Occupiers' Liability: OLA 1957 & 1984

• Occupiers' liability addresses risks and harms from dangerous places and buildings.
• It arises when someone is injured on an occupier's premises due to the state of said premises.
• It is a statutory form of negligence.
• Refer to the OLAs 1957 and 1984.

Where it appears on the exam

• As a problem questions focusing on occupier's liability specifically
• Part of a broader negligence problem
• As an essay question

Two Statues

• The Occupiers' Liability Act 1957 covers visitors, including invitees, licensees, and contractual visitors (ss 1(2), 5).
• The Occupiers' Liability Act 1984 covers non-visitors, which include but are not limited to trespassers (s 1(1)(a)).
• It's important to apply the correct Act.

Occupiers Liability Act 1957

• An occupier of premises owes a common duty of care to visitors who suffer injury due to the state of the premises or things done/omitted on them (s 1(1)).

Occupier Definition

• Someone who has control of the premises.
• It is not necessary to have entire control over the premises.
• One need not have exclusive occupation, some degree of control is enough.
• Control may be shared with others.
• Wheat v Lacon & Co Ltd [1966] D owned a pub which they let to R to run. C's husband was fatally injured after falling down a flight of poorly lit stairs while staying at the pub. Both D and R were considered occupiers under the 1957 Act since D hadn't relinquished complete control.

Definition of Visitor

• Someone invited onto, or given permission to be on, premises.
• Permission can be revoked and/or restricted under s 2(1).
• Phipps v Rochester Corporation [1955] C, a 5yr old boy, had accompanied by his 7yr old sister blackberry picking on an area of grass land which, at the time, it was a building site being developed by D. The boy fell into a deep trench and was injured.
• Since children had been known to play on this land and D had done nothing to prevent this, children as a class had implied permission to be on the site.
• D was entitled to assume that very little children would be accompanied by a responsible supervisor.
• Occupiers have a duty to ensure dangers were brought to the attention of those accompanying young children.
• They did not have to accommodate the limitations of the children themselves.
• Tomlinson v Congleton Borough Council [2003] C was seriously injured after hitting his head on the bottom of a lake (in a public park managed by D).
• Visitors frequently ignored prominent notices stating 'Dangerous water: no swimming'. D knew this but had not implemented plans to prevent visitors from accessing the beach area for financial reasons.
• C was a trespasser under the 1984 Act.
• Being a lawful visitor to the park was limited to the time before entering the lake as occupier's permission did not extend to entering the water.
• Ignoring the warning signs turned them into a trespasser.

Premises definition

• Premises include any fixed or movable structure, including any vessel, vehicle, or aircraft (s 1(3)(a)).
• This includes buildings, driveways, fire escapes, and more temporary setups like scaffolding, derelict boats and bouncy castles.

Responsibility of the Occupier

• An occupier owes the same duty, the common duty of care, to all visitors (s 2(1)).
• This is open to restriction, modification, and exclusion.
• An occupier owes a positive duty to act 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" (s 2(2)).
• It depends on the circumstance of the individual visitor and the reason for their presence.
• Portsmouth Youth Activities Committee v Poppleton [2008] C was injured after falling from a climbing wall. He sued D for failing to supervise or warn about the matting's limitations.
• D was not liable. C's injuries were due to their actions, not the premises.
• Edwards v London Borough of Sutton [2016] Not every accident is someone's fault, and an occupier is not an insurer against injuries sustained on their premises.

Standard of Care

• Standard of care means that whether D has discharged their duty depends on the circumstance of each individual visitor and the purpose for which they are there.

Persons in the Exercise of a 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 [1963] Two chimney sweeps died trying to mend a coke-fired boiler.
• An occupier can reasonably expect a specialist to appreciate and guard against trade-related dangers.
• Warning the sweeps to leave the room sufficed to confirm the sweeps were ‘reasonably safe’ under s 2(4).

Warnings

• Occupiers can discharge their duty by warning of the danger either verbally, visually, or in writing.
• A warning only works if, in all circumstances, it is enough to enable the visitor to be reasonably safe.
• Lord Denning MR explains how a warning can work in Roles v Nathan

Volenti

• An occupier owes no duty toward a visitor in respect of risks willingly accepted by them (OLA 1957, s 2(5)).

Obvious Dangers

• Darby v National Trust [2001] C drowned swimming in a pond owned by the National Trust. Visitors swam there often. A legible, but inconspicuous notice forbidding swimming existed near the car park, but not around the pond.
• The National Trust did not have a duty to warn of obvious dangers and had been reasonable when considering if C was reasonably safe when using its premises.

Engaging Contractors

• Gwilliam v West Hertfordshire Hospitals NHS Trust [2002]
• C, 63, negligently injured using a 'splat wall' run by a contractor at an NHS charity event. The contractor's insurance had lapsed. C sued the NHS Trust for not ensuring proper insurance.
• While the NHS Trust owed C a duty, they'd done enough by engaging the contractor to begin with. Requiring them to check the policy's specifics was judged unreasonable.

Occupiers' Liability Act 1984

• An occupier owes a duty if certain conditions are met in s 1(3) to take reasonable care that non-visitors don't suffer injury due to the state of the premises or things done/omitted on them.
• Occupier and premises are defined as the same in Occupiers, OLA 1984, s 2(a) – same as 1957 Act

Circumstances for Owning Duty to Non-Visitors

• OLA 1984, S 1 (3) & (4)
• An occupier owes a duty to another (not being his visitor) in respect of any such risk under subsection (1):
  • (a) if they are aware of the danger or have reasonable grounds to believe it exists
  • (b) if they know or have reasonable grounds to believe the other is in the vicinity of the danger or may come into it (legally or not); and
  • (c) if the risk is one against which, in all circumstances, they may reasonably be expected to offer some protection

Tomlinson Case

• In Tomlinson v Congleton Borough Council [2003]
  • Part 2 of the case states that C's status as a park visitor ended when he ignored the no-swimming signs and entered the lake, making him a trespasser. The claim under the 1984 Act failed as the injury stemmed from his own actions, not the state of the premises.

Lord Hoffman Definition of the Tomlinson decision

• There was nothing particularly dangerous at Brereton Heath. Tomlinson voluntarily engaged in an inherently risky activity. His injury wasn't due to the state of the premises.

Applying 1984 Act S1(3)

• Council must have known that there was a possibility that some boisterous teenager would injure himself by horseplay in the shallows
• Council plainly knew that swimmers came to the lake and Mr Tomlinson fell within that class.

Content of the Occupiers Duty

• OLA 1984, s1(4): An occupier's duty is to take reasonable care in all circumstances to prevent injury on the premises due to the danger.
• COMPARE with OLA1957, s 2(2): where a positive duty exists to ensure the visitor’s reasonable safety.

Dangerous State of Premises

• Keown v Coventry National Health NHS Trust [2006]
• C, 11, injured climbing a fire escape. D knew that children played there. C admitted his actions were dangerous.
• D was not liable. The duty to non-visitors is to guard against injuries from the state of the premises, not activities upon them. The fire escape itself was not the danger.

Discharging Duty

• The more obvious the danger and the more accessible the premises to non-visitors (especially children), the more an occupier should positively act to mitigate the harm risks.
• Similar to the 1957 Act, the courts weigh up standard common law factors like resources and burden.

Discharging Duty: Warnings

• OLA 1984, S 1(5): Duty can be discharged by taking reasonable steps to warn of the danger or discourage people from incurring the risk
• Contrast with the OLA 1957 test
• Volenti: OLA 1984, S 6
• There is no duty if risks are willingly accepted by the non-visitor
• Ratcliff v McConnell [1999] C was injured swimming at night in a closed, fenced-off pool with warning signs.
• D owed no duty because C was fully aware of the risks. C knowingly waived protection under OLA 1984.

Additional Considerations

• After establishing duty and breach, remember to consider causation and defenses.