1. Topic 3 Occupiers’ liability

2. Introduction Occupiers’ liability concerns the duty owed by those who occupy land (and premises upon it) towards the safety of those who enter onto the land. This area of tort is similar to negligence and was originally developed through common law, although today it is governed by statute: The duty owed to lawful visitors or those with permission to enter onto the land is defined in the Occupiers’ Liability Act 1957. The duty owed to those who enter onto land without permission (trespassers) is defined in the Occupiers’ Liability Act 1984. Topic 3 Occupiers’ liability

3. Occupier Neither statute defines the term ‘occupier’. Instead, s.1(2) states that the common-law rules apply. Under common law, the test as to who can be considered an occupier is one of control, i.e. someone who has some degree of control over the premises. This means that the occupier need not necessarily be the owner of the land or premises but may instead be a tenant or an independent contractor employed to carry out work. Indeed, there may be more than one occupier at the same time (see Wheat v E. Lacon and Co., 1966) Topic 3 Occupiers’ liability

4. Premises Occupiers of premises owe a duty. There is no definition of ‘premises’, but s.1(3) of the Occupiers’ Liability Act 1957 states that the term includes not only land and buildings but also fixed or moveable structures that include vessels, vehicles and aircraft. Topic 3 Occupiers’ liability

5. Occupiers’ Liability Act 1957 Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1957

6. Visitor The Occupiers’ Liability Act 1957 sets out the duty of care owed to visitors. A person will be classed as a visitor if he or she has permission to enter the premises. This permission may be express or implied. Anyone without permission is classed as a trespasser, and the 1957 Act will not apply. Instead, the Occupiers’ Liability Act 1984 contains the relevant provisions. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1957

7. Express permission A person has express permission if he or she has actively gained permission to be in a place, for example he or she has been asked to enter the premises. Permission can be withdrawn, but the person must be given a reasonable amount of time to leave the premises before he or she becomes a trespasser. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1957

8. Implied permission Sometimes, a person may not have express permission to be in a place but may still be classed as a visitor if the courts decide that he or she had implied permission to be there. Permission can be implied in a number of situations. The police, fire brigade, those who need to gain access to read gas, electricity and water meters, and sales people are all taken to have implied permission and are classed as visitors. In addition, the courts may also imply permission in certain circumstances, depending on the facts of the case (see Lowery v Walker, 1911). Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1957

9. Duty (1) Section 2(1) of the 1957 Act states that an occupier of premises owes a common duty of care to visitors to those premises. Section 2(2) defines the common duty of care as: …the 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. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1957

10. Duty (2) It is the visitor rather than the premises that has to be made safe. This means that there can be dangerous areas within the premises, but the occupier will have discharged his or her duty if the visitor is made safe, for example if the area is fenced off or the visitor is given adequate warning of the danger. The standard of care expected is the same as that in ordinary negligence, so the occupier need only protect the visitor from foreseeable risks. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1957

11. Duty (3) The 1957 Act states that this duty applies only while visitors are using the premises for the purposes for which they are invited or permitted to be there. Scrutton LJ summed this up in the case of The Calgarth (1927): When you invite a person into your house to use the stairs, you do not invite him to slide down the banisters. This means that if the visitor does something that he or she is not invited or permitted to do, the occupier owes no duty towards him or her under the 1957 Act. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1957

12. Duty to children The 1957 Act gives guidelines as to how the duty of care operates in certain situations or towards certain categories of people. Section 2(3)(a) states that an occupier ‘must be prepared for children to be less careful than adults’, so the premises must be reasonably safe for a child. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1957

13. Persons exercising a calling The Occupiers’ Liability Act 1957 also covers the duty owed by the occupier to those exercising a calling. Section 2(3)(b) states that: An occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incidental to it, so far as the occupier leaves him free to do so. Those carrying out a trade are therefore expected to take measures to avoid the risks associated with it. For example, an occupier could expect an electrician to take precautions to avoid being electrocuted. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1957

14. Independent contractors Section 2(4)(b) of the 1957 Act states that: Where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated…as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1957

15. Defences: warnings (1) Section 2(4)(a) of the 1957 Act states that: Where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1957

16. Defences: warnings (2) If an occupier gives a visitor sufficient warning of a danger so that the visitor is made reasonably safe, his or her duty is discharged. Whether a warning is sufficient is a question of fact in each case. A warning sign may be enough if it is clear, but in other circumstances a barrier may be required. Characteristics of the visitor are relevant, so a warning sign would not be sufficient to protect a child or a blind person. Nor would it be sufficient if there were no alternative: if the path to a house is dangerous but there are no other means of access, a warning notice would not be enough. If a warning is not sufficient, the occupier remains liable under the 1957 Act. However, an occupier does not have to warn against an obvious danger. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1957

17. Defences: exclusion of liability (1) Sometimes, an occupier may try to lessen the duty owed to visitors, for example by putting a sign on the front door stating that he or she will not be liable for any injury sustained by a visitor. The question is whether he or she is allowed to modify the duty owed. Section 2(1) of the 1957 Act states: 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 and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1957

18. Defences: exclusion of liability (2) It appears from this that the duty can be modified, but this is subject to the Unfair Contract Terms Act 1977. Under this statute, an occupier cannot exclude liability for death or personal injury caused by negligence. In the case of property damage, for example if a person’s car is scratched, liability can be excluded only if it is reasonable to do so. This is a question of fact in each case. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1957

19. Occupiers’ Liability Act 1984 Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1984

20. Introduction While the Occupiers’ Liability Act 1957 applies to visitors, the Occupiers’ Liability Act 1984 governs an occupier’s duty to non-visitors or trespassers. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1984

21. Trespasser A trespasser is someone who enters land or premises without permission. His or her presence must either be unknown to the occupier or, if known about, be objected to. A person can enter land or premises as a visitor and then become a trespasser. For example, if the occupier told a visitor to remain downstairs, and the visitor then went upstairs, the visitor would be trespassing in that area. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1984

22. Duty to trespassers (1) A duty will only be owed by an occupier to a trespasser if the conditions in s.1(3) of the Act are satisfied: An occupier of premises owes a duty to another (not being his visitor)…if: (a)he is aware of the danger or has reasonable grounds to believe that it exists; (b)he 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; and (c)the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1984

23. Duty to trespassers (2) The occupier must be aware of the danger. This is usually a hidden danger rather than an obvious one that a trespasser would be expected to avoid. The occupier must know or have reasonable grounds to believe that the trespasser may encounter the danger. The courts will take all the circumstances of the case into account, including whether there is evidence that people have trespassed there before. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1984

24. Duty to trespassers (3) Under s.1(4), the duty is ‘to take such care as is reasonable in all the circumstances of the case to see that the trespasser does not suffer injury on the premises by reason of the danger concerned’. This is a question of fact in each case, and the court will consider such things as the likelihood of harm, the potential seriousness of any injury and how practical it was to take precautions against such harm occurring. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1984

25. Damage Unlike the 1957 Act, the Occupiers’ Liability Act 1984 does not cover damage to property: an occupier will be liable for personal injury only. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1984

26. Defences: warnings Under s.1(5), the duty may be discharged by ‘taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk’. Thus, a warning sign may suffice, but only if it is clear enough so that the risk is obvious to the trespasser. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1984

27. Defences: volenti non fit injuria Under s.1(6), ‘no duty is owed to any person in respect of risks willingly accepted as his by that person’. Thus, an occupier will not be liable for injury sustained by a trespasser if that trespasser has willingly accepted the risk of it occurring. Topic 3 Occupiers’ liability: Occupiers’ Liability Act 1984