Occupier's Liability PDF

OCCUPIERS’ LIABILITY By: E. Baboa Opoku Ed: Susanna Afutu  INTRODUCTION The concept of Occupiers’ Liability stems from the traditional duty at common law for owners of land to ensure the safe use of their premises by people who may come onto their land for various purposes, including t...

OCCUPIERS’ LIABILITY By: E. Baboa Opoku Ed: Susanna Afutu  INTRODUCTION The concept of Occupiers’ Liability stems from the traditional duty at common law for owners of land to ensure the safe use of their premises by people who may come onto their land for various purposes, including the wanderer or stranger. The tort however came to be regulated by statute in the UK first in 1957 when the Occupiers’ Liability Act, 1957 (OLA, 1957), was introduced. The importance of this Act is that it defined the duty of occupiers towards people who came onto their land albeit – In 1984, another Act, the (OLA, 1984), was made. This time to address the lacuna in the previous Act in relation to the duty of occupiers towards trespassers (i.e. persons who were on the premises without permission). The modern duty of occupiers of land is thus contained in these two pieces of legislation which have incorporated or codified the existing concepts of the tort under common law. OCCUPIERS’ LIABILITY: A DISTINCT SPECIES OF NEGLIGENCE? Occupiers’ Liability has been acknowledged as a distinct form of Negligence in that the concept recognises the obligation of a duty of care and a breach of that duty causing damage. In this regard, the tort is similar to the tort of Negligence possessing all the elements of the latter. – It is however distinct in the sense that, whereas this tort focuses on the duty of care owed by occupiers of land, the tort of Negligence is general and is used to establish the liabilities of a wide range of persons from ordinary/lay men to professionals such as doctors, lawyers, accountants, engineers etc. AN OCCUPIER: A QUESTION OF FACT. Like most concepts in law, the problem of an all encompassing definition remains elusive and this tort is not an exception to the problem even with two Acts. Suffice it to say however that at common law, the term ‘occupier’ is not restrictive and is thus NOT limited to land owners simpliciter. The law recognizes an occupier as a person who exercises a sufficient degree of control over a premises. – It is worth noting though that ‘premises’ are defined under the OLA, 1957 to include land, buildings and any fixed or movable structure such as a vessel, vehicle or aircraft. – The level or degree of control exercised, however, is a question of fact to be proved in every case and it is critical that the degree of control exercised by the occupier must be such as to allow or prevent a person from entering the premises.  AN OCCUPIER: A QUESTION OF FACT. (CONT’D) Thus in Harris v. Birkenhead (1976) 1 WLR 279,the occupiers were held to be the local council who had issued a compulsory purchase order on a house including a notice of entry to take over the premises at the expiration of 14 days of the notice. The occupants moved out within the specified timeline, however, the council failed to board up the house at the expiration of the notice as indicated. – The claimant, 4 year old Julie Harris, got into the premises through an unsecured door and sustained severe injuries after falling from a second floor window. The Court of Appeal held the local council liable as occupiers even though they had failed to take physical possession of the property. The court indicated that they had obtained the legal right to control the premises given the absence of the previous occupants and were thus in the best position to prevent any accidents. MORE THAN ONE OCCUPIER: POSSIBILITY/MYTH? Having established the principle that an occupier is the person who exercises a sufficient degree of control in allowing or preventing a person from being in a premises, the question as to whether there can be more than one occupier is reasonably borne out. The law actually contemplates situations in which there may be more than one occupier and both or all occupiers can be liable in respect of the same damage. – For instance; where a landlord rents an entire building of apartment flats to only one occupant, that tenant is the sole occupier for the purposes of liability. However, where the landlord retains possession of part of the building such as a common staircase, washroom or kitchen or has the right of entry with respect to repairs, then both the tenant and the landlord will be occupiers and have equal liability. MORE THAN ONE OCCUPIER: POSSIBILITY/MYTH? (CONT’D) A good example is seen in the decision in Wheat v. E Lacon & Co AC 552. The defendants were owners of the property which was run by a manager and his wife. The couple lived on the first floor and were allowed to have paying guests. A paying guest was killed as a result of bad lightning on the emergency staircase where he had fallen while trying to reach the bar on the first floor. – Even though the defendants and the couple were not liable because it was found that the bad lightning had been caused by a stranger who had removed the bulb, all three parties, i.e. the defendants and the manager and his wife were considered occupiers by the House of Lords.. LordDenning held as follows: “Wherever a person has a sufficient degree of control over premises that he ought to realize 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.”  