a) a duty applies in respect of people other than the visitors so trespasser. S 1(1)(a) “… injury in the premises by reason of any danger due to the state of the premises or things done or omitted to be done on them.” Meaning act provides compensation for injuries only. Damage to property is not covered reflecting the understandable view that trespassers are deserving of less protection than a lawful visitor. The occupier will only owe a duty under “S1(3): a) “He is aware of the danger or has reasonable grounds to believe that it exists” 

D must know of the danger.



Its subjective based on the occupiers actual knowledge.

b) “knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case weather the other has lawful authority for being in the vicinity or not) and:” 

Trespasser in risk of danger.

c) “The risk is one which, in all circumstances of the case, he may be reasonably expected to offer the other some protection.” 

Objective based on what a reasonable occupier should do for example fencing up near railways or dangerous areas.

THE NATURE OF THE DUTY: The character of the duty defined in the act. In s1(4) the duty is to “… take such care as is reasonable in all circumstance.” To prevent injury to trespasser “by reason of the danger concerned”    

So the standard of care is clearly an objective standard based on negligence. What is required of the occupier depends on the circumstances of each case. The greater the degree of risk the more persecutions the occupier will have to take. Factors to take into account include the nature of the premises, the degree of danger, the practically of taking precautions and of course the age of the trespasser.

DEFENCES FROM OLA 84: Warnings: Under s1(5) in an appropriate case the occupier could do so by taking”…such steps as are reasonable in all circumstance…” This might be in the case of an adult trespasser be achieved by use of effective warnings or by discouraging people from entering. Consent: S1(6) also preserve the defence of volenti. Again the C must appreciate the nature and degree of the risk, not merely be aware of its existence for the defence to apply....