Occupiers’ Liability Act 1957

• Before 1957, common law categorized entrants into contractors, invitees, licensees, and trespassers, each with different protection levels.
• The Law Reform Committee in 1954 recommended statutory intervention to address the complexities and technicalities of the existing system.
• When addressing a problem question, determine if the claimant is a visitor to identify which statute applies.

Occupiers’ Liability Act 1957

• Section 1 of the OLA 1957 replaces common law rules, regulating an occupier's duty to visitors regarding dangers on the premises, or actions/omissions on the premises.
• It governs the duty imposed by a person's occupation/control of premises, and any invitation/permission granted for entry/use.
• The Act doesn't change common law rules about who is an occupier or visitor.
• The enacted rules apply similarly to obligations concerning fixed/moveable structures (vessels, vehicles, aircraft) and damage to property, even if the property belongs to non-visitors.

Scope of OLA 1957

• The 1957 Act abolished the common law distinction between invitees and licensees, replacing it with the term "visitors," while the definition of "occupier" remains the same.
• Act concerns "dangers due to the state of the premises or to things done... on them”.
• Occupancy duties concern the state of premises, for example defective walls. Activity duties concern activities carried out on the premises, for example playing football and breaking someones nose.

Occupancy vs. Activity Duties

• The OLA 1957 covers "occupancy duties," not "activity duties."
• Fairchild case: Exposure to asbestos dust concerned "activity duties", so OLA 1957 did not apply.
• McCarthy v Marks & Spencer Plc case: OLA 1957 covers “occupancy duties”, not “activity duties."
• If OLA 1957 does not apply, look to the tort of negligence instead.
• Bottomley v Todmorden Cricket Club: Liability was under the tort of negligence, not the OLA 1957, since it concerned an “activity duty.”

Tomlinson v Congleton Borough Council finding

• Highlights that there is no liability when danger arises from the claimant’s actions, rather than the state of the premises.
• No danger was due to the state of premises as it was an ordinary stretch of open water.
• The risk arose out of what the claimant chose to do (diving) and not out of the state of the premises.
• W&J: Liability under the 1957 Act could extend to activities conducted by the occupier, or by others with their consent, that create a risk to persons on the premises (e.g., shooting).

Establishing Liability Under the 1957 Act: Occupier

• s2(1): An occupier owes the "common duty of care" to all visitors.
• s1(2): Occupiers and visitors are defined as those treated as such under common law (invitees/licensees).
• Occupier = anyone with sufficient control to ensure premises' safety, per Wheat v Lacon & Co Ltd, where both the owner and manager had sufficient control.
• Control does not need to be entire or exclusive as per Wheat.
• Occupiers’ liability centers on occupation control arising from presence, use, or activity on the premises (degree dependent).
• Legal title determines occupancy when nobody has physical control.
• An owner who has let the premises to another and parted with possession is not liable under the act.

Establishing Liability Under the 1957 Act: Premises

• Section 1(3): The Act applies to fixed or moveable structures, including vessels, vehicles, and aircraft.
• "Premises" includes railway lines, airport runways etc., as well as substantial movable things like ships and vehicles, and less substantial movable things like ladders.
• Wheeler v Copas: Ladder counted as premises, also no claim under OLA 1957 since the farmer was not an occupier at the time of injury.

Establishing Liability Under the 1957 Act: Visitor

• There is a difference between express permission and implied permission.

Establishing Liability Under the 1957 Act: Implied Permission

• Onus of proving an implied permission rests on the person who claims that it existed. Permission may be inferred when the public frequently use the premises to the knowledge of the occupier, and she takes no steps to prevent this.
• There is no implied permission when the occupier takes steps to assert their rights, such as putting up a “Keep Out” sign.
• Brunner v Williams establishes that entering to communicate with the occupier grants tacit permission unless forbidden (Robson v Hallett).
• Facts must support implied permission from the occupier's conduct, not mere tolerance (Edwards v Railway Executive).
• Harvey v Plymouth CC. D = not liable as Implied permission did not extend to claimant’s actions. Tthe implied permission only applied to the nature of recreational activities suggested by the land.
• W&J: The question should be: was there something wrong with the premises, given the purposes for which visitors were invited?