OCCUPATION OF LAND AND LIABILITY Having established that liability under this tort arises where an occupier exercises a sufficient degree of control over land which degree is a question of fact in every case, it must be noted that liability is only applicable to situations where harm is caused by: – Dangerous conditions on the land; or – Dangerous conduct (which resembles a dangerous condition in that it is a continuing source of danger on – Therefore, liability does not arise from an isolated act of the occupier which could equally be the act of a person who is not an occupier.  LIABILITY TO VISITORS: CATEGORIES OF VISITORS Lord Denning in his definition of an occupier in the Wheat case used the term ‘visitor’. The term is central to the OLA, 1957 which provides that an occupier of premises owes a common duty of care to the visitors of his/her premises. Further, a visitor is defined as a person who is authorized either expressly or impliedly by the owner to enter the premises. Thus, a person who enters a premises without such permission is a trespasser, whose rights are governed by the OLA, 1984. LIABILITY TO VISITORS: CATEGORIES OF VISITORS It can therefore be reasonably concluded that there are 4 classes of visitors under Occupiers’ Liability today: a. Invitees; b. Licensees; c. Independent Contractors/Contractual Workers; and d. Trespassers. The first three groups are governed by the OLA, 1957 while the last group is governed by the OLA, 1984.  INVITEES As the name implies, invitees are persons who have been invited onto the land and therefore have the occupier’s express permission to be present on the land. See S. 1(2) of OLA, 1957.  LICENSEES Licensees may have either express or implied authorization from the occupier to be on the land. See again, S. 1(2) of the OLA, 1957 which does not preclude situations where a license would be implied at common law. At common law, an implied license is said to exist where there are repeated acts of trespass which have not been expressly forbidden by the landlord or occupier as was the case in Lowery v. Walker AC 10. In that case, the claimant had been injured by the defendant’s horse while cutting across the latter’s land to his destination. – The defendant was aware that members of the public had habitually used his land as a short cut for many years but had not taken steps to prevent entry onto his land. Further, the defendant was also aware of the danger/threat of the presence of his horse.  LICENSEES (CONT’D) The defendant was held liable even though the claimant did not have express permission to be on the land. It was held that a licence was implied in the repeated acts of trespass and the defendant’s acquiescence. It is worth noting that a repeated act of trespass in itself confers no license as was held in the decision of Edwards v. Railways Executive AC 737. – In the decision, the claimant used a popular spot on a railway which had often time been used by the general public as a shortcut. The spot, which had been fenced to prevent access, had often been beaten down by passers and was consequently repaired quite frequently upon reports of interference. There was witness testimony to the effect that the fence was in good repair on the morning of the incident.  LICENSEES (CONT’D) The House of Lords thus held that no license was implied as the defendant had taken reasonable steps to prevent people from accessing the route onto the railway.  LICENSEES: THE ALLUREMENT PRINCIPLE At law, the courts were likely to imply the existence of a license where the land possessed some particularly attractive feature or quality which drew people to the land. This is known as the ‘Allurement Principle.’ In Taylor v. Glasgow Corporation 1 AC 488, the claimant, a young boy, had died from eating poisonous berries from the defendant’s land. It was known to the defendants that the berries were poisonous. – However, there was no warning sign to that effect and neither had the shrub been fenced off. – The House of Lords held that the defendants were liable since they had not taken reasonable steps to fence off the poisonous berries or put any warning to that effect. More importantly, the decision was that the berries presented an allure and represented a concealed danger to children who were entitled to go on the land. LICENSEES: THE ALLUREMENT PRINCIPLE (CONT’D) With the introduction of the OLA, 1984 however, the courts became reluctant to imply a license. In Tomlinson v. Borough Council 1 WLR 705 the defendants owned a property, Brereton Heath Country Park which had previously been a sand quarry. The property had been remodelled into a park which allowed entrance to all members of the public for relaxation. The park’s most attractive feature was the man-made lake which enticed a lot of visitors, especially in the hot weather. – Swimming was not permitted in the lake however and there were notices to that effect. Further, there were rangers who had been employed to prevent people from swimming. Despite these measures, members of the public continued to swim as they ignored the warning signs and flouted the rangers’ authority.  