Published: Fri, 02 Feb 2018

Liability for Land Law and Premises Legislation

1. Preliminary

(1) The rules enacted by the two next following sections shall have effect,
in place of the rules of the common law, to regulate the duty which an occupier
of premises owes to his visitors in respect of dangers due to the state of the
premises or to things done or omitted to be done on them.

(2) The rules so enacted shall regulate the nature of the duty imposed by law
in consequence of a person’s occupation or control of premises and of any
invitation or permission he gives (or is to be treated as giving) to another to
enter or use the premises, but they shall not alter the rules of the common law
as to the persons on whom a duty is so imposed or to whom it is owed; and
accordingly for the purpose of the rules so enacted the persons who are to be
treated as an occupier and as his visitors are the same (subject to subsection
(4) of this section) as the persons who would at common law be treated as an
occupier and as his invitees or licensees.

(3) The rules so enacted in relation to an occupier of premises and his
visitors shall also apply, in like manner and to the like extent as the
principles applicable at common law to an occupier of premises and his invitees
or licensees would apply, to regulate-

(a) the obligations of a person occupying or having control over any fixed or
moveable structure, including any vessel, vehicle or aircraft; and
(b) the obligations of a person occupying or having control over any premises or
structure in respect of damage to property, including the property of persons
who are not themselves his visitors.

(4) A person entering any premises in exercise of rights conferred by virtue
of an access agreement or order under the National Parks and Access to the
Countryside Act, 1949, is not, for the purposes of this Act, a visitor of the
occupier of those premises.

2. Extent of occupier’s ordinary duty

(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 and does
extend, restrict, modify or exclude his duty to any visitor or visitors by
agreement or otherwise.

(2) The common duty of care is a 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.

(3) The circumstances relevant for the present purposes include the degree of
care, and of want of care, which would ordinarily be looked for in such a
visitor, so that (for example) in proper cases-

(a) an occupier must be prepared for children to be less careful than adults;
and
(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, so far
as the occupier leaves him free to do so.

(4) In determining whether the occupier of premises has discharged the common
duty of care to a visitor, regard is to be had to all the circumstances, so that
(for example)-

(a) 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; and
(b) 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 without more 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.

(5) The common duty of care does not impose on an occupier any obligation to
a visitor in respect of risks willingly accepted as his by the visitor (the
question whether a risk was so accepted to be decided on the same principles as
in other cases in which one person owes a duty of care to another).

(6) For the purposes of this section, persons who enter premises for any
purpose in the exercise of a right conferred by law are to be treated as
permitted by the occupier to be there for that purpose, whether they in fact
have his permission or not.

3. Effect of contract on occupier’s liability to third party.

(1) Where an occupier of premises is bound by contract to permit persons who
are strangers to the contract to enter or use the premises, the duty of care
which he owes to them as his visitors cannot be restricted or excluded by that
contract, but (subject to any provision of the contract to the contrary) shall
include the duty to perform his obligations under the contract, whether
undertaken for their protection or not, in so far as those obligations go beyond
the obligations otherwise involved in that duty.

(2) A contract shall not by virtue of this section have the effect unless it
expressly so provides, of making an occupier who has taken all reasonable care
answerable to strangers to the contract for dangers due to the faulty execution
of any work of construction, maintenance or repair or other like operation by
persons other than himself, his servants and persons acting under his direction
and control.

(3) In this section, “stranger to the contract” means a person not
for the time being entitled to the benefit of the contract as a party to it or
as the successor by assignment or otherwise of a party to it, and accordingly
includes a party to the contract who has ceased to be so entitled.

(4) Where by the terms or conditions governing any tenancy (including a
statutory tenancy which does not in law amount to a tenancy) either the landlord
or the tenant is bound, though not by contract, to permit persons to enter or
use premises of which he is the occupier, this section shall apply as if the
tenancy were a contract between the landlord and the tenant.

