Lecture # 6 - VLCvlc.com.pk/Law of Tort LOT/LOT 6 Occupiers Liability.pdf · 2016-01-10 · ©VLC...

©VLC Publishers www.vlc.com.pk

Lecture # 6

Occupier’s Liability

By: Salik Aziz Vaince

[0313-7575311]

Tort Liability For Premises

Introduction

In law, the tort liability for premises explains that land owners had no liability to other persons who

were being accidently hurt or injured while passing in, through or over their land.

This section of law describes the duties imposed by the law of tort on occupiers in relation to the

maintenance and use of their premises. Occupiers have a duty to maintain the premises safely for the

benefit of third parties on or outside premises.

Occupiers' liability generally refers to the duty owed by land owners to those who come onto their

land.

However, the duty imposed on land owners can extend beyond simple land ownership and in some

instances, the landowners may transfer the duty to others, hence the term occupier rather than

owner.

The term occupier itself is misleading since physical occupation is not necessary for liability to arise.

Occupiers' liability is perhaps a distinct form of negligence in that there must be a duty of care and

breach of duty, causing damage. The rules of remoteness apply to occupier’s liability in the exact same

way that they apply to negligence claims.

Liability can arise on occupiers for omissions since their relationship gives rise to duty to take action to

ensure the reasonable safety of visitors.

The law in this area is now statutory and is governed by the 1957 and 1984 Occupiers’ Liability Acts.

The 1957 and 1984 Acts replaced a somewhat complex regime of common law, distinct from that

developed from Donoghue v Stevenson, under which an occupier owed different standards of duty

depending on the status of the person who came onto his land.

Those entering under a contract were owed the highest duty, while progressively lower duties were

owed to those entrants the law classified as invitees, licencees or trespassers.

The position today is that the Occupiers’ Liability Act 1957 governs liability to lawful visitors and the

1984 Act governs the duty owed to those entrants loosely referred to as ‘trespassers’.

The occupiers also must ensure that the use of premises did not cause nuisance to other people.

It is very important for business organisation to consider the tort liability for premises because

business premises visited often by large number of people every day and it will give a big impact to the

business occupiers. So, if the business occupiers receive a negative impact, the business activities will

definitely may be potentially hazardous.


Common law before The Occupiers Liability Act 1957

Though the law of occupiers' liability has been regulated by statute since 1957, it is still necessary to

understand the pre-existing common law as the concepts contained in the statute were developed

first by the cases. The common law was complicated and not entirely just as it required the

categorization of entrants onto property into one of three or four categories. The duty of the occupier

varied according to which category the entrant fell into.

At common law the duties of an occupier to the persons were cast in the following order:

1. Entry under Contract: Entry into premises could be governed by contract, and that contract might

have specified a very high level of liability for any defect in the premises. But such cases were very

rare.

2. Invitee: In the absence of any express contractual provision, the invitee had the highest level of

protection. P was an invitee where O had a material interest in the purpose for which P entered, as e.g.

a shopkeeper in relation to a person entering to buy goods. In such a case, O was liable if he failed to

use reasonable care to prevent damage to P from any unusual danger of which O knew or ought to

have known. Persons such as police officers entering premises under lawful authority were normally

treated as invitees.

3. Licensee: Any other person on the premises with O’s permission, express or implied was a licensee.

e.g., a person entering D’s shop to ask the way to the railway station. Here, O’s liability extended only

to concealed dangers or traps known to O but not to P. Social visitors (in whom O had no “material”

interest) were treated as licensees.

4. Trespasser: At this stage, O was under no liability at all for injury resulting from O’s negligence - the

only duty towards trespassers was not to injure them intentionally or recklessly.

In the 1950’s the common law was considered to be unsatisfactory, on account of:

1. The artificial and often arbitrary nature of the distinction between licensee and invitee,

2. The “draconian” (harsh) decision that an occupier owed no duty of care in respect of negligent

injury to a trespasser and

3. The occupier owed no duty to a visiting workman who continued to work though aware of a

danger.

As a result Parliament enacted the Occupier’s Liability Act 1957 and subsequently the Occupier’s

Liability Act 1984.

With rare exceptions, persons entering premises now fall into only THREE legal categories - each with

its own level of liability.

Present categories are:

Persons entering under a contract which contains an express provision imposing a very high standard

of care (now less significant than the formerly ;)

Visitors coming under the 1957 Act, and persons entering as non-visitors within the 1984 Act.

Robert Addie and Sons v Dumbreck [1929] AC 358

Facts: The defendant owned View Park Colliery which was situated in a field adjacent to a road. There

was a fence around the perimeter of the field although there were large gaps in the fence. The field


was frequently used as a short cut to a railway station and children would use it as a playground. The

defendant would often warn people off the land but the attempts were not effective and no real

attempt was made to ensure that people did not come onto the land. A child came on to the land and

was killed when he climbed onto a piece of haulage (The activity of transporting goods by truck)

apparatus.

Held: No duty of care was owed to trespassers to ensure that they were safe when coming onto the

land. The only duty was not to inflict harm willfully.

Viscount Dunedin: "In the present case, had the child been a licensee, I would have held the defenders

liable; secus if the complainer had been an adult. But, if the person is a trespasser, then the only duty

the proprietor has towards him is not maliciously to injure him; he may not shoot him; he may not set

a spring gun, for that is just to arrange to shoot him without personally firing the shot. Other

illustrations of what he may not do might be found, but they all come under the same head—injury

either directly malicious or an acting so reckless as to be tantamount to malicious acting."

Invitee can be broken down into two: contractual invitee (i.e. in a hotel) or invitee (i.e. customer in a

shop), and the duty to make the premises safe is owed only to the contractual invitee. The status of the

customer was addressed in:

Indermaur v Dames (1866) LR 1 CP 274

Where it was said that his protection does not depend upon the fact of a contract being entered during

the stay of the customer in the shop, but rather that the customer has come into the shop because of a

tacit invitation by the shopkeeper.

A customer is entitled to protection against unusual damage of which the occupier knows or ought to

know. 'Invitee' is a legal term which means that the entrant is on the premises for a purpose in which

the occupier has some concern, whether pecuniary, material or business interest. Thus inviting a friend

to your house would not mean that they are an invitee but rather a licensee.

It was often the case that a trespasser would argue they were an implied licensee as this meant they

were owed a higher duty of care. The rule was different for children who, according to the court, could

know nothing of the law of trespass or license.

Definition of occupiers

Basically, occupiers is a person who is in physical possession of premises or a person who has

responsibility for, and control over, the condition of premises, the activities conducted on those

premises and the persons allowed to enter those premises.

From the definition, we can generally say that occupiers of premises are the owner of the land. The

occupier can be more than one at a time. According to Wheat V Lacon in year 1966, an occupier was

defined as the person in control of the premises at the time of the accident.

Wheat v Lacon [1966] AC 552 House of Lords

Facts: The claimant and her family stayed at a public house, The Golfer’s Arms in Great Yarmouth, for a

holiday. Unfortunately her husband died when he fell down the stairs and hit his head. The stairs were

steep and narrow. The handrail stopped two steps from the bottom of the stairs and there was no bulb

in the light. The claimant brought an action under the Occupiers Liability Act 1957 against the Brewery


company, Lacon, which owned the freehold of The Golfer’s Arms and against the Managers of the Pub,

Mr & Mrs. Richardson, who occupied the pub as a licensee.

Held: Both the Richardsons and Lacon were occupiers for the purposes of the Occupiers Liability Act

1957 and therefore both owed the common duty of care. It is possible to have more than one occupier.

The question of whether a particular person is an occupier under the Act is whether they have

occupational control. Lacon had only granted a license to the Richardsons and had retained the right to

repair which gave them a sufficient degree of control. There is no requirement of physical occupation.

However, it was found that Lacon was not in breach of duty since the provision of light bulbs would

have been part of the day to day management duties of the Richardsons. Since the Richardsons were

not party to the appeal the claimant’s action failed.

Lord Denning: “wherever a person has a sufficient degree of control over premises that he ought to

realise that any failure on his part to use care may result in injury to a person coming lawfully there,

then he is an " occupier " and the person coming lawfully there is his " visitor ": and the " occupier " is

under a duty to his " visitor " to use reasonable care. In order to be an “occupier “it is not necessary for

a person to have entire control over the premises. He need not have exclusive occupation. Suffice it

that he has some degree of control. He may share the control with others. Two or more may be

“occupiers". And whenever this happens, each is under a duty to use care towards persons coming

lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable

to a visitor who is injured in consequence of his failure, but each may have a claim to contribution from

the other.”

Harris V Birkenhead Corp in 1976

Facts: The claimant Julie Harris was 4 years old when she wandered off from a children’s play park with

her friend. They entered a derelict house which was due for demolition. The house had not been

secured and the door was open. They went upstairs and Julie sustained serious injury when she fell

from a window. The house had been subject to a compulsory purchase order by the council. The house

had been owned by a private landlord and the tenant was offered alternative accommodation by the

council. The tenant informed the council that she did not want to take up the offer of accommodation

and made her own arrangements and left the property. The council served 14 days’ notice on the

owner of their intention to take possession of the property, but never actually took physical possession

at the expiry of the 14 days.

Held: The Council had the legal right to take possession to secure the property, actual physical

occupation was not required to incur liability as an occupier. The council was therefore liable.

Definition of premises

On the other hand, premises are widely defined by the Act and cover not only buildings and open

spaces but also any fixed or moveable structure which include any vessel, vehicle or aircraft.