Establishing Liability Under the 1957 Act: Permission Limitations

• Permission might be limited by space, purpose or time.
• A license to enter is limited to those places into which the visitor might be supposed to go in the reasonable belief that she is entitled to be there, as seen in The Calgarth case.
• Tomlinson reinforced the rationale that those who come onto land without permission should not be able to force duties upon unwilling hosts.
• Spearman v Royal United Bath Hospitals NHS Trust: Claimant remained a visitor as it was found that a person’s state of mind is relevant to determining whether she is a visitor or a trespasser.
• Ovu v London Underground Ltd: stairs were not dangerous and The criteria under OLA 1984 were not satisfied, meaning that the deceased was a trespasser.
• Ovu establishes mental element in Spearman best described as asking in the circumstances of lawful visitor: could that class of person with those characteristics reasonably be aware of the limits of her licence?
• In Ovu, C entered off-limits area as trespasser, having passed clear barriers and signs.
• Even if C intended to stop being a trespasser, until this has been accomplished he is still a trespasser, as he was aware he was a trespasser.
• A person using a public or private right of way is not a visitor for the purposes of the Act.
• The user of a private right of way may be owed a duty under the OLA 1984, but at common law the owner of the highway or servient tenement has no obligation to the user to maintain its safety, as opposed to not creating any dangers on it.

Establishing Liability Under the 1957 Act: Ostensible Permission

• The test is whether person giving permission has “ostensible authority” to do so.
• This means that occupier has given impression to potential entrants that another person has authority to give permission to enter.
• If the employee is entitled to give permission, the person entering is a visitor.
• Stone v Taffe case: C was visitor if they acted in good faith and that employee acted in course of employment.
• Ferguson v Welsh case: Builder had “ostensible authority” to give permission. It is what may properly be inferred that counts, not the occupier’s actual intention.
• Section 2(6): Those entering premises by legal right are treated as permitted, regardless of actual permission (e.g., firemen/policemen).

Establishing Liability Under the 1957 Act: Common Duty of Care - General

• Section 2(2): "The common duty of care" is a duty to take such care as in all the circumstances 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.”
• When expertise is involved, apply the Bolam test (acting in accordance with a practice accepted as proper by a responsible body of opinion).
• Occupier's breach involves balancing precaution benefits against costs (Tomlinson v Congleton BC).
• Cook v Swansea City Council case: no breach was found when carrying out a balancing exercise as the cost of taking the precaution outweighed the benefits.
• The common duty of care covers negligent omissions as well.
• An occupier must not only avoid creating dangers on the premises, but she must also take reasonable steps to protect the visitors from dangers created by others which make the state of the premises unsafe.
• Tomlinson v Congleton BC establishes that in general there is no liability for obvious risks or dangers.
• Autonomy argument states that competent adults should be free to take risks they can appreciate.
• Edwards v Sutton LBC case: D = not liable as it was obvious to any user of the bridge that there was a danger.
• Section 2(3): Circumstances include the degree of care expected of the visitor. The overall question is whether reasonable care is taken to ensure the visitor's reasonable safety, so visitor characteristics and visit purpose matter.
• Pollock v Cahill case: Common duty of care under s2 of OLA 1957 required D to have regard to any known vulnerability of visitor. 70. Open window created a risk to a blind person, especially when on the second floor with nothing to prevent a fall.
• As seen in Tacagni, there is a degree of care an occupier can expect of an ordinary visitor.
• Tacagni v Cornwall County Council case: D = not liable. C did not show the degree of care expected of an ordinary visitor.

Establishing Liability Under the 1957 Act: Common Duty of Care - Children

• Section 2(3)(a): Occupiers must prepare for children being less careful than adults.
• Occupiers can expect reasonable parental/guardian supervision (Phipps v Rochester Corporation and Bourne Leisure Ltd v Marsden).
• Phipps v Rochester Corporation case: Occupier was not liable as The responsibility for the safety of little children must rest primarily on the parents
• Ultimately, the question is whether children are reasonably safe, considering their lower level of care.
• West Sussex County Council v Pierce case: D = not liable as, as a matter of objective fact, C was safe in using the premises.
• Glasgow Corporation v Taylor: D = liable. Tempting-looking berries constituted an “allurement” to the child, so the child was not a trespasser.
• The presence of an attractive object on the premises can lead to the inference of an implied permission.
• Should the doctrine of “allurement” apply with equal strength after the enactment of OLA 1984?
• Tofaris argues that OLA 1984 protects children who are trespassers so there is arguably less need today to stretch the rules for the purpose of finding that children are visitors and not trespassers.