(5) This section, in so far as it prevents the common duty of care from being
restricted or excluded, applies to contracts entered into and tenancies created
before the commencement of this Act, as well as to those entered into or created
after its commencement; but, in so far as it enlarges the duty owed by an
occupier beyond the common duty of care, it shall have effect only in relation
to obligations which are undertaken after the commencement or which are renewed
by agreement (whether express or implied) after that commencement.

4. Implied term in contracts.

(1) Where persons enter or use, or bring or send goods to, any premises in
exercise of a right conferred by contract with a person occupying or having
control of the premises, the duty he owes them in respect of dangers due to the
state of the premises or to things done or omitted to be done by them, in so far
as the duty depends on a term to be implied in the contract by reason of its
conferring that right, shall be the common duty of care.

(2) The foregoing subsection shall apply to fixed and moveable structures as
it applies to premises.

(3) This section does not affect the obligations imposed on a person by or by
virtue of any contract for the hire of, or for the carriage for reward of
persons or goods in, any vehicle, vessel, aircraft or other means of transport,
or by virtue of any contract of bailment.

(4) This section does not apply to contracts entered into before the
commencement of this Act.

OCCUPIERS’ LIABILITY ACT 1984

1. Duty of occupier to persons other than his visitors

(1) The rules enacted by this section shall have effect, in place of the
rules of the common law, to determine-
(a) whether any duty is owed by a person as occupier of premises to persons
other than his visitors in respect of any risk of their suffering injury on the
premises by reason of any danger due to the state of the premises or to things
done or omitted to be done on them; and
(b) if so, what that duty is.

(2) For the purposes of this section, the persons who are to be treated
respectively as an occupier of any premises (which, for those purposes, include
any fixed or movable structure) and as his visitors are-
(a) any person who owes in relation to the premises the duty referred to in
section 2 of the Occupiers’ Liability Act 1957 (the common duty of care), and
(b) those who are his visitors for the purposes of that duty.

(3) An occupier of premises owes a duty to another (not being his visitor) in
respect of any such risk as is referred to in subsection (1) above 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 (in either case, whether the other has lawful authority for being in that
vicinity or not); 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.

(4) Where, by virtue of this section, an occupier of premises owes a duty to
another in respect of such a risk, the duty is to take such care as is
reasonable in all the circumstances of the case to see that he does not suffer
injury on the premises by reason of the danger concerned.

(5) Any duty owed by virtue of this section in respect of a risk may in an
appropriate case, 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.

(6) No duty is owed by virtue of this section to any person in respect of
risks willingly accepted as his by that person (the question whether a risk was
so accepted to be decided on the same principles as in other cases in which one
person owes a duty of care to another).

(7) No duty is owed by virtue of this section to persons using the highway,
and this section does not affect any duty owed to such persons.

(8) Where a person owes a duty by virtue of this section, he does not, by
reason of any breach of the duty, incur any liability in respect of any loss of
or damage to property.

(9) In this section-
“highway” means any part of a highway other than a ferry or waterway;
“injury” means anything resulting in death or personal injury,
including any disease and any impairment of physical or mental condition; and
“movable structure” includes any vessel, vehicle or aircraft.

2. Application to Crown

Section 1 of this Act shall bind the Crown, but as regards the Crown’s
liability in tort shall not bind the Crown further than the Crown is made liable
in tort by the Crown Proceedings Act 1947.

DEFECTIVE PREMISES ACT 1972

1. Duty to build dwellings properly.

(1) A person taking on work for or in connection with the provision of a
dwelling (whether the dwelling is provided by the erection or by the conversion
or enlargement of a building) owes a duty-
(a) if the dwelling is provided to the order of any person, to that person; and
(b) without prejudice to paragraph (a) above, to every person who acquires an
interest (whether legal or equitable) in the dwelling;
to see that the work which he takes on is done in a workmanlike or, as the case
may be, professional manner, with proper materials and so that as regards that
work the dwelling will be fit for habitation when completed.