For example, there are many types of premises. Some of the examples include:

firstly, staging, scaffolding and similar structures erected on land whether affixed to the land or not;

secondly, poles, standards, pylons and wires used for the purpose of transmission of electric power or

communications or transportation of passengers, whether or not they are used in conjunction with the

supporting land;


thirdly, railway locomotives and railway cars; fourthly, ships, and lastly trailers used for, or designed

for use as, residences, shelters or offices

Based on the case study, the premises that can be assumed were the hotel. It is because, the hotel is

the building and open spaces where John was invited to the birthday party.

To give a clear view, this is some example of the premises as well:

- Football stadium

- Lift

- Ladder

- Ship

- Hospital

- House

- Pharmacy

- Portable caravans

This has been held to include a wide variety of things including a large excavating machine in Bunker V

Charles Brand in year 1969.

Bunker V Charles Brand in 1969

The visitor’s knowledge of dangerous machine that he was to modify for the occupiers did not absolve

the occupiers of liability under section 2(4) and (5), when the visitors fell into rollers.

Based on the scenario, the five star hotels it is the premises as well as the occupiers. The hotel building

is the location for Vincent birthday party where large number of people will come and visit.

Definition of visitors

The visitors can be describe as a person who is an entrant as of right, a person who is lawfully present

on premises by virtue of an express or implied term of a contract, any other person whose presence on

premises is lawful, or a person whose presence on premises becomes unlawful after the person's entry

on those premises and who is taking reasonable steps to leave those premises. In addition, the visitor

also is not a trespasser.

Based on the case scenario, John is the visitors for the five star hotels as he was invited by his friends

Vincent for birthday party. John was invited to the birthday party and the birthday party will be

conducted at the banquet hall.

Greenlagh V BRB in 1969

Facts: C, a cyclist, suffered an injury to his right leg by allegedly striking his foot against the edge of a

concrete trench whilst cycling down a track, which passed through D’s yard. C alleged that D owned

and was an occupier of the track, pursuant to the Occupiers’ Liability Acts (OLA) 1957/1984. In the

alternative, C alleged that D arranged for work to be done in the area which created a danger, thereby

causing C’s injury. D denied liability on the basis that the route taken by C was a public right of way and

therefore not a visitor within the OLA. Further, D denied any misfeasance.

The issue of whether the track was a public right of way was dealt with as a preliminary issue at trial.

D’s evidence confirmed that for at least the past 20 years the track had been frequently used by

members of the public; and that for 25 years its premises had been in the original place or site it had

not interfered with the track.

Held: The track had been enjoyed by members of the public for in excess of 20 years, and therefore

section 31 of the Highways Act 1980 applied. C therefore used the track ‘as of right’ rather than as a

visitor. The principle in Gautret v Egerton (1867), as applied in McGeown v Northern Ireland Housing

Executive [1995] 1 AC 233 was therefore relevant. The principle established that if a way is dedicated


to the public, it should be taken as it is, inclusive of any ruts or holes, etc. However, if D dug a pit in

such a public way, liability could attach for the consequences. Conversely, a lack of action by D would

not attract liability. In addition, the case of Greenhalgh v British Railways Board [1969] 2 QB 286, states

that those crossing a public or private right of way are not invitees or visitors. As a result, C’s claim

under the OLA failed.

As to C’s allegation that by arranging for British Gas/Transco to lay a gas pipe in 1996, a disparity in

levels between the backfilled trench and concrete surface was created, the court held that it was for C

to prove that such backfilling gave rise to a dangerous level of disparity between surface levels. C was

required to prove that the disparity resulted from an act of D or their contractors. The court held that

there was no evidence of a positive act of misfeasance by D, which caused C’s fall and injury, and

therefore C’s claim was struck out.

McGeown v Northern Ireland Housing Executive [1994] 3 All ER 53 House of Lords

The claimant was injured when she tripped in a hole on land owned by the defendant. The land was a

public right of way. It was held that the defendant was not liable as the claimant was not a lawful

visitor under the Occupiers Liability Act 1957 because she was exercising a public right of way.

The occupiers liability to people on the premises

The occupier's liability is defined as a liability of a person who controls land or building in regards to

damages caused to others who enter there on. The occupier must take reasonable care to ensure that

the visitor is reasonably safe for the purpose for which the visitor is on the land.

The liability applicable to an occupier of premises to visitor can be described when the occupiers take a

prevention steps in order to avoid any injuries and damages. Hence, the liability applicable to the

occupier for the visitors can be divided into two ways which are from the negligence activities and

dangerous premises.

Negligence activities

In negligence activities, the occupiers who carry out activities on their land without taking reasonable

care may be liable under the general principles of negligence.

Ogwo V Taylor in 1987

Facts: The defendant negligently set the roof space on fire while using a blowtorch to burn off paint

from weatherboarding on his house. The claimant, a firefighter was injured in the ensuing

conflagration.

Held: the defendant was liable as the claimant's injuries were a reasonably foreseeable consequence

of the defendant's negligent behaviour.

Dangerous premises

In addition, the occupiers also must consider the liability applicable for the dangerous premises. The

occupiers have a legal duty to maintain the structure of their premises in a reasonably safe condition.

This part of law have is covered by statute. The acts involved are Occupiers Liability Act 1957 and

Occupiers Liability Act 1984. The application of the act is subject to section 3 (4), and sections 4 and 9,

this Act determines the care that an occupier is required to show toward persons entering on the

premises in respect of dangers to them, or to their property on the premises, or to the property on the


premises of persons who have not themselves entered on the premises, that are due to the state of

the premises, or to anything done or omitted to be done on the premises, and for which the occupier is

responsible by law.

The extent of the occupiers duty of care

Duty of care to the visitors

The occupier of premises owes a duty to take that care that in all the circumstances of the case is

reasonable to see that a person, and the person's property, on the premises, and property on the

premises of a person, whether or not that person personally enters on the premises, will be

reasonably safe in using the premises.

The occupiers of the premise must concern about the visitors for example the safety of the visitors. It

is need to be considered as the occupiers noticed that the duty of care is limited to taking reasonable

care to ensure reasonable safety and only for the purpose of that visit. It means that, the occupiers

consent to a visitor's presence is limited by the purpose of the visit.

Applicable of common duty of care

The common duty of care is applied when there is a relation to:

1. The condition of the premises

2. Activities on the premises

3. The conduct of third parties on the premises

Simms V Leigh RFC in 1969

The visitor was injured by hitting concrete wall surrounding rugby field. The occupiers not liable as

injury foreseeable but so improbable that it was not necessary to guard against it. Occupiers also

accepted risk of playing on field complying with bye-laws.

Cunningham v Reading FC in 1991

The occupiers liable to police injured by concrete loosened from terraces. The occupiers neglected to

take precautions against clearly foreseeable acts of violent supporters.

Children

An occupier must be prepared for children to be less careful than adults. Therefore, if an occupier

admits children to the premises the child visitor must be reasonably safe.

Glasgow Corp V Taylor in 1922

Facts: The seven year old died after eating poisonous berries in park. The occupiers knew of the berries

but took no precautions against children.

Held: good cause of action to proceed to trial.

Pearson V Coleman Bros in 1948

The seven year old girl left circus tent to find toilet; walked past lion’s cage in separate zoo enclosure

and mauled (Injure badly by beating). The occupier was liable as the prohibited area had not been

adequately marked off.

Phipps V Rochester Corp in 1955


The occupier is not liable to boy aged 5 who fell into trench while walking across open ground with his

sister aged 7. No breach of duty occurred as reasonable parents will not permit young children to be

sent into danger without protection.

Titchener v BRB in 1983

There is no duty owed to 15 year old walking across a railway line at night, hit by train. The visitors

knew of the line, dangers involved and the need to look out for trains.

Jolley v Sutton LBC in 2000

The occupiers was liable to boy injured repairing boat abandoned on council land. The occupiers knew

of boat and that it was a danger.

Common calling

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.

Roles v Nathan in 1963

Facts: The claimants were asphyxiated (Deprive of oxygen and prevent from breathing) by fumes when

they carried out flue repairs in a boiler room while the boiler was alight.

Held: the occupier was not liable for their deaths; their knowledge and experience of this kind of work

should have made them extinguish the boiler before starting work.

Salmon v Seafarer Restaurant in 1983

The occupier owed same duty of care to fireman attending premises to extinguish a fire, as he owed to

other visitors under s2 but the fireman was expected to exercise the skill of an ordinary fireman. The

occupier was liable.

Warnings

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.

White v Blackmore in 1972

One notice mentioned: "Warning to the public. Motor racing is dangerous ". This warning was effective

when competitor killed whilst watching a race from the track.

Cotton v Derbyshire Dales DC in 1994

Times LR 20 June - The occupier did not have to warn about dangerous cliffs on a high path. The danger

was obvious to visitors.

Staples v West Dorset DC in 1995

Times LR 28 April - The occupiers did not have to warn about algae which might be slippery.

Independent contractors

Where a danger 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 will not to be answerable for the danger if in all the circumstances he acted reasonably in

entrusting the work to an independent contractor and took such steps (if any) as he reasonably ought

to in order to satisfy himself that the contractor was competent and the work was properly done.


Haseldine v Daw in 1941

The engineer was liable to the visitor injured by crashing lift in a block of flats. The occupier was not

liable.

Woodward v Mayor of Hastings in 1945

The school governor was liable for negligent cleaning of steps by school cleaner.

Defences

In defences, section 2(5) has provides that while knowledge of danger does not deprive the visitor of a

remedy, the occupier will not be liable in respect of risks willingly accepted as his by the visitor (volenti

non fit injuria).

