Occupier's Liability AO3

Occupier’s Liability 1957 Act

Introduction

OLA 1957 protects lawful visitors on an occupiers’ premises from personal injury/ damage to property

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Meaning of “Occupier”

Meaning of ‘Occupier’ Common law definition: ‘sufficient control over the premises’ – means there can be multiple occupiers
This was seen in Wheat V Lacon - Both the owner (brewery) and the manager of the pub were possible ‘occupiers’
→ Wide common law definition shows judges are prepared to allow claims against not just owners of land but anyone who had control over the premises at the time of the accident e.g. tenant, manager
Occupiers have to pay compensation according to the percentage to which they were responsible (eg. 50:50). This is beneficial to the claimant as it gives them good access to compensation, which is fair

Meaning of Premises

Premises is defined in s.1(3) of OLA 1957 as “Premises’ includes any fixed or moveable structure, including any vessel, vehicle and aircraft”
The definition is also supported by common law - Wheeler V Copas - Paths and ladders are now also included as a premises
→ Generous to the claimant as there is a wide meaning of ‘premises’. Whether the claimant was injured on the land itself, in a building or on a moveable structure, they will still be able to bring a claim.
However it means that occupiers must be careful that all parts of their property are safe – even ladders, which could be seen on the occupiers for being expected to check every thing is reasonably safe

Duty of Care

s.2(1) Duty of care to all lawful visitors (Invitees, licensees, contractual visitors, statutory visitors)
This is a big improvement on the previous common law before the 1957 Act which held that different levels of duty were owed, depending on the status of the visitor. For example, contractual visitors were better protected than mere licensees.
Now all types of visitors are equally well protected.

Breach of Duty - Reasonable care to keep visitors reasonably safe

s.2(2) Standard of care: to take reasonable care to keep visitors reasonably safe for permitted purposes → Laverton V Kiapasha Takeaway → D was not liable when C slipped on wet tiles. D had taken reasonable care by laying non-slip tiles and using a mop to remove excess water.
This standard shows that occupiers do not have to eliminate all dangers from their premises. To do so would make the industry impossible. They only need to make sure that visitors are reasonably safe from any dangers.
→ This is supported by Rochester Cathedral V Debells, which said that trips, falls and slips are normal incidents and occupiers’ do not have to keep people safe from that

Breach of Duty - Higher standard for child visitors

s.2(3)a) Higher standard of care for child visitors: Occupiers must be prepared for children to be less careful than adults and make sure the premises are reasonably safe for a child of that age.
Glasgow v Taylor - Council was liable because they had not guarded against the allurement of berries which might attract a child in the park
→ The statute is fair in accepting that occupiers should take more care for child visitors because children are less aware of dangers than adults.
This could be seen further in Jolley V Sutton- D was liable for the injuries of a 14 year old when playing with a boat because “the capacity of children for getting into mischief must not be underestimated”.
→ However, this can be seen as taking it too far by saying that occupiers must ‘never underestimate the capacity of children for getting into mischief’ especially as the children in this case were young teenagers not infants.
Exception had been developed in Phipps V Rochester- D was not liable when a 5 year old without supervision fell into a trench
It is fair to expect that parents would supervise very young children from danger, and so occupiers wouldn’t be liable

Breach of Duty - Lower standard for professional visitors

s.2(3)b) Lower standard of care for professional visitors. Occupier is entitled to assume that professional visitors will guard against their own risks.
→ Roles V Nathan- D was not liable, because C, a chimney sweep, should have known to switch off the boiler, as he would have knowledge in this field, so D was not liable for his injuries
→ This is reasonable and fair on the occupier. It would be nonsense to expect occupiers to warn electricians to turn off the electricity before doing their work. However, occupiers must still warn professional visitors of any dangers which they would not be expected to be aware of eg. a collapsing ceiling.

Breach of duty- Warnings

s.2(4)a) Occupier can avoid liability if s/he gives a reasonable warning
Rae V Mars D was still liable because although he had given a warning it was unlit and too close to the hole (unreasonable)
→ This could cause inconsistency and uncertainty among occupiers as to what will count as a ‘reasonable’ warning and especially when there is no need for a warning because the danger is ‘obvious’.

