Lawful Visitors - OLA 1957

OLA (Occupiers Liability Act)

Lawful Visitor

Anyone who has permission (express or implied) to be on the occupiers premises. This include:

• Invitees - Those invited onto the premises for a specific purpose

• Licensees: Those with a legal right of entry (e.g. police officers with a warrant

• Those with a legal right of entry (e.g. police officers with a warrant)

• Contractual entrants (e.g. Paying customers at a shop or cinema)

Duty owed to lawful visitors

1957 Act requires occupiers to take reasonable care to ensure that lawful visitors are reasonable safe for the purpose of their visit. This is known as the “common duty of care.”

Common duty of care details

• Duty covers the state of the premises as well as things done or omitted on them

• Children: Occupiers must be prepared for children to be less careful than adults

• Specialist visitors (e.g. Tradespeople): Occupiers can expect them to guard against risks related to their expertise.

When is the Duty Breached

_____ when the occupier fails to do what a reasonable occupier would have done to keep visitors safe. Key points include:

• Was the hazard foreseeable?

• Were reasonable precautions taken (e.g. warning signs, repairs?)

• Did the visitor act in an unexpected or reckless way?

Exclusion of liability

in some cases occupiers can limit or exclude liability with proper notice (subject to statutory limits, especially regarding business premises).

Contributory negligence

If the visitor contributes to their own harm, damages may be reduced.

Volenti non fit injuria

If the visitor willingly accepts the risk, the occupier may not be liable.

Warnings

A clear warning may discharge the duty if it enables the visitor to be reasonably safe.

Exclusion of liability

In some cases, occupiers can limit or exclude liability with proper notice (subject to statutory limits, especially regarding business premises).

Furmedge v Chester DC

Premises are defined in the 1957 legislation as ‘fixed or moveable structures that include vessels, vehicles, and aircraft.’ In this case it was judged a PVC structure being used as a walk in art piece that lifted from the ropes and rolled killing two people fit the description and D was liable

Wheat v E Lacon and Co

‘An occupier is someone who has a degree of control over the premises’ this may or may not be owner. In this case both the company that owned the pub and their employee who ran the pub day to day were occupiers. However neither were liable as the missing lightbulb that had caused the man to fall and die had been removed by a random stranger, so the occupier had no part in not making it reasonably safe.

Harris v Birkenhead Corporation

A four year old wandered from her parents and into a derelict home. She was injured when she fell out a window. The council had just served a compulsory purchase order meaning they had control land were liable for not boarding anything up or securing the premises.

Bailey v Armes

Defendant lived above a supermarket and allowed their son to play on the roof. One day he took his friend up but they fell and got injured. It was ruled neither the supermarket, who could not access the roof, nor the parents, who did not own the roof, had enough control to be occupiers.

Matthewson v Crump

Crump owned a bungalow but had moved out to get the house expanded to two stories. A plasterer then came round to give a quote and fell through the floor. While she was the owner she had no control of construction safety at the time and could not be liable.

Lowery v Walker

Villagers were in the habit of using D’s field as a shortcut which he was aware of. While he had said he didn’t like it, he took no steps to deter trespassers so there was an implied consent. D then placed a ‘savage’ horse on this land without warning who attacked, as had happened before, a person as they crossed, D was liable.

Section 2(1) and 2(2) of 1954 legislation

(1) - states a common duty of care exists

(2) - defines this as ‘the duty of to take such care as in al circumstances of the case is reasonable to see that visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there’

Rochester Cathedral v Debell

Claimant tripped on a protruding lump of concrete. It was held that tripping, slipping and falling are everyday occurrences that should not be expected for the occupier to completely guard against and that the risk is reasonably foreseeable only where there is a real source of danger which a reasonable person would recognise as needing remedy.

Laverton v Kiapasha Takeaway

Takeaway had installed slip proof flooring and mopped where it was possible to. During a rush C managed to slip. As steps had been taken to make the area reasonably safe D was not liable.

White Lion Hotel V James

The hotel had chosen not to install a safety feature on windows to save money ($8). This meant that James was able to jump from the window to kill himself. As the cost was so low for such a high risk they were found liable for this.

Bowen v National Trust

C was hit by a branch that fell from a tree. Previously, NT had checked the branch but it had passed all their tests as safe to remain there. Therefore, they were not liable as they had taken steps to make it reasonably safe.

Geary v JD Wetherspoon

C slid down a large staircase at a Wetherspoons but fell and was paralysed. This was the claimants fault so the business was not liable. It is not expected that the occupier removes all danger.

Moloney v Lambeth LBC

A four year old fell through a gap in the guard rail that would have only been possible for someone of their size. The HoL decided that it was dangerous to a child and that children require a higher standard of care as they are unlikely to appreciate danger.

Phipps v Rochester Corporation

A five year old and a seven year old went searching for berries by a new build estate. The five year old fell in a trench and broke his leg. It was decided that the parents should have had control of such young children and the fault was theirs not the housing corp.

Glasgow Corporation v Taylor

A seven year old ate some berries off a bush in a botanical garden and died. There was no indication of the danger it would pose. Additionally, it was decided that berries would naturally attract young children and that more had to be done to protect them. This is the case that established allurement.

Jolley v Sutton

Two boys tried to winch up a boat the council had failed to move for 2 years when it fell injuring one. Allurement applied here. It was also decided that the type of harm did not need to be foreseeable, just any harm was foreseeable.

Roles v Nathan

Two chimney sweeps died from carbon monoxide poisoning after ignoring warnings from a safety inspector. As there was a present safety inspector and their deaths were caused by risks inherent to their trade the defendant was not liable.

English Heritage v Taylor

This case cleared up the area of ‘warning signs’ within this legislation. In this case the warning sign was present but too far from the actual danger to be a sufficient defence. A warning sign within proximity is a valid defence to Occupiers Liability.

Rae v Mars

A surveyor was inspecting a dark warehouse when he fell in a pit. If there is a larger danger present then larger warning like barriers may be legally necessary. Normally a written or oral warning is sufficient.

Darby v National Trust

This is the case for the defence of obvious dangers. Defendant was swimming in a national trust lake when he drowned. The courts felt a risk of drowning in a lake was too obvious for signs to be warranted.

Rules for independent contractors

1. it must have been reasonable for the occupier to have entrusted the work to an independent contractor.

2. The contractor hired must be competent to carry out the task

3. If possible, the occupier should whether the work is properly done.

If all three are satisfied the occupier has a complete defence.

Haseldine v Daw and Son

The occupier hired a team to repair and maintain the lifts in their flat building. When a visitor came the lift snapped a the second floor and plummeted killing the man. The occupier was not liable for negligent care as lift maintenance is highly specialised and it was reasonable to give it to a contractor

Bottomley v Todmorden Cricket Club

The cricket club hired a completely incompetent man with no experience or insurance to hold a firework show and gave his gunpowder and fuel instead of fireworks. This caused an explosion injuring many people. It was ruled such a specialist, high risk event needed an insured and competent contractor so they were liable.

Woodmar v Mayor of Hastings

Defendant hired a contractor to clear ice but did not check the work even though this would have been very possible. The contractors had left ice causing Claimant to slip and get injured. Liable.