Burnett v BWB in 1973

The visitors injured by rope towing a barge he was on, snapping. A warning notice was inapplicable as

he was an employee. Volenti was no defence as there was no free and voluntary agreement to the risk

of injury.

Damages may be reduced, under the Law Reform (Contributory Negligence) Act 1945, where the

visitor fails to take reasonable care for his own safety.

Revill v Newbery in 1996

This is a case involving a trespasser who was two-thirds contributory negligent.

Exclusion of liability

The occupier can extend, exclude, restrict or modify the extent of his liability to visitors by agreement

or otherwise, insofar as he is free to do so according to section 2(1).

Where premises are occupied for business purposes:

• Any attempt to exclude liability for death or personal injury caused by negligence, including

breach of the common duty of care under the 1957 Act, is void (Unfair Contract Terms Act

1977, 2(1).

• Any attempt to exclude liability for property damage will be subject to the reasonableness test

(Unfair Contract Terms Act 1977, section 2(2).

Answers on can the John Parents take an action on the hotel

According to the case given, John was invited by his friend, Vincent for his 21st birthday party at five

star hotel. This statement have clearly state that John was the visitor and the occupier is the five star

hotel. On the other hand, John had brought together his younger brother name as Alex to the party,

and we can recognize that Alex was a trespasser as he was not invited to the party.

The crisis occurred when while walking around the lobby, the younger brother Alex had stumble over a

flower pot and fell. The accident had caused Alex suffered minor bruises and fractured his wrist bone.

The parents of the two brothers would like to sue the hotel management for carelessly placing the

flower pot at the lobby.

After considering the factors and condition of the case given, John's parents cannot sue the hotel

management under occupier's liability. It is because; Alex was only the trespasser at the premises. The

parents cannot sue the hotel management due to privity of contract which only involves John and

hotel management.


It means that, if any accident happens to John, then the parents can sue the hotel under Occupiers

Liability Act 1957 which the statue must be obeyed by the occupiers that is the hotel to provide a duty

of care. Let say if John who suffers the minor bruises and wrist bone fractured, the parents can sue the

hotel because under the Occupiers Liability Act 1957, the occupiers must be responsible of their

visitors safety.

However, in the case given, the person who was injured is Alex. The parents cannot sue the hotel

management as Alex was only a trespasser who was not invited to the party. Therefore, the hotel

management shall not be liable for any damages and injuries happen to trespassers. The hotel

management may only be liable if the injuries and damages happened to the visitors of the premises.

This is due to the hotel management is following the Occupiers Liability Act 1957 and Occupiers

Liability Act 1984.

As the parents is still adamant to sue the hotel management, I would advise the parents to sue the

hotel management following the standard of care in negligence. As in negligence, there is an existence

of a duty to take a reasonable care. The injured visitor will have to prove that the occupier failed to

take reasonably adequate precautions to prevent the injuries or damages. The reasonable action is

determined according to the circumstances. To relate with the case, John parents can sue the hotel

management for misplacing the flower pots at the lobby. It is because, children tend to play around at

the lobby as children usually do not bother their safety and this situation is dangerous for them.

Occupiers Liability Act 1957

Generally, an Occupiers Liability Act 1957 is the act for visitors. This act describe An Act to amend the

law of England and Wales as to the liability of occupiers and others for injury or damage resulting to

persons or goods lawfully on any land or other property from dangers due to the state of the property

or to things done or omitted to be done there, to make provision as to the operation in relation to the

Crown of laws made by the Parliament of Northern Ireland for similar purposes or otherwise amending

the law of tort, and for purposes connected therewith. The Occupier's Liability Act 1957 imposes upon

the occupier a common law duty of care. The 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 standard of care an

occupier is expected to meet is the standard of "a reasonable occupier", no different from the usual

common law negligence standard of care. The common duty of care is already explained above.

The Occupiers Liability Act 1957 imposes a common duty of care on occupiers to lawful visitors. By

virtue of s.1(3)(a), the Act applies not only to land and buildings but also extends to fixed and movable

structures, including any vessel, vehicle or aircraft. The protected damage under the Occupiers Liability

Act 1957 includes death, personal injury and damage to property.

Lawful visitors

Lawful visitors to whom occupiers owe the common duty of care for the purposes of the Occupiers

Liability Act of 1957 include:

Invitees - S.1(2) Occupiers Liability Act 1957 - those who have been invited to come onto the land and

therefore have express permission to be there.


Licensees - S.1(2) Occupiers Liability Act 1957 - those who have express or implied permission to be

there. According to S. 1(2) this includes situations where a licence would be implied at common law.

Those who enter pursuant to a contract - s.5(1) Occupiers Liability Act 1957 - For example paying

guests at a hotel or paying visitors to a theatre performance or to see a film at a cinema.

Those entering in exercising a right conferred by law - s.2(6) Occupiers Liability Act 1957 - For example

a person entering to read the gas or electricity metres.

Issues under The Occupiers Liability Act 1957

Who is an occupier?

The Occupiers’ Liability Act 1957 does not define the term occupier but stipulates that the rules of the

common law shall apply (s 1(2)). The test is one of control and not exclusive occupation.

Wheat v Lacon (1966 HL)

Facts: P and her husband were paying guests in a public house owned by a brewery [Lacon] and

managed by Mr. and Mrs. Richardson. P’s husband was killed when he fell down stairs in a part of the

premises used by the Richardsons as a private dwelling. The handrail on the stairs did not reach to the

foot of the stairs. P sued Lacon and the Richardsons for breach of duty under the 1957 Act.”

Held: The House of Lords held that there was nothing to prevent two or more persons from being

occupiers. As Lacon & Co had the legal right to control the flat, they were its occupier, so were liable in

respect of the state of the premises. So, Mr. and Mrs. Richardson were also, as they controlled the

alleged part of the premises under a licence-agreement, had a considerable degree of control.

Ferguson v Welsh [1987] 1 WLR 1553 House of Lords

Facts: Sedgefield District Council, in pursuance of a development plan to build sheltered

accommodation, engaged the services of Mr Spence to demolish a building. It was a term of the

contract that the work was not to be sub-contracted out. In breach of this term, Mr Spence engaged

the services of the Welsh brothers to carry out the demolition who in turn engaged the services of Mr

Ferguson to assist. Mr Ferguson suffered serious injury resulting in permanent paralysis when a wall he

was standing on collapsed due to the unsafe practices operated by the Welsh brothers. He brought an

action against the Council, Mr Spence and the Welsh brothers. The trial judge held that the Welsh

Brothers were liable but that Mr Spence and the Council were not liable. Mr Ferguson appealed against

the finding against the Council since the Welsh Brothers (or Mr Spence) had the funds or insurance to

meet liability.

Held: The appeal was dismissed. Mr Ferguson was a lawful visitor despite the clause forbidding sub-

contracting since Mr Spence would have apparent or ostensible authority to invite him on to the land.

However, the danger arose from the unsafe system of work adopted by the Welsh Brothers not the

state of the premises. Whilst there was evidence that Mr Spence had sub-contracted demolition work

to those executing unsafe practices on previous occasions, there was no evidence that the Council

were aware of this.

Bailey V Armes (1999)

A couple were not liable under the Occupiers’ Liability Acts for injury caused to a friend of their son

who played on a neighbouring roof with him as they were not in occupation of the roof.


Merely control over the main means of access to premises belonging to another is not sufficient

control to make out occupier status.

Whether occupational control exists is a question of degree

Revill v Newbery [1996] 2 WLR 239 Court of Appeal

Facts: Mr Newbery was a 76 year old man. He owned an allotment which had a shed in which he kept

various valuable items. The shed was subject to frequent breaking and vandalism. Mr Newbery had

taken to sleeping in his shed armed with a 12 bore shot gun. Mr Revill was a 21 year old man who on

the night in question, accompanied by a Mr Grainger, and went to the shed at 2.00 am in order to

break in. Mr Newbery awoke, picked up the shot gun and fired it through a small hole in the door to

the shed. The shot hit Mr Revill in the arm. It passed right through the arm and entered his chest. Both

parties were prosecuted for the criminal offences committed. Mr Revill pleaded guilty and was

sentenced. Mr Newbery was acquitted of wounding. Mr Revill brought a civil action against Mr

Newbery for the injuries he suffered. Mr Newbery raised the defence of ex turpi causa, accident, self-

defence and contributory negligence.

Held: The Claimants action was successful but his damages were reduced by 2/3 under the Law Reform

(Contributory Negligence) Act 1945 to reflect his responsibility for his own injuries.

On the application of ex turpi causa Neill LJ: "For the purposes of the present judgment I do not find it

necessary to consider further the joint criminal enterprise cases or the application of the doctrine of ex

turpi causa in other areas of the law of tort. It is sufficient for me to confine my attention to the liability

of someone in the position of Mr. Newbery towards an intruding burglar. It seems to me to be clear

that, by enacting section 1 of the 1984 Act, Parliament has decided that an occupier cannot treat a

burglar as an outlaw and has defined the scope of the duty owed to him. As I have already indicated, a

person other than an occupier owes a similar duty to an intruder such as Mr. Revill. In paragraph 32 of

their 1976 Report the Law Commission rejected the suggestion that there should be no duty at all

owed to a trespasser who was engaged in a serious criminal enterprise."

Ex turpi causa non oritur actio: (Latin for "from a dishonorable cause; an action does not arise") is a

legal doctrine which states that a plaintiff will be unable to pursue legal remedy if it arises in

connection with his own illegal act.

Though the actual decision was made as to OLA 1984, presumably it had the same application in OLA

1957.