Breach of duty- independent contractors

s.2(4)b) Occupier can avoid liability if the accident was due to the work of an independent contractor if: reasonable to trust, checked the competence of contractor and also checked the work if possible
Woodward V Hastings - D was liable because they did not, and could easily have checked whether the cleaners had removed the ice.
→ Criteria is sensible if the occupier is to avoid liability, however “did the occupier check the work if it is reasonable to do so?” – could lead to uncertainty. e.g. the work itself is too technical to check (eg. shower installation) but it would be reasonable for the occupier to have at least checked the shower worked before any visitor used it.

Exclusion clause

s.2(1) Exclusion clauses: Occupier is free to exclude liability under the Act
→This section appears to go against the whole purpose of the Act – if the occupier can put up a notice or ask the visitor to sign a contract which excludes any liability of the occupier if the visitor suffers damage. However, limits are set which restrict the effectiveness of these clauses (liability for death/personal injury cannot be excluded).
Also, exclusion clauses are unlikely to work against child visitors who cannot be expected to understand them.

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Occupier’s Liability 1984 Act

Introduction

The act protects trespassers from just injury on an occupiers’ property (fair as damage to property would be seen as too far as CLMT is still trespassing- s.1(4) C can claim for injury but not for property damage

Fairness on the Act as a whole

Act is not fair – because they are in the wrong by trespassing so it is unreasonable to expect an occupier to make sure they are safe

Act is fair, in some cases – people may trespass innocently, especially children.
Addie v Dumbreck precedent made the law very harsh on child trespassers especially as industrialisation meant that the amount of outside space available for children to play safely was shrinking
→ However – context of the 1920s must be taken into account (less sympathy for the vulnerable and property valued more than people).

By 1970s times had changed so the House of Lords (Supreme Court) used the Practice Statement to overrule Addie in BRB v Herrington→ later Parliament passed the OLA 1984 to clarify the law.

Duty of Care to Trespassers due to “state of premises”

s.1(1)a) Duty of care to non-visitors (re: the ‘state of the premises’)
Calgarth- “being allowed to use a bannister is lawful, but sliding down a bannister may make you a trespasser”
→A visitor may become a trespasser easily because trespasser does not only mean ‘no permission to enter’ but includes a visitor who has gone beyond the limits of their permission
→ Harder to rely on the OLA 1984
CLMTs may lose and receive no compensation even though their injuries were very serious and life changing.
However, Keown v Coventry-Ds were not liable because the 11 year old trespasser’s injuries were not due to the state of the fire escape but to his own activity of climbing on it.
The courts have frequently used s.1(1)a) to defeat claims by trespassers. Premises will not be seen as dangerous unless there was something wrong with the structure, not just because it was tempting for trespassing children to play on. → fair on occupier

Duty of Care only established if 3 criteria are met

s.1(3) For a duty to arise to non visitors, all 3 criteria must be satisfied:
- a) D was aware/ reasonable grounds to be aware of the danger.
- b) D was aware that trespassers might/ were in the vicinity of the danger.
- c) The danger was one which D could reasonably have protected against.
Rhind v Astbury- D did not owe a duty to the trespasser because he was unaware of the dangerous objects below the surface.
Duty is not automatic→ It is unusual in tort law for tests to be subjective, However, occupiers are only liable if they personally knew or should have known about both the danger and the likelihood of trespassers being in the vicinity.
→Arguably this makes it too easy for an occupier to avoid owing a duty by not making reasonable checks on his/her property. If the occupier does not check the premises, then it will be difficult to prove that they were aware of the danger or trespassers.
However, this is a common sense requirement which shows that the law recognises a need to balance the rights of a trespasser with the rights of the general public.
If measures to protect the trespasser are too costly or would deprive the public of benefit (eg. enjoyment of a lake) then it is unreasonable to impose a duty on the occupier.

Liability avoided if a reasonable warning is given

s.1(5) The occupier can avoid liability if s/he gives a reasonable warning
Westwood v Post Office- The warning was seen as reasonable because it was “sufficient for a reasonable adult”
The Westwood case seems to show that judges are more likely to accept that warnings are ‘sufficient’ under the 1984 Act compared to the 1957 Act. The warning did not specify the danger but was still held to be reasonable so the claim failed.

Consent Volenti applies to trespassers
s.1(6) D can avoid liability if C was volenti (knowingly accepted a risk)
Ratcliffe v McConnell- C ignored signs saying “shallow end”, so D was not liable for C’s injury.
Trespassers will often be seen as volenti – even older children (Keown) provided they were aware of the risk they were taking. Again this shows the judges are emphasising personal responsibility and many claims will fail for this reason.

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