(2) A person who takes on any such work for another on terms that he is to do
it in accordance with instructions given by or on behalf of that other shall, to
the extent to which he does it properly in accordance with those instructions,
be treated for the purposes of this section as discharging the duty imposed on
him by subsection (1) above except where he owes a duty to that other to warn
him of any defects in the instructions and fails to discharge that duty.

(3) A person shall not be treated for the purposes of subsection (2) above as
having given instructions for the doing of work merely because he has agreed to
the work being done in a specified manner, with specified materials or to a
specified design.

(4) A person who-
(a) in the course of a business which consists of or includes providing or
arranging for the provision of dwellings or installations in dwellings; or
(b) in the exercise of a power of making such provision or arrangements
conferred by or by virtue of any enactment;
arranges for another to take on work for or in connection with the provision of
a dwelling shall be treated for the purposes of this section as included among
the persons who have taken on the work..

(5) Any cause of action in respect of a breach of the duty imposed by this
section shall be deemed, for the purposes of the Limitation Act 1939, the Law
Reform (Limitation of Actions, etc.) Act 1954 and the Limitation Act 1963, to
have accrued at the time when the dwelling was completed, but if after that time
a person who has done for or in connection with the provision of the dwelling
does further work to rectify the work he has already done, any such cause of
action in respect of that further work be deemed for those purposes to have
accrued at the time when the further work finished.
[The references in s. 1(5) should now be read as to the Limitation Act 1980. See
the Limitation Act, s. 40(2); the Interpretation Act 1978, s. 17(2).]

2. Cases excluded from the remedy under section 1.

(1) Where –
(a) in connection with the provision of a dwelling or its first sale or letting
for habitation any rights in respect of defects in the state of the dwelling are
conferred by an approved scheme to which this section applies on a person having
or acquiring an interest in the dwelling; and
(b) it is stated in a document of a type approved for the purposes of this
section that the requirements as to design or construction imposed by or under
theme have, or appear to have, been substantially complied with in relation to
the dwelling;
no action shall be brought by any person having or acquiring an interest in the
dwelling for breach of the duty imposed by section 1 above in relation to the
dwelling.

(2) A scheme to which this section applies-
(a) may consist of any number of documents and any number of agreements or other
transactions between any number of persons; but
(b) must confer, by virtue of agreements entered into with persons having or
acquiring an interest in the dwellings to which the scheme applies, rights on
such persons in respect of defects in the state of the dwellings.

(3) In this section “approved” means approved by the Secretary of
State, and the power of the Secretary of State to approve a scheme or document
for the purposes of this section shall be exercisable by order, except that any
requirements as to construction or design imposed under a scheme to which this
section applies may be approved by him without making any order or, if he thinks
fit, by order.

(4) The Secretary of State-
(a) may approve a scheme or document for the purposes of this section with or
without limiting the duration of his approval; and
(b) may by order revoke or vary a previous order under this section or, without
such an order, revoke or vary a previous approval under this section given
otherwise than by order.

(5) The production of a document purporting to be a copy of an approval given
by Secretary of State otherwise than by order and certified by an officer of the
Secretary of State to be a true copy of the approval shall be conclusive
evidence of the approval, and without proof of the handwriting or official
position of the person purporting to sign the certificate.

(6) The power to make an order under this section shall be exercisable by
statutory instrument which shall be subject to annulment in pursuance of a
resolution by either House of Parliament.

(7) Where an interest in a dwelling is compulsorily acquired-
(a) no action shall be brought by the acquiring authority for breach of the duty
imposed by section 1 above in respect of the dwelling; and
(b) if any work for or in connection with the provision of the dwelling was done
otherwise than in the course of a business by the person in occupation of the
dwelling at the time of the compulsory acquisition, the acquiring authority and
not that person shall be treated as the person who took on the work and
accordingly as owing that duty.