AMF International Ltd v Magnet Bowling Ltd (1968)

A contractor undertaking a large building development would be an occupier of the site. An owner may

also be an occupier simultaneously.

Page v Read (1984)

A decorator painting a house would not be an occupier.

Presence of the occupier

Harris v Birkenhead [1976] 1 WLR 279 Court of Appeal

Facts: The claimant Julie Harris was 4 years old when she wandered off from a children’s play park with

her friend. They entered a derelict house which was due for demolition. The house had not been


secured and the door was open. They went upstairs and Julie sustained serious injury when she fell

from a window. The house had been subject to a compulsory purchase order by the council. The house

had been owned by a private landlord and the tenant was offered alternative accommodation by the

council. The tenant informed the council that she did not want to take up the offer of accommodation

and made her own arrangements and left the property. The council served 14 days’ notice on the

owner of their intention to take possession of the property, but never actually took physical possession

at the expiry of the 14 days.

Held: The Council had the legal right to take possession to secure the property, actual physical

occupation was not required to incur liability as an occupier. The council was therefore liable.

Premises

S 1(3)(a) of OLA 1957: “the obligations of a person occupying or having control over any fixed or

moveable structure, including any vessel, vehicle or aircraft;”

Thus, by section 1(3)(a) of the Act, the statutory provisions extend to any fixed or movable structure,

including any vessel, vehicle or aircraft. This is apt to; include not only structures of a permanent

nature but temporary erections such as ladders and scaffolding.

But with regard to “vessels, vehicles and aircraft” the Act would appear to apply only to the structural

state of the premises, so that where injury is caused to a passenger by, say, negligent driving, and the

appropriate cause of action is negligence at common law.

Who are lawful visitors?

The statutory duty is owed only to visitors who, by section 1(2), are those who would, at common law,

have been either invitees or licensees. The common law distinction between these two categories of

entrant is thereby abolished and the vital distinction (which remains unaffected by the Act) is as

between the visitor and the trespasser (see 1984 OLA). No difficulty arises where the occupier

expressly invites or permits another to enter or use his premises, bearing in mind that such invitation

or permission may legitimately be limited either to a particular part of the premises or for a specified

purpose.

S 1(2) provides: “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.”

1. Express permission

Where a person has the permission of an occupier to enter premises such permission may be limited

by time, space, purpose or other circumstances. The Question is, as always, must be approached with

common sense.

Gould V McAulliffe (1941)


A customer of a public house may use its lavatory and remains a lawful visitor while making a

reasonable search of it.

R v Smith and Jones (1976 CA)

When a person who is given permission to enter a building for one purpose and enters for another

purpose (presumably unlawful) he may be treated as a trespasser.

Robson v Hallett (1967)

If a licence is revoked the entrant must be given reasonable time to leave the premises.

Snook v Mannion (1982 DC)

The revocation of the licence must be clear and unambiguous.

Darby v National Trust (2001 CA)

Notice of the prohibition of doing something must be prominently displayed if the prohibited act

would amount to a trespass.

2. Implied Permission

Edwards v Railways Executive [1952] AC 737 House of Lords

Facts: A particular spot on a railway was used as a short cut on a regular basis. The fence was repaired

on several occasions and whenever it was reported to have been interfered with. However, it would be

beaten down by people wishing to use the railway as a short cut. Witness testimony was to the effect

that the fence was in good repair the morning of the incident.

Held: No licence was implied. The Defendant had taken reasonable steps to prevent people coming

onto the railway.

Lord Goddard: "Repeated trespass of itself confers no licence"

1. It is a question of fact whether or not a person’s entry has been impliedly permitted.

2. The onus of proof on the C.

3. Repeated trespass itself confers no licence.

Knowledge of presence does not imply permission

Phipps v Rochester Corporation [1955] 1 QB 450

Facts: A 5 year old boy was walking across some open ground with his 7 year old sister. He was not

accompanied by an adult. He was injured when he fell into a trench. The Corporation were not held

liable as an occupier is entitled to assume that prudent parents would not allow their children to go

unaccompanied to places where it is unsafe.

Devlin J on duty owed to children: “The law recognises a sharp difference between children and adults.

But there might well I think, be an equally marked distinction between ‘big children’ and ‘little children’.

…The occupier is not entitled to assume that all children will, unless they are allured, behave like adults;

but he is entitled to assume that normally little children will be accompanied by a responsible person.

…The responsibility for the safety of little children must rest primarily upon the parents; it is their duty

to see that such children are not allowed to wander about by themselves, or at least to satisfy

themselves that the places to which they do allow their children to go unaccompanied are safe. It would

not be socially desirable if parents were, as a matter of course, able to shift the burden of looking after

their children from their own shoulders to those persons who happen to have accessible pieces of land.”


Knowledge of D is not of itself enough to constitute a licence. There would be a distinction between

toleration and permission. The court followed Edwards.

Tomlinson v Congleton Borough Council [2003] 3 WLR 705 House of Lords

Facts: The defendant owned Brereton Heath Country Park. It had previously been a sand quarry and

they transformed it in to a country park and opened it up for public use. The defendants had created a

lake on the park which was surrounded by sandy banks. In the hot weather many visitors came to the

park. Swimming was not permitted in the lake and notices were posted at the entrance saying

“Dangerous water. No swimming”. However despite this, many people did use the lake for swimming.

Rangers were employed and on occasions sought to prevent swimming but some of the visitors would

be rude to the rangers’ attempts to prevent them and many continued to swim. The claimant was

injured when he dived into shallow water and broke his neck. At the Court of Appeal it was held that

he was a trespasser despite the repeated trespass and inadequate steps to prevent him swimming.

They also stated that the warning signs may have acted as an allurement to macho young men. The

Court of Appeal was of the opinion that since the introduction of the Occupiers Liability Act 1984, the

courts should not strain to imply a licence. There was no appeal on this point and the claimant

conceded that he was a trespasser. The House of Lords was therefore concerned with the application

on the 1984 Act. The Court of Appeal had held that the council were liable but reduced the damages by

2/3 under the Law Reform (Contributory Negligence) Act 1945. The defendant appealed the finding on

liability and the claimant appealed against the reduction.

House of Lords held: The Council was not liable.

No risk arose from the state of the premises as required under s.1(1)(a) Occupiers Liability Act 1984.

The risk arose from the claimant’s own action. He was a person of full capacity who voluntarily and

without pressure or inducement engaged in an activity which had an inherent risk. Even if there was a

risk form the state of the premises, the risk was not one against which the council would reasonably be

expected to offer the claimant some protection under s.1(3)(C). In reaching this conclusion Lord

Hoffman looked at the position if he had not been a trespasser and applied the common duty of care

owed under the Occupiers Liability Act of 1957. He was of the opinion that there was no duty to warn

or take steps to prevent the claimant from diving as the dangers were perfectly obvious. This was

based on the principle of free will and that to hold otherwise would deny the social benefit to the

majority of the users of the park from using the park and lakes in a safe and responsible manner. To

impose liability in this situation would mean closing of many such venues up and down the country for

fear of litigation. He noted that 25-30 such fractures occurred each year nationwide, despite increased

safety measures the numbers had remained constant.

Lord Scott of Foscote agreed with Lord Hoffmann subject to the reservation that since the plaintiff had

been diving in shallow water, not swimming, he had not been in breach of the defendants’ prohibition

and thus not a trespasser.

Rules the same for children but may be a tacit licence

Lowrey v Walker (1911 HL)

Members of the public had for many years used the defendant’s field as a short cut to the railway

station. The defendant had not infrequently prevented them from so doing, but did nothing further


until, without warning, he turned a savage horse in the field. The animal attacked and injured the

plaintiff, who succeeded in his action on the basis that he was a licensee, not a trespasser.

This, and other cases, was decided at a time when trespassers were afforded little or no protection

and, in view of the more favourable treatment which they now receive, the courts may be less

favourably inclined to find an implied licence in a case such as Lowery.

British Railways Board v Herrington [1972] AC 877 House of Lords

Facts: A six year old boy was electrocuted and suffered severe burns when he wondered from a play

park onto a live railway line. The railway line was surrounded by a fence however, part of the fence had

been pushed down and the gap created had been used frequently as a short cut to the park. The

defendant was aware of the gap in the fence which had been present for several months, but had

failed to do anything about it. Under existing authority of Addie v Dumbreck no duty of care was owed

to trespassers. However, the House of Lords departed from their previous decision using the 1966

Practice Statement and held that the defendant railway company did owe a duty of common humanity

to trespassers.

Lord Pearson: "It seems to me that the rule in Addie v. Dumbreck has been rendered obsolete by

changes in physical and social conditions and has become an incumbrance impeding the proper

development of the law. With the increase of the population and the larger proportion living in cities

and towns and the extensive substitution of blocks of flats for rows of houses with gardens or back

yards and quiet streets, there is less playing space for children and so a greater temptation to trespass.

There is less supervision of children, so that they are more likely to trespass. Also with the progress of

technology there are more and greater dangers for them to encounter by reason of the increased use

of, for instance, electricity, gas, fast moving vehicles, heavy machinery and poisonous chemicals. There

is considerably more need than there used to be for occupiers to take reasonable steps with a view to

deterring persons, especially children, from trespassing in places that are dangerous for them.

In my opinion the Addie v. Dumbreck formulation of the duly of occupier to trespasser is plainly

inadequate for modern conditions, and its rigid and restrictive character has impeded the proper

development of the common law in this field. It has become an anomaly and should be discarded."

