5.2 Occupiers' Liability Lecture
Occupiers’ Liability Act 1957
The Occupiers’ Liability Act 1957 dictates the duty that an occupier owes to lawful visitors (as per section 1(1)). There are three key definitions which are relevant to applying the Act:
- Defining ‘Occupier’:
The act does not provide a definition for ‘occupier’, since the term is discussed widely in the applicable common law. An occupier is simply a party who exercises an element of control over premises, as per Wheat v E Lacon & Co .
Whilst the definition doesn’t depend on legal ownership, legal owners will usually be regarded as having a degree of control necessary to regard them as occupiers, Harris v Birkenhead .
- Defining ‘Premises’:
There exist several peripheral issues here. Section 1(3)(a) of the Act notes that it is not just land and buildings which might be considered premises, but vehicles, vessels and aircraft.
Temporary and mobile structures are included under this definition, Wheeler v Copas .
- Defining ‘Lawful Visitors’:
The law splits visitors who are protected by the OLA 1957 into three categories:
Those with express permission to visit are those who have been invited. Occupiers may limit the extent of the invite in terms of place, behavior or time. Any visitor who deviates from these instructions will be considered a trespasser and lose protection under this act, The Carlgarth .
Those with implied permission include those whose presence is assumed to be unobjectionable to the occupier. This permission may also be limited and this will again make the visitor a trespasser. If an occupier knows their land is being regularly trespassed, but does nothing to prevent this, they may be held to give implied permission, Lowery v Walker .
Those who have a lawful right of entry may enter regardless of the occupier’s wishes under section 2(6) of the Act. Such visitors are regarded as lawful under the act.
Occupiers’ Duty of Care
The relevant duty of care under section 2(2) OLA 1957 is that an occupier must ‘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.’
The Act provides for two special sorts of visitors:
- Section 2(3)(a) warns that children can be expected to be less careful than adults and a greater level of care may be required to keep them from harm. The common law balances the responsibilities of parents and occupiers in this regard, Phipps v Rochester Corporation .
- Section 2(3)(b) explains that occupiers can assume that skilled visitors will have a greater awareness of risks and precautions, General Cleaning Contractors v Christmas . However, the occupier must still act reasonably, Salmon v Seafarer Restaurants .
As per section 2(4)(a), a warning may fulfill the occupier’s duty, but only where they enable the visitor to be reasonably safe.
It is normally not possible to attribute the actions of an independent contractor to their employer, but under section 2(4)(b), liability may arise where;
- It was unreasonable to entrust the work to an independent contractor in the first place.
- The occupier failed to take reasonable steps to ensure the independent contractor was competent.
- The occupier has failed to take reasonable steps to check the work of an independent contractor, Woodward v Mayor of Hastings.
There are three commonly encountered defences when dealing with OLA 1957: Consent, section 2(5); contributory negligence; and exclusion clauses.
Occupiers’ Liability Act 1984
OLA 1984 provides the basis for the duty that an occupier has towards those who are not lawful visitors. This includes trespassers, those exercising a private right of way and those who have access covered by right to roam legislation.
The primary difference between this and the previous act is the conditions required before a duty of care comes into existence:
- Defining ‘Trespasser’:
Someone who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to, Robert Addie & Sons v Dumbreck .
- The Duty of Care Towards Trespassers:
Section 1(3) states three criteria that must arise before a duty is established. The occupier must be aware of the hazard, or have reasonable grounds to believe it exists. The occupier must know or have reasonable grounds to believe that a trespasser is in the vicinity of the danger. Finally the relevant risk must be one which the occupier would reasonably be expected to protect against, Young v Kent County Council .
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