3. Duty of care with respect to work done on premises not abated by disposal of premises.

(1) Where work of construction, repair, maintenance or demolition or any
other work is done on or in relation to premises, any duty of care owed, because
of the doing of the work, to persons who might reasonably be expected to be
affected by defects in the state of the premises created by the doing of the
work shall not be abated by the subsequent disposal of the premises by the
person who owed the duty.

(2) This section does not apply-
(a) in the case of premises which are let, where the relevant tenancy of the
premises commenced, or the relevant tenancy agreement of the premises was
entered into, before the commencement of this Act;
(b) in the case of premises disposed of in any other way, when the disposal of
the premises was completed, or a contract for their disposal was entered into,
before the commencement of this Act; or
(c) in either case, where the relevant transaction disposing of the premises is
entered into in pursuance of an enforceable option by which the consideration
for the disposal was fixed before the commencement of this Act.

4. Landlord’s duty of care in virtue of obligation or right to repair premises demised.

(1) Where premises are let under a tenancy which puts on the landlord an
obligation to the tenant for the maintenance or repair of the premises the
landlord owes to all persons who might reasonably be expected to be affected by
defects in the state of the premises a duty to take such care as is reasonable
in all the circumstances to see that they are reasonably safe from personal
injury or from damage to their property caused by a relevant defect.

(2) The said duty is owed if the landlord knows (whether as the result of
being notified by the tenant or otherwise) or if he ought in all the
circumstances to have known of the relevant defect.

(3) In this section “relevant defect” means a defect in the state
of the premises existing at or after the material time and arising from, or
continuing because of, an act or omission by the landlord which constituted or
would if he had had notice of the defect, have constituted a failure by him to
carry out his obligation to the tenant for the maintenance or repair of the
premises; and for the purposes of the foregoing provision “the material
time” means-
(a) where the tenancy commenced before this Act, the commencement of this Act;
and
(b) in all other cases, the earliest following times, that is to say-
(i) the time when the tenancy commences;
(ii) the time when the tenancy agreement is entered into;
(iii) the time when possession is taken of the premises in contemplation of the
letting.

(4) Where premises are let under a tenancy which expressly or impliedly gives
the landlord the right to enter the premises to carry out any description of
maintenance or repair of the premises, then, as from the time when he first is,
or by notice or otherwise can put himself, in a position to exercise the right
and so long as he is or can put himself in that position, he shall be treated
for the purposes of subsections (1) to (3) above (but for no other purpose) as
if he were under an obligation to the tenant for that description of maintenance
or repair of the premises; but the landlord shall not owe the tenant any duty by
virtue of this subsection in respect of any defect in the state of the premises
arising from, or continuing because of, a failure to carry out an obligation
expressly imposed on the tenant by the tenancy.

(5) For the purposes of this section obligations imposed or rights given by
any enactment in virtue of a tenancy shall be treated as imposed or given by the
tenancy.

(6) This section applies to a right of occupation given by contract or any
enactment and not amounting to a tenancy as if the right were a tenancy, and
“tenancy” and cognate expressions shall be construed accordingly.

5. Application to Crown.

This Act shall bind the Crown, but as regards the Crown’s liability in tort
shall not bind the Crown further than the Crown is made liable in tort by the
Crown Proceedings Act 1947.

6. Supplemental.

(1) In this Act: “disposal”, in relation to premises, includes a
letting, and an assignment or surrender of a tenancy, of the premises and the
creation by contract of any other right to occupy the premises, and
“dispose” shall be construed accordingly; “personal injury”
includes any disease and any impairment of a person’s physical or mental
condition …

(2) Any duty imposed by or enforceable by virtue of any provision of this Act
is in addition to any duty a person may owe apart from that provision.

(3) Any term of an agreement which purports to exclude or restrict, or has
the effect of excluding or restricting, the operation of any of the provisions
of this Act, or any liability arising by virtue of any such provision, shall be
void.


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