Entering premises to communicate with occupier does amount to tacit

licence

A person entering with the purpose of communicating with the employer will have implied permission,

for example asking directions, the postman, rounds man, etc.

Implied term in contracts

Section 5(l) of OLA 1984 provides that where a person enters under the terms of a contract with the

occupier there is, in the absence of express provision in the contract, an implied term that the entrant

is owed the common duty of care and, according to Sole v W. J. Hallt Ltd (HC, 1973), he may frame his

claim either in contract or under the 1957 Act. It is further provided by section 3(l) that where a

person, contracts with the occupier on the basis that a third party is to have access to the premises,

the duty owed by the occupier to such third party as his visitor cannot be reduced by the terms, of the

contract to a level lower than the common duty of care. Conversely, if the contract imposes upon the


occupier any obligation which exceeds the requirements of the statutory duty, then the third party is

entitled to the benefit of that additional obligation.

3. Persons with a right to enter

S 2 (6) of OLA 1957: 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.

Permission of the person other than the occupier

Permission of the Employee not the employer

Ferguson v Welsh (1987 HL)

If C is aware, or ought to have been aware, of a prohibition of entry and enters or remains in the

premises, would become a trespasser.

Exercising a private or public right of way does not constitute a licence

Greenhalgh v British Railway Board (1969)

C is exercising a private right of way, is not a ‘visitor’. This has been confirmed by the House of Lords in

the Northern Irish case of McGeown V Northern Ireland Housing Executive (1995 HL).

Holden v White [1982] 2 All ER 328 Court of Appeal

The claimant, a milkman, was injured on the defendant’s land by a manhole cover which broke when

he stepped on it. At the time he was delivering milk to the house of a third party; who had a right of

way across the defendant’s land. It was held that he was not entitled to claim against the defendant

since he was exercising a right of way and was not therefore a lawful visitor of the defendant. A person

using a public right of way is not a visitor.

Statutory exclusion

S 1(4) of OLA 1957: A person entering any premises in exercise of rights conferred by virtue of –

(a) section 2(1) of the Countryside and Rights of Way Act 2000, or

(b) 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.

What duty is owed by an occupier?

S 2(1) of The Occupiers’ Liability Act 1957:

“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.”

Thus, the common duty of care is defined in section 2(2) as “a duty to take such care as in all

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 to be there.” This is similar to the

common law duty of care.

Roles v Nathan [1963] 1 WLR 1117 Court of Appeal


Facts: Two brothers, Donald and Joseph Roles were engaged by Mr Nathan as chimney sweeps to clean

the flues in in a central heating system at Manchester Assembly Rooms. The flues had become

dangerous due to carbon monoxide emissions. A heating engineer had warned them of the danger,

however, the brothers told him they knew of the dangers and had been flue inspectors for many years.

The engineer monitored the situation throughout the day and at one point ordered everybody out of

the building due to the levels of carbon monoxide. The brothers ignored this advice and continued with

their work. The engineer repeated the order and the brothers became abusive and told him they knew

better than him and did not need his advice. The engineer forcibly removed them from the building. It

was agreed that they would come back the following day to complete the work when the fumes would

have gone. They were also told they should not do the work whilst the fires were lighted. However, the

next day the brothers were found dead in the basement having returned the previous evening to

complete the work when the fires were lit. Their widows brought an action under the Occupiers

Liability Act 1957.

Held: The defendant was not liable. The dangers were special risks ordinarily incident to their calling.

The warnings issued were clear and the brothers would have been safe had they heeded the warnings.

This duty of care is the same as the ordinary duty of care in negligence.

Berryman v Hounslow LBC (1997 CA)

In appropriate circumstances an occupier may be liable to one of his visitors for harm caused by

another visitor. But it must be a reasonably foreseeable consequence of a breach of duty by the

occupier himself..

Cunningham V Reading Football Club Ltd (1992 QBD)

The plaintiff sought damages after being injured by a piece of concrete thrown by a hooligan at a

football match. Held: Where a land owner could reasonably expect that visiting fans might use broken

off pieces of concrete and hurl them at others, and did not ensure that such pieces were removed; it

could be liable in damages as occupier.

Perry v Butlins Holiday World (1998 CA)

A holiday park owed a duty of care to visitors in respect of the construction of a brick wall near an area

used for children’s shows.

Brannan v Airtours (1999 CA)

The claimant went on a party evening organised by the tour company with free unlimited alcohol. He

needed to go to the toilet and to do so he climbed onto the table and struck his head on the ceiling fan

in the process. He sustained a pretty nasty head injury. Airtours were found to have a duty of care in

such circumstances where they were plying him with alcohol as it was foreseeable his judgement could

be impaired and he was placed into a difficult position. However the claimant was found 50% to blame

for the accident.

Guidelines

S 2(3) of The Occupiers’ Liability Act 1957:

The circumstances relevant for the present purpose 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.

1. Children {S 2(3) (a) of OLA 1957}

Moloney v Lambeth (1966)

The occupier was liable when a four-year old boy fell through a gap in railings protecting a stairwell,

when adult could not have fallen through the gap.

Allurement (Attractiveness)

Latham v R Johnson and Nephew Ltd (1913 CA)

The court considered what arrangements might constitute a trap on land which might attract children:

‘What objects which attract infants to their hurt are traps even to them? Not all objects with which

children hurt themselves simpliciter. A child can get into mischief and hurt itself with anything if it is

young enough. In some cases the answer may rest with the jury, but it must be a matter of law to say

whether a given object can be a trap in the double sense of being fascinating and fatal. No strict

answer has been, or perhaps ever will be, given to the question, but I am convinced that a heap of

paving stones in broad daylight in a private close cannot so combine the properties of temptation and

retribution as to be properly called a trap.’

Occupier should appreciate that in the case of an infant, there are moral as well as physical traps.

There may accordingly be duty towards infants not merely not to dig pitfalls for them, but not to lead

them into temptation.

Taylor v Glasgow Corporation [1922] 1 AC 448 House of Lords

Facts: The defendants owned the Botanic Gardens of Glasgow, a park which was open to the public. On

the park various botanic plants and shrubs grew. A boy of seven years ate some berries from one of the

shrubs. The berries were poisonous and the boy died. The shrub was not fenced off and no warning

signs were present as to the danger the berries represented.

Held: Glasgow Corporation was liable. Children were entitled to go onto the land. The berries would

have been alluring to children and represented a concealed danger. The defendants were aware the

berries were poisonous no warning or protection was offered.

Phipps v Rochester Corporation (1955 QB)

Facts: A 5 year old boy was walking across some open ground with his 7 year old sister. He was not

accompanied by an adult. He was injured when he fell into a trench. The Corporation were not held

liable as an occupier is entitled to assume that prudent parents would not allow their children to go

unaccompanied to places where it is unsafe.

Devlin J on duty owed to children: “The law recognises a sharp difference between children and

adults. But there might well I think, be an equally marked distinction between ‘big children’ and ‘little

children’. …The occupier is not entitled to assume that all children will, unless they are allured, behave

like adults; but he is entitled to assume that normally little children will be accompanied by a

responsible person. …The responsibility for the safety of little children must rest primarily upon the

parents; it is their duty to see that such children are not allowed to wander about by themselves, or at

least to satisfy themselves that the places to which they do allow their children to go unaccompanied


are safe. It would not be socially desirable if parents were, as a matter of course, able to shift the

burden of looking after their children from their own shoulders to those persons who happen to have

accessible pieces of land.”

In the case of children the degree of care of the occupier would be as prudent parents.

Simkiss v Rhondda Borough Council (1983 CA)

If the child’s parent does not consider the danger, the occupier cannot be asked to a higher standard of

care.

Professor Markesinis and Deakin suggest that if a parent’s carelessness was a factor in the realisation

of child’s harm, then the occupier’s liability should be reduced than completely avoided.

Jolley v Sutton London Borough Council (2000 HL)

Borough local council allowed an abandoned boat in a derelict condition to remain on its land and it

was reasonably foreseeable that children might play on the boat and be injured, the council was liable

even if a child was not playing but attempting to repair it in an unpredictable way and thereby

sustained injuries which were more serious than were foreseen.

The House of Lords so held allowing an appeal by the plaintiff, Jolley, from a decision of the Court of

Appeal (1998). The House held that it was reasonably foreseeable that older boys would prop up and

work on the derelict boat.

2. Skilled visitors {S 2(3) (a) of OLA 1957}

Roles v Nathan (1963 CA)

When a householder calls in a specialist to deal with a defective installation on his premises, he can

reasonably expect the specialist to appreciate and guard against the dangers arising from the defect.

Bird v King Line Ltd (1970)

It was held that the risks of working on a ship did not include failing on refuse which was carelessly left

on the deck.

Ogwo v Taylor [1987] 3 WLR 1145 House of Lords

Facts: The Defendant attempted to burn off paint from the fascia boards beneath the eaves of his

house with a blow lamp and in so doing set fire to the premises. The fire brigade were called and the

Claimant, an acting leading fireman, and a colleague entered the house wearing breathing apparatus

and the usual fireman's protective clothing and armed with a hose. The two firemen were able, with

the aid of a step- ladder, to squeeze through a small hatch to get into the roof space. The heat within

the roof space was intense. The Claimant suffered serious burn injuries to his upper body and face

from scalding steam which must have penetrated his protective clothing.

Held: A duty of care was owed to a professional fireman. There was no requirement that the risk be

exceptional. The defence of volenti had no application.

Lord Bridge: "The duty of professional firemen is to use their best endeavours to extinguish fires and it

is obvious that, even making full use of all their skills, training and specialist equipment, they will

sometimes be exposed to unavoidable risks of injury, whether the fire is described as "ordinary" or

"exceptional." If they are not to be met by the doctrine of volenti, which would be utterly repugnant to

our contemporary notions of justice, I can see no reason whatever why they should be held at a


disadvantage as compared to the layman entitled to invoke the principle of the so-called "rescue"

cases."

Salmon v Seafarer Restaurants [1983] 1WLR 1264

Facts: The defendant owned a fish and chip shop. One night he left the chip fryer on and closed the

shop for the night. This caused a fire and the fire services were called to put out the fire. The claimant

was a fire man injured in an explosion whilst fighting the fire. He had been thrown to the ground whilst

footing a ladder on a flat roof. The defendant sought to escape liability by invoking s.2(3)(b) of the

Occupiers Liability Act 1957 in that the fire fighter could be expected to guard against special risks

inherent in fighting fires.

Held: The defendant was liable. Where it can be foreseen that the fire which is negligently started is of

the type which could require firemen to attend to extinguish that fire, and where, because of the very

nature of the fire, when they attend they will be at risk even if they exercise all the skill of their calling,

there is no reason why a fireman should be at any disadvantage in claiming compensation. The duty

owed to a fireman was not limited to the exceptional risks associated with fighting fire but extended to

ordinary risks.

Two further special aspects of common duty of care

Section 2 (4) provides: 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.

1. Warnings {s 2 (4) (a)}

e.g.: “The Bridge is dangerous’.

Roles v Nathan (1963 CA)

The warning may be given by the occupier’s agent.

Titchener v British Railways Board [1983] 1 WLR 1427 House of Lords

Facts: The Claimant, a 15 year old girl, was out walking with her boyfriend who was 16. They took a

short cut across a railway line and they were both hit by a train. He was killed and she was seriously

injured. There was a gap in the fence at the place where they crossed and there was a pathway leading

to this gap which suggested that there was repeated trespass. Also it was accepted that either the

Defendant was aware of the gap or would have been aware upon reasonable inspection. The

Defendant raised the defence of volenti under s.2(3) of the Occupiers Liability (Scotland) Act 1960


Held: The scope of the duty owed to trespassers varies on the circumstances. On the facts of this case

the Defendants did not owe a duty to a 15 year old trespasser who was fully aware of the risks. Even if

the Defendant did owe a duty of care the defence of volenti under s.2(3) would succeed.

Lord Ross: "In my view, the pursuer's own evidence referred to above, along with the other evidence in

the case, is, in my opinion, sufficient to establish the defence of volenti non fit injuria. Such defence is

open to the defenders under section 2 (3) of the Occupiers' Liability (Scotland) Act 1960, and no duty

under section 2 (1) of the Act is imposed upon an occupier to a person entering on the premises in

respect of risks which that person has willingly accepted as his. The pursuer here, on her own evidence,

was fully aware of the danger of crossing a line on which trains ran, and, in my opinion, she must be

taken to have consented to assuming the risk. There is a passage in her cross-examination which

proceeded as follows: "Q. And you knew that it would be dangerous to cross the line because of the

presence of these trains? A. Yes. Q. Well why did you do it if you knew it would be dangerous? A.

Because it was shorter to get to the brickworks. Q. You mean to say that you put your life in danger

through the presence of these trains, simply because it was shorter to get to the brickworks? A. Well,

before my accident I never ever thought that it would happen to me, that I would never get hit by a

train, it was just a chance that I took." A person who takes a chance necessarily consents to take what

comes."

Staples v West Dorset District Council [1995] EWCA Civ 30 Court of Appeal

Facts: The claimant fractured his hip when he slipped and fell off a harbour wall. The harbour wall was

known as The Cobb and was a well-known tourist attraction commonly used as a promenade. The edge

of The Cobb was covered with algae and extremely slippery when wet. The claimant had crouched in

the area affected by the algae to take a photo of his friends, when he slipped and fell off a 20 foot drop

landing on rocks below. He brought an action based on the Occupiers Liability Act 1957 arguing that no

warning signs were present as to the dangers of slipping.

Held: The dangers of slipping on wet algae on a sloping harbour wall were obvious and known to the

claimant. Therefore there was no duty to warn. Ashdown v Samuel Williams and Sons Ltd (1957 CA)

and White v Blackmore (1972 CA): It is not a matter for notice whether or not the entrant knew of the

risk, but whether the occupier had made all reasonable effort to inform him of it.

Whyte v Redland Aggregates Ltd (1997)

The plaintiff struck his head whilst diving into water in a disused gravel pit. The defendant had placed

‘Danger, keep out’ signs but the plaintiff argued that ‘No swimming’ signs should have been erected

and that there should have been a warning of an uneven Surface. It was held that the defendant’s duty

did not extend to putting up ‘No swimming’ signs or warning of the uneven surface.

Bunker v Charels Brand and Son Ltd (HC 1969)

Mere knowledge of the nature and extent of the risk is not necessarily a bar to recovery, though it may

go towards establishing a defence of volenti non fit injuria or, more likely, contributory negligence.

Darby v National Trust [2001] EWCA Civ 189 Court of Appeal

Facts: The claimant’s husband, Mr Darby, drowned in a pond owned by the National Trust (NT). The

pond was one of five ponds in Hardwick Hall near Chesterfield. Two of the ponds were used for fishing

and NT had taken steps to prevent the use of those ponds for swimming or paddling. However, with


regards to the pond in which the fatality occurred, NT had done nothing to prevent visitors using the

pond and it was common for visitors to use the pond for paddling and swimming during the warm

summer months. On the day in question Mr Darby had been paddling with his children around the

edge of the pond. He then swam to the middle to play a game he had often played whereby he would

go under water and then bob up to the surface. However, he got into difficulty and drowned. The

claimant argued that because of NT’s inactivity in preventing swimmers using the pond, both she and

her husband had assumed the pond was safe for swimming.

Held: NT was not liable. The risk to swimmers in the pond was perfectly obvious. There was no duty to

warn of an obvious risk.

A. The court followed Ashdown. May LJ held that: it cannot be the duty of the owner of every stretch

of coastline to have notices warning of the dangers of swimming in the sea.

B. The absence of a warning about one kind of danger will not assist the claimant if he suffers injury

due to another type of danger e.g. diseases.

2. Liability for independent contractors {s 2 (4) (b)}

Three points to the liability

1. It was reasonable for the occupier to entrust the work to an independent contractor. All

surrounding circumstances are to be taken.

2. The occupier selected the independent contractor with reasonable care.

3. The occupier had taken reasonable care to supervise the work of the contractor.

Haseldine V CA Daw & Son Ltd (1941 CA)

The occupier is not necessarily expected to check work of a technical nature. The more complex the

work the more reasonable it will be to entrust it to a contractor.

AMF International Ltd v Magnet Bowling Ltd (HC, 1968)

In the case of a complex project occupier may be under a duty to have the contractor’s work

supervised by a qualified specialist such as an architect or surveyor.

Woodward v Mayor of Hastings (CA, 1945)

Where the work is of a routine nature requiring no particular skill or expertise, the occupier may

himself be expected to check it and will be liable for failing to do so.

Extension of the circumstances of {s 2 (4) (a)}

Ferguson v Welsh (1987 HL)

1. On a point of interpretation it was held that the word “construction” in section 2(4)(b) was wide

enough to embrace demolition.

2. There may be circumstances in which the occupier should intervene if he knows (p 318 of Winfield

2003) or has reason to suspect (Markesinis and Deakin (2003) that the contractor is using an unsafe

system.

3. The majority also held that where an occupier had notice of an unsafe system of work adopted by

the contractor, he could be liable to an employee of the contractor injured thereby.

Insurance of the independent contractors

Gwilliam v West Hertfordshire Hospital NHS Trust [2002] EWCA Civ 1041 Court of Appeal


Facts: The claimant, a 63 year old woman, was injured at a summer fair hosted by West Hertfordshire

Hospital. She was injured whilst using a ‘splat wall’ whereby participants would bounce off a trampette

against a wall and become attached to the wall by means of Velcro material. The injury occurred as a

result of negligent set up of the equipment. The equipment was provided by a business called ‘Club

Entertainments’ who were an independent contractor engaged by the Hospital. Club Entertainment’s

public liability insurance had expired four days before the incidence and thus they had no cover for the

injury. They agreed to settle her claim for £5,000. Mrs. Gwilliam brought an action against the hospital

based on their failure to ensure that the entertainment arranged was covered by public liability

insurance. She claimed the difference between the £5,000 and what she would have received had they

been covered by insurance.

Held: The Hospital owed a duty of care Under the Occupiers’ Liability Act 1957 this duty did extend to

checking whether the independent contractor had insurance cover since this would be relevant to

whether they were competent. However, there was no breach of duty since the Hospital had enquired

and had been told by Club Entertainment that they had insurance cover. There was no duty to inspect

the insurance documents to ensure that cover was adequate. There would be a duty upon the occupier

to inquire into whether or not the contractor has adequate insurance. However, simple inquiry coupled

with an assurance from the contractor would be sufficient to discharge this duty.

Defences

1. Warning.

2. Volenti no fit injuria.

3. Contributory negligence.

1. Warning

e.g.: The Bridge is dangerous.

2. Volenti non fit injuria

Section 2(5) of OLA:

“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).”

Thus it appears that the Act preserves the defence. When an adult of full capacity voluntarily

undertakes an activity that carries an obvious risk and/or is obviously dangerous, then that risk cannot

be taken to be a risk within the scope of the Occupiers Liability Act 1957 because the risk is not

attributable to the “state of the premises”, but rather the free will of that individual in using the

premises in such a way that they know to be dangerous.