Establishing Liability Under the 1957 Act: Common Duty of Care - Special Risks

• Section 2(3)(b): Occupiers can expect those in a calling to appreciate/guard against ordinary special risks.
• Roles v Nathan: D = not liable as deaths arose from special risk ordinarily associated with C’s calling. What is this?
• If C was a window-cleaner that fell into a hole in D’s garden, D would be liable because the hole in the garden has nothing to do with the special calling of the window.
• This section only covers situations where the risk relates to the job at hand.

Establishing Liability Under the 1957 Act: Common Duty of Care - Warnings

• Section 2(4)(a): Warnings don't absolve liability unless they enable reasonable safety.
• Occupiers can discharge duty by giving warning which is sufficient to enable the visitor to be reasonably safe.
• Whether a warning is sufficient depends on all the circumstances, including the purpose of the visit, the nature of the danger, and the feasibility of mitigating it.
• Just because a visitor knows about a warning, doesn’t mean that they are reasonably safe in using the premises.
• Effective warnings must be prominent and clear; greater danger requires more specific warnings (Rae v Mars (UK) Ltd).
• Rae v Mars (UK) Ltd case: D = liable as D did not give specific warning that danger was immediate.
• Darby v National Trust : D = not liable. Failure to erect signs around pond that swimming was not allowed was not breach of duty because risk associated with swimming in pond was obvious.

Establishing Liability Under the 1957 Act: Common Duty of Care - Independent Contractors

• Section 2(4)(b): Occupiers are not liable for faulty work by competent independent contractors if reasonable steps were taken. Occupier discharges DoC if they (1) acted reasonably in entrusting the work to an independent contractor, (2) took reasonable steps to ensure contractor is competent and (3) took reasonable steps to ensure that the work had been properly done
• Alexander v Freshwater Properties Limited case: D = liable because it should have realised that self-closing mechanism was defective, and it was party to the decision to remove the handle.
• In Gwilliam v West Hertfordshire Hospitals NHS Trust it was held that s2(4)(b) required D to inquire about the insurance position of independent contractor.
• Naylor v Payling: N = not liable. CoA agreed with dissenting judges in Gwilliam. Failure to inquire into W’s insurance coverage did not lead to breach of duty of care.
• Glaister v Appleby-in-Westmoreland Town Council affirms the position in Naylor.

Establishing Liability Under the 1957 Act: Causation & Damage

• Normal rules of factual, legal causation and remoteness of damage apply.
• Section 1(3)(b): The OLA 1957 rules apply to damage to property of visitors, and non-visitors.
• Death, personal injury and property damage are covered.

Establishing Liability Under the 1957 Act: Defenses

• Contributory negligence: Applies where C fails to take reasonable care of her own safety and that failure is causally connected to the damage she suffers. Leads to reduction of C’s damages based on what the court thinks is ‘just and equitable.’ regulated by the Law Reform (Contributory Negligence) Act 1945.
• Volenti non fit injuria: Section 2(5): Occupiers have no obligation for willingly accepted risks. For the defence to succeed, it must be shown that C was aware of the relevant risk and willingly accepted to incur it.
• White v Blackmore: No defence of volenti. C - spectator, did not consent to risk that organisers will fail to make proper safety arrangements for spectators.
• Geary v JD Wetherspoon plc: C was aware of obvious risk of falling and chose to take that risk. Volenti applied to defeat her claim.

Establishing Liability Under the 1957 Act: Defenses - Exclusion of Liability

• Section 2(1): Occupiers can exclude, restrict, or modify their duty by agreement/otherwise. This exclusion is regulated by common law and statute.
• Regulation of exclusion of liability at common law: Occupier must take reasonable steps to bring the exclusion of liability to the attention of the visitor.
• Ashdown v Samuel Williams and Son Ltd: D = not liable because D took reasonable steps to bring notices to C’s attention.
• White v Blackmore: result would have been difference if the case were to be decided today, due to Consumer Rights Act etc.
• Occupiers do not need to show that the visitor read or knew about the notice as all that is required is that (objectively) reasonable steps are taken to bring the notice to visitor’s attention.
• Reasonable step determination depends on circumstances, including notice location and wording.
• Need to address what both the common law and statute say.
• An attempt to exclude liability arising under OLA 1957 is regulated by legislation:
  • C = not consumer + D = occupier in course of business UCTA 1977
  • C = consumer + D = occupier who is a “trader” CRA 2015
  • D = not acting for purposes of trade or business neither Act applies

Establishing Liability Under the 1957 Act: Defenses - Exclusion of Liability - UCTA 1977

• Unfair Contract Terms Act 1977 (UCTA) restricts the use of notices or contract terms which purport to exclude D’s business liability for negligence where C is not a consumer, such as a postman.
• UCTA 1977 catches only attempts to exclude “business liability.”
• Section 2(1): clauses/notices purporting to exclude negligence liability for death or personal injury = invalid.
• Section 2(2): clauses/notices purporting to exclude negligence liability for other loss or damage = permitted only if reasonable.

Establishing Liability Under the 1957 Act: Defenses - Exclusion of Liability - CRA 2015

• Clauses/notices purporting to exclude a trader’s negligence liability to a consumer for death or personal injury = invalid.
• Section 65(1): “A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence.”
• Clauses/notices purporting to exclude a trader’s liability under the OLA 1957 to a consumer in respect of property damage = permitted only if fair.
• Section 62: An unfair term of a consumer contract is not binding on the consumer.
• “Keep out” signs seek to prevent people from entering; signs warning about risks seek to discharge duty or raise volenti defense; signs excluding liability seek to raise that defense.

Occupiers’ Liability Act 1984

• Modified position in British Railways Board v Herrington: Occupier owed trespasser a duty of “ordinary humanity” to take steps to reduce or avert a danger.
• *Tomlinson v Congleton Borough Council: The duty under the 1984 Act is rarer and different in quality from the duty [under the 1957 Act]…”

How to Apply OLA 1984

• Keown v Coventry Healthcare NHS Trust highlights: (1) Are initial requirements met? s. 1(1)(a) and s. 1(8)/s. 1(9) (2) Does a duty in fact arise? s. 1(3) (3) What does the duty require? s. 1(4)

Scope of OLA 1984

• Section 1(1): The rules determine whether any duty is owed by an 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…
• The 1984 Act applies to those who are not visitors under OLA 1957. This includes trespassers and users of private rights.
• s. 1(7) of OLA 1984 excludes persons using the public highway.
• As established from Brown v South West Lakes Trust, 1984 Act (like OLA 1957) applies only to “occupancy duties” and not “activity duties.”
• It only covers death and personal injury, not property damage (s. 1(8) and s. 1(9) of OLA 1984)

OLA 1984: Does a Duty Arise?

• Section 1(3): An occupier of premises owes a duty to another (not being his visitor) if aware of danger, knows/believes the other is in/may come into the vicinity, and can reasonably offer protection.
• Tomlinson v Congleton Borough Council: It is clear that in the case of a lawful visitor, one starts from the assumption that there is a duty whereas in the case of a trespasser one starts from the assumption that there is none.”
• The required threshold is the knowledge of a danger.
• Swain v Puri: D = not liable. Occupier had to have actual knowledge of facts that would have led to the necessary conclusions, shut-eye knowledge—does D know facts which would have led the reasonable person to the necessary conclusion?
• Donoghue v Folkstone Properties: D = not liable as even if D might have expected trespassers during ordinary hours, there was no reason to expect them in the middle of night.
• In Brown v South West Lakes Trust, the relevant risk was not one against which occupier “may reasonably be expected to offer… some protection”
• OLA 1984, Ratcliff v McConnell highlights that there is no duty in general to warn adults of dangers that would be obvious to a reasonable person.
• Whether a child of that age can appreciate the risk is a question of fact and degree, as per Keown.

OLA 1984: What Does the Duty Require?

• Section 1(4): The duty is to take such care as is reasonable to prevent injury from the danger. The duty under OLA 1984 is not as high as OLA 1957.
• Section 1(5): Duty may be discharged by warning of danger or discouraging risk.
• C&L: Must take greater care for the safety of child trespassers than adults.
• The duty under 1984 Act can often be discharged simply by taking steps which are reasonable to warn of the danger or discourage persons from incurring the risk, as per s1(5).

OLA 1984: Defenses

• Contributory negligence: Normal rules apply.
• Volenti non fit injuria: Section 1(6): No duty is owed to any person in respect of risks willingly accepted as his by that person. “See Ratcliff case.”

OLA 1984: Defenses - Exclusion of Liability

• OLA 1984 is silent on exclusion of liability, which is tricky as Issue debated during Act’s preparation but no clear answer. There are cases for and against this, and this is based on different rationale.
• C&L argues that notices may be subjected to the unfairness provisions of section 62 of CRA 2015, requiring the trespasser to count as a consumer within the meaning of s2(3) of the CRA 2015.