LICENSEES: THE ALLUREMENT PRINCIPLE (CONT’D) The claimant in this case suffered a neck injury from diving into the shallow waters of the lake. The Court of Appeal held that the claimant was a trespasser despite the repeated acts of trespass by the public and the inadequate measures instituted to prevent swimming. More importantly, the Court admitted that the warning signs must have acted as an allure for rebellious macho young men who were driven by passion and youthful exuberance. However, it did not imply the existence of a license as liability of the claimant was restricted to the category of a trespasser under the OLA, 1984. Moreover, the claimant also conceded to being a trespasser. The House of Lords thus held that no risk arose from the state of the premises under S 1.(1)(a) of the OLA, 1984 but rather from the claimant’s own actions – the claimant being of full capacity and voluntarily engaging in the act which had an inherent risk.  INDEPENDENT CONTRACTORS/CONTRACTUAL WORKERS An independent contractor is a person other than an employee working under a contract for services. The principle of liability with contractual workers is that; liability lies with them for damage caused to a visitor by the danger of their faulty execution of work, where the occupier has acted reasonably in entrusting the work to them, having satisfied him/herself of the competence of the contractor, and further, that the work is properly done or executed. See S. 2(4)(b) of the OLA, 1957. – Essentially, this means that occupiers employing independent contractors will be found liable when the activities of the contractor fall bellow the common duty of care unless they take reasonable steps to satisfy themselves of the contractor’s competence and further, in circumstances where the nature of the work allows, ensure that the work has been done properly. INDEPENDENT CONTRACTORS/ Case where supervision is not required Thus in Haseldine v. Daw 2 KB 343, the occupiers of a building, where a lift plunged to the bottom of its shaft and killed the claimant instantly, escaped liability on the account that they had fulfilled their duty of care in appointing an apparently competent firm to maintain the lift. Also, it was held that the highly technical nature of the work meant that they could not be expected to check whether it had been done properly. Independent contractors – cases where supervision is required – Also, in Woodward v. Mayor of Hastings KB 174, the occupiers of a school were held liable for the injury of a child who slipped on a step that had been negligently cleaned. There was some doubt as to the status of the cleaner (i.e. an employee/independent contractor). However, the school occupiers were held liable for failing to take reasonable steps to check that the work had been done properly since the nature of the work was such that it could be easily checked.  INDEPENDENT CONTRACTORS/CONTRACTUAL WORKERS (CONT’D) For the purpose of establishing liability, it may thus be concluded that the duty of care successfully passes from the occupier to the independent contractor where the occupier a. Takes reasonable steps to ensure that the contractor is qualified for the job (i.e. competence); and b. Where applicable, ensures that the work of the contractor is properly done or executed (i.e. proper execution). – Thus, in the absence of these circumstances, the duty of care rests with the occupier who bears the burden of proving that the necessary criteria in order to establish the transfer of duty had been met. INDEPENDENT CONTRACTORS – Instances where there is no transfer of duty From the decision in Francis v. Cockerell LR 5; QB 184 however, it would seem that there are some instances where the duty of care does not transfer from the occupier regardless of the fact that the elements of competence and proper execution are met. – In the above decision, the defendant employed a competent contractor to construct stands for viewing horse races. The claimant paid to view the races from the defendant’s premises and then latter acted as the receiver of the monies to be paid for the stands. The stand had been negligently erected though the defendant was not aware of this.  INDEPENDENT CONTRACTORS/CONTRACTUAL WORKERS (CONT’D) It was held that although the defendant had not been negligent, there was an implied warranty of his contract that the premises were safe. He was thus liable as an occupier for the negligence of the contractors. The principle from the foregoing case can be stated thus, where an occupier admits people to his premises for a fee, he must provide a warranty for the safety of his premises which is the duty of care he owes to the people and the same duty of care extends to contractors employed by the occupier If the work is not properly executed or is executed without due care, then the occupier will be liable for the negligence of the contractor. See also; Ferguson v. Welsh 1 WLR 1553.  