Simms v Leigh Rugby Football Club Ltd (1969)

The plaintiff had accepted the risks of playing on a rugby league ground which conform to the by‑laws

of the Rugby League.

White V Blackmore (1972)


It was hold that it was insufficient to show that the plaintiff knew that jalopy car racing was dangerous,

it was necessary to show that the plaintiff had consented to the specific risk that made that particular

track dangerous. (?)

Tomlinson v Congleton Borough Council (2003 HL)

In Lord Hoffmann’s view if visitor had chosen to indulge in an activity that was inherently dangerous it

may be assumed that the accident had arisen not out of “the state of the premises” within s 1.

3. Contributory negligence

The OLA 1957 does not specially mention whether a visitor’ own lack of care can be taken into account

in reducing damages. However courts have in a number of cases applied Law Reform (Contributory

Negligence) Act 1945 e.g. Woolins v British Celanese Ltd (1966); Stone v Taffe (1974).

Occupiers Liability Act 1984

Generally, an occupier Liability Act 1984 is the Act for non-visitors which are trespassers. In Occupiers

Liability Act 1984, this act describes the duty of an occupier of premises to people who do not have

permission from the occupier to be on the premises.

According to Robert Addie & Sons (Colliery) Ltd v. Dumbreck in year 1929, Lord Dunedin had give a

definition of trespassers which is "A trespasser is a person who goes upon land without invitation of

any sort and whose presence is unknown to the proprietor or, if known, is practically objected to."

Robert Addie & Sons (Colliery) Ltd v. Dumbreck in 1929

The facts in this case are when coal miners operated a haulage system in their field near a public road.

The system used a large wheel to haul coal ashes. The opposite end with the wheel was not visible to

anyone working the electrical motor. The court found the wheel to be dangerous and attractive to

children. This haulage system was surrounded by a fence, but it contained a number of gaps and was

inadequate from keeping children away from the wheel. Many people used the field as a shortcut and

children also played in the field. A "Trespassers will be prosecuted." sign was posted at one gate of the

field and D's servants had warned both children and adults to stay out of the field to no avail. P's son

was killed by the wheel after one of D's servants had set the wheel in motion. The court below had

awarded damages to P reasoning that D had not taken suitable precautions to avoid accidents before

activating the system.

The Occupiers Liability Act 1984 imposes a duty on occupiers in relation to persons 'other than his

visitors' (S.1(1)(a)OLA 1984). This includes trespassers and those who exceed their permission.

Protection is even afforded to those breaking into the premises with criminal intent see Revill v

Newbery [1996] 2 WLR 239.

Whilst it may at first appear harsh to impose a duty on occupiers for those that have come on to their

land uninvited and without permission, liability was originally recognised at common law for child

trespassers where the occupier was aware of the danger and aware that trespassers, including children

would encounter the danger.

British Railways Board V Herrington in 1972

The claimant, a child of six, was injured when he strayed onto the railway from a public park through

broken fencing belonging to the railway, whose drivers previously had reported trespassers on the line.


Held: the occupiers was liable for the child trespasser's injuries since it knew of the possibility of

trespassers and could have avoided the risk at ‘small trouble and expense' (i.e by mending the fence).

'Occupier' is given the same meaning as under the 1957 Act (S.1(2) OLA 1984). Since the Occupiers

Liability Act 1984 applies to trespassers, a lower level of protection is offered. Hence the fact that

death and personal injury are the only protected forms of damage and occupiers have no duty in

relation to the property of trespassers. (S.1(8) OLA 1984). Also the duty only arises when certain risk

factors are present.

The circumstances giving rise to a duty of care

Three conditions must be satisfied for the duty to arise

S 1 (3) of on the Occupiers’ Liability Act 1984 provides:

“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-

1. he is aware of the danger or has reasonable grounds to believe that it exists;

2. 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

3. the risk is one against which, in all the circumstances of the case, he may reasonably be expected to

offer the other some protection.”

If all three of these are present the occupier owes a duty of care to the non-lawful visitor.

The criteria in s.1(3) must be determined having regard to the circumstances prevailing at the time the

alleged breach of duty resulted in injury to the claimant:

Donoghue v Folkestone Properties [2003] EWCA Civ 231 Court of Appeal

Facts: Mr Donoghue, the claimant, spent Boxing Day evening in a public house called Scruffy Murphy’s.

It was his intention, with some of his friends, to go for a midnight swim in the sea. Unfortunately in his

haste to get into the water he dived from a slipway in Folkestone harbour owned by the defendant and

struck his head on an underwater obstruction, breaking his neck. At his trial evidence was adduced to

the affect that the slipway had often been used by others during the summer months to dive from.

Security guards employed by the defendant had stopped people from diving although there were no

warning signs put out. The obstruction that had injured the claimant was a permanent feature of a

grid-pile which was submerged under the water. In high tide this would not have posed a risk but when

the tide went out it was a danger. The claimant’s action was based on the Occupiers Liability Act 1984.

Mr Donoghue was 31, physically fit, a professional scuba diver who had trained in the Royal Navy. It

was part of his basic knowledge as a diver that he should check water levels and obstructions before

diving. The trial judge found for the claimant but reduced the damages by 75% to reflect the extent to

which he had failed to take care of his own safety under the Law Reform (Contributory Negligence) Act

1945. The defendant appealed contending that in assessing whether a duty of care arises under s.1(3)

each of the criteria must be assessed by reference to the individual characteristics and attributes of the

particular claimant and on the particular occasion when the incident in fact occurred ie when assessing

whether the defendant should be aware of whether a person may come into the vicinity of the danger,


it should be assessed on the likelihood of someone diving into the water in the middle of the night in

mid-winter rather than looking at the incidences of diving during the summer months.

Held: Appeal allowed. The test of whether a duty of care exists under s.1(3) Occupiers Liability Act

1984 must be determined having regard to the circumstances prevailing at the time of the alleged

breach resulted in injury to the claimant. At the time Mr Donoghue sustained his injury, Folkestone

Properties had no reason to believe that he or anyone else would be swimming from the slipway.

Consequently, the criteria set out in s.1(3)(b) was not satisfied and no duty of care arose.

The criteria mentioned by the Act appears as follows:

1. First two could be seen as subjective and

2. Third one could be treated purely as an objective. Professor Markesinis and Deakin (p 350, 2003).

Regarding first two Professor Lunney and Oliphant (p 534, 2003) says that these are partly subjective

and partly objective.

White v St. Albans City and District Council (1990 CA)

It is enough that a reasonable man ought to know of the danger and likely presence of the trespasser

from the facts of the case. In other words it appears that constructive knowledge is enough.

Swain v Puri (1996 CA)

Section 1(3)(b) requires actual knowledge of facts which would lead a reasonable person to be aware

of the danger or the presence of the trespasser. Constructive knowledge is not enough.

Professor Winfield (p 325, 2002) suggests that simple ignorance, though blameworthy is not enough

though it is enough for the OLA 1957. In this sense OLA 1984 is more narrowly focused (p116, Steve

Hedley 2002).

Tomlinson v Congleton Borough Council (HL 2003)

Under the 1984 Act the Council could only be found to have a duty of care if they were aware of the

danger (or had reasonable grounds to believe it existed), and that the Council knew that someone

could be or was in the vicinity of the danger and finally, that the risk was such that they could be

expected to offer some sort of protection against.

Standard of care

S.1(4) OLA 1984 - the duty is to take such care as is reasonable in all the circumstances of the case to

see that the other does not suffer injury on the premises by reason of the danger concerned.

Revill v Newbery [1996] 2 WLR 239

Occupancy duty does not cover any activity (unless such as to affect the state of the premises) carried

on the premises by the occupier or a third party with the occupier’s consent.

The Claimants action was successful but his damages were reduced by 2/3 under the Law Reform

(Contributory Negligence) Act 1945 to reflect his responsibility for his own injuries.

Ratcliff v McConnell and Harper Adams College [1997] EWCA Civ 2679 Court of Appeal

The claimant was a student at Harper Adams College. One night he had been out drinking with friends

on campus and they decided they would go for a swim in the college pool which was 100 yards from

the student bar. They climbed over a locked gate into the open air swimming pool. The pool had a

notice at the entrance which stated the pool would be locked and its use prohibited between the hours

of 10pm -6.30am. There was a notice at the shallow end in red on a White background stating ‘Shallow


end’ and a notice at the deep end stating ‘Deep end, shallow dive’. However, the boys did not see the

signs because there was no light. The three boys undressed. The claimant put his toe in the water to

test the temperature and then the three of them lined up along the side of the pool and dived in.

Unfortunately the point at which the claimant dived was shallower than where the other boys dived

and he sustained a broken neck and was permanently paralysed. The claimant brought an action in the

law of negligence and under the Occupiers Liability Acts 1957 and 1984. The trial judge held that the

claimant was a trespasser since he was not permitted to go into the pool and that the College owed a

duty of care under the 1984 Act since the pool had often been used by students in the prohibited

hours so the College should have been aware that the claimant was within a class of persons who may

come into the danger. The breach was in not taking more preventative action to prevent use of the

pool. The claimant’s damages were, however, reduced by 60% under the Law Reform (Contributory

Negligence) Act 1945. The defendants appealed contending the evidence relied on by the claimant in

terms of repeated trespass all took place before 1990 before they started locking the gates.

Held: The appeal was allowed. The claimant was not entitled to compensation.

The defendant had taken greater steps to reduce trespass by students since 1990. The only incidence

of trespass to the pool in the four years prior to the claimant’s injury, related to students from a

visiting college and therefore there was no reason for the college to suspect the students had come

into the danger so no duty of care arose under s.1(3)(b) Occupiers Liability Act 1984. Also the trial

judge had incorrectly identified the danger. The pool itself was not dangerous it was the activity of

diving into it which was unsafe. This was an obvious danger to which there was no duty to warn. By

surrounding the pool with a 7 foot high fence, a locked gate and a prohibition on use of the pool in the

stated hours the College had offered a reasonable level of protection.

The duty may be discharged by giving a warning or discouraging others from taking the risk S.1(5)

Occupiers Liability Act 1984 - note there is no obligation in relation to the warning to enable the visitor

to be reasonably safe - contrast the provision under the 1957 Act.

Tomlinson v Congleton [2003] 3 WLR 705

House of Lords held: The Council was not liable.

No risk arose from the state of the premises as required under s.1(1)(a) Occupiers Liability Act 1984.

The risk arose from the claimant’s own action. He was a person of full capacity who voluntarily and

without pressure or inducement engaged in an activity which had an inherent risk. Even if there was a

risk form the state of the premises, the risk was not one against which the council would reasonably be

expected to offer the claimant some protection under s.1(3)(C). In reaching this conclusion Lord

Hoffman looked at the position if he had not been a trespasser and applied the common duty of care

owed under the Occupiers Liability Act of 1957. He was of the opinion that there was no duty to warn

or take steps to prevent the claimant from diving as the dangers were perfectly obvious. This was

based on the principle of free will and that to hold otherwise would deny the social benefit to the

majority of the users of the park from using the park and lakes in a safe and responsible manner. To

impose liability in this situation would mean closing of many such venues up and down the country for

fear of litigation. He noted that 25-30 such fractures occurred each year nationwide, despite increased

safety measures the numbers had remained constant.


Range of duty in Occupiers Liability Act 1984

The range of duty under the 1984 Act is much constricted than under the 1957 Act. An occupier will

only owe trespassers a duty to care for their safety when there is situation which:

1. the danger is reasonably foreseeable, and

2. the presence of the trespasser is reasonably foreseeable, and

3. the danger is one that the occupier ought reasonably to guard against.

The occupier may be expected to offer some protection will depend on various relevant factors, which

include:

- The nature of the premises

- The nature of the danger

- The extent of the risk

- The gravity of possible injury

- The age of the trespasser

- The nature and character of entry for example a burglar, child trespasser or adult inadvertently

trespassing

- The foreseeability of the trespasser

Position after OLA 1984

1.(1) of OLA 1984:

“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.”

Thus s 1 (1) OLA 1984 replaces any common law duty owed by the occupier to persons other than

visitors with the duty provided by the Act.

In Revill v Newbury (1996 CA) it was held that occupier has the same meaning as the OLA 1957. So,

presumably the visitor has also the same treatment.

Subject matter

Section 1 (8) OLA 1984: 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.

Defences

Contributory negligence - Damages may be reduced under the Law Reform (Contributory

Negligence) Act 1945 where the visitor fails to take reasonable care for their own safety.

Warning

Section 1(5) of OLA 1984:

“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.”


Cotton v Derbishire Dales District Council (1994 ): It was held that there was no duty to warn

against dangers that are obvious.

Tomlinson v Congleton Borough Council (HL 2003): There is no duty to warn if the danger and risk

of injury form diving into a shallow lake is obvious. Therefore, it is common sense that any

additional warnings would have done no more than told the Claimant what he already knew.

The House found that any duty to warn against, and discourage people from taking a risk that could

result in a serious injury, had to be balanced as against the social value of the amenity that gave

rise to the risk, and the cost of preventative measures. In this instance, the majority of visitors to

the park would enjoy the use of the beach and lake in such a way that there was no risk. The fact

that people did not take any notice of the warnings not to swim did not create a duty to take other

steps to protect them from a danger that was obvious. In short, just because the Council had taken

the decision to put further protective measures in place, did not mean that they were under a legal

duty to do so.

Volenti non fit injuria

Section 1(6) of OLA 1984: “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).”

Ratcliffe v McConnell (1998 CA)

The Court of Appeal decided that a student who was seriously injured when he dived into a

swimming pool, at 2 am when it was locked had consented to run the risk of injury, under s 1(6) of

the 1984 Act.

Tomlinson v Congleton Borough Council (HL 2003)

When an adult of full capacity voluntarily undertakes an activity that carries an obvious risk and/or

is obviously dangerous, then that risk cannot be taken to be a risk within the scope of the Occupiers

Liability Act of 1984 because the risk is not attributable to the “state of the premises”, but rather

the free will of that individual in using the premises in such a way that they know to be dangerous.

See the facts of Donoghue v Folkestone Properties Ltd (2003 CA).

Exclusion of liability - Whereas the 1957 Act allows an occupier to exclude liability (subject to the

provisions set out in UCTA 1977), the 1984 Act does not expressly confer such a right. This may be

an oversight by the legislature and it may be possible to exclude liability since it is not expressly

forbidden or it may be that the legislature was of the opinion that it should not be possible to

exclude liability for the basic level of protection afforded to trespassers.

The Occupiers’ Liability Act 1984 is silent on the question of whether the duty can be excluded with

regard to trespassers. It has been argued that it is not possible to exclude a liability to a trespasser,

as it is a minimal duty.

Differences between occupiers liability Act 1957 and Occupiers Liability Act

1984

Firstly, the Occupiers Liability Act 1957 is the act that lawful duty of care to the visitors and the

Occupiers Liability Act 1984 is for a trespasser.


Secondly, the land occupier's duty to a lawful visitor is set out in the Occupiers Liability Act 1957 while

the duty to a trespasser is in the OccupiersLiabilityAct1984.

Thirdly, the Occupiers Liability Act 1984 only apply to personal injuries whereas in Occupiers Liability

Act 1957, this Act is not so limited due to in effect, the occupier carries no liability for damage to a

trespasser's property. However, it considers money and it is expensive.

Fourthly, Occupiers Liability Act 1957 allows the visitor to waive his protection under the Act by a clear

disclaimer, subject to the provisions of the Unfair Contract Terms Act 1977. In Occupiers Liability Act

1984, the Act makes no such statement. It is not entirely clear why a person is allowed to waive his

responsibility to lawful visitors, but not to trespassers. This is because, the 1977 Act practiced prevent

any effective waiver anyway. On the other hand, the duty of care to a trespasser is declining that it

would unjust to allow the occupier to lower it still further by a disclaimer. This factor have contributed

to other argument which states it would be possible to get a lawful visitor to express his agreement to

the terms of a disclaimer, it is not clear how one would get a trespasser to do so.

Conclusion

As conclusion, it is very essential for business organisation to consider the elements of torts liability for

premises. Both parties should know the limitations of their contract. Therefore, if anything happen in

future, the contracting party can sue for benefit due to injured or death. In torts liability for premises,

often component in this tort is the occupiers, premises, visitors or trespassers. In addition, there is also

statute that can be guidance for an organisation to conduct duty of care according to the Occupiers

Liability Act 1957 which is for visitors and Occupiers Liability Act 1984 which is for non-visitors or

trespassers.

Class activity

Look at the source of the modern law – OLA 1957.

Learners summarise the main standards that this Act imposes using the website opposite – learners

should take care to note the sections and subsections accurately.

Using the website opposite, learners write a summary on how the law in this area protects individuals

– and consider the alternative argument that it does nothing to protect those who find themselves

having to defend a claim.

Discussion – Why was the OLA 1957 not sufficient and which groups of people were not helped in the

way that Parliament had intended?

Learners look at developments in the law – OLA 1984.

Using the website opposite learners write a summary of the main standards that this Act imposes –

learners should take care to note the sections and subsections accurately.

Research activity – learners use the website opposite to identify some of the key cases and prepare a

short summary on each to present to other learners.

Questions from past papers

Q1. ‘A balance needs to exist between the interests of an occupier of land and those of people who enter his/her land.’ Discuss this statement and debate the extent to which the Occupiers’ Liability Acts 1957 and 1984 achieve such a balance. [May/June 2005]


Q2. ‘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.’ (Section 2(1) Occupiers’ Liability Act 1957). Discuss the extent to which the occupier of premises can limit his liability. [October/November 2006]

Q3. ‘The Occupiers’ Liability Act 1984 states that an occupier has a duty to persons other than visitors to take such care as is reasonable in the circumstances to see that they do not suffer injury on the premises.’ Examine the circumstances that led to this legislation and critically assess whether the liability imposed on occupiers by this Act is fair. [May/June 2007]

Q4. The Occupiers Liability Acts 1957 and 1984 impose an unfair burden on occupiers of land to ensure the safety of those, whether visitors or trespassers, who enter that land. Critically analyse this view. [October/November 2010]

Q5. The Occupier’s Liability Act 1984 extended liability towards persons other than visitors. Critically examine the conditions of liability imposed by S1(3) OLA 1984 and evaluate the defences available to actions brought under the Act. [October/November 2011]

Q6. Critically analyse the extent to which the Occupiers’ Liability Acts 1957 and 1984 achieve an appropriate balance between the interests of occupiers of land and those of people who enter their land. [October/November 2013]

Lecture # 6 - VLCvlc.com.pk/Law of Tort LOT/LOT 6 Occupiers Liability.pdf · 2016-01-10 · ©VLC...

Documents

Transcript of Lecture # 6 - VLCvlc.com.pk/Law of Tort LOT/LOT 6 Occupiers Liability.pdf · 2016-01-10 · ©VLC...