DUTY OF CARE: COMMON LAW POSITION As earlier mentioned, the primary element in establishing liability under this tort like Negligence, is the determination of a duty of care. At law, the standard of the duty of care imposed was known as the common duty of humanity as mentioned in the decision in British Railways Board v. Herrington AC 877. In that case, a 6 year old claimant had been electrocuted by passing through a gap in a fence of the defendant’s railway. It was established that the defendant was aware of the gap in the fence which had been in need of repair for several months but had done nothing about it. The question before the court was the duty owed to the ordinary trespasser. There was precedent in the decision of Addie v. Dumbreck 1928 AC 358 to the effect that no duty was owed to a trespasser.  DUTY OF CARE: COMMON LAW POSITION (CONT’D) The House of Lords however departed from this precedent in holding that the duty of care owed to the trespasser is the common duty of humanity so that the railway should have taken reasonable measures to repair or fix the fence to avoid such tragedy. Lord Pearson held as follows: – "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.  DUTY OF CARE: COMMON LAW POSITION (CONT’D) 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 other words, the Addie v. Dumbreck formulation of the duty of the occupier to trespasser is inadequate for modern conditions and its rigid and restrictive character renders it obsolete.  DOC: OCCUPIERS’ LIABILITY ACT, 1957: COMMON DUTY OF CARE Under the 1957 Act, the standard for the duty of care is called the common duty of care. S.2(2) of the OLA, 1957, provides that “the common duty of care is 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.” – This provision implies the verification of the standard of the duty of care under different circumstances. The Act however provides the standard to be observed in two instances; with children and with persons who are pursuing their calling, i.e. persons carrying out public duties.  DOC: OCCUPIERS’ LIABILITY ACT, 1957: COMMON DUTY OF CARE (CONT’D) The act provides thus:  An occupier must be prepared for children to be less careful than adults; (S.2(3)(a) OLA, 1957) and  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 (S.2(3)(b) OLA, 1957).  DOC: COMMON DUTY OF CARE: CHILDREN Where children are involved, the courts expect occupiers to observe a higher standard of care with ensuring their safety as children are mostly vulnerable and defenceless compared to adults. The courts will however take into account the age of the child to determine the level of understanding that the child should have in guarding against danger. – Thus in Titchener v. British Railways Board 1 WLR 1427, the claimant, a 15 year old girl who suffered severe injuries after being hit by a train, was held to be of full capacity and aware of the risk she took with her boyfriend when they trespassed through a broken fence to cross the defendant’s railway line. It seemed that there were repeated acts of trespass and the defendant was aware of the gap or should have become aware of it upon reasonable inspection.  DOC: COMMON DUTY OF CARE: CHILDREN (CONT’D) However, it was held that even if the defendant did owe a duty of care, he would escape liability on a plea of volenti non fit injuria since a 15 year old trespasser would be fully aware of the risk taken. See also; Jolley v Sutton 1 WLR 1082; Keown v. Coventry Healthcare NHS Trust EWCA Civ 39; Donoghue v. Folkestone Properties Ltd EWCA Civ 231. The above decisions may be contrasted with Taylor v. Glasgow Corporation.  DOC: COMMON DUTY OF CARE: CHILDREN(CONT’D) It is worth noting that the courts distinguish between little children and big children. The principle with little children is that an occupier is entitled to assume with the presence of some allurement regardless, that little children would be accompanied by an adult and not left to wander in places where it was especially unsafe. Thus, an occupier is not liable for damage or harm occasioned to small children on their property in the event where they are unaccompanied by an adult as the ultimate responsibility for small children is with the parents of the child, rather than the occupier. As may be recalled from earlier, the courts are less likely to imply a license per the existence of an allurement with the introduction of the OLA, 1984.  DOC: COMMON DUTY OF CARE: CHILDREN (CONT’D) In Phipps v. Rochester Corporation 1 QB 450, Devlin J had this to say on duty owed to children “The law recognises a sharp difference between children and adults. But there might [well 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.  DOC: COMMON DUTY OF CARE: CHILDREN (CONT’D) 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.” Thus, an occupier will not be liable for the harm done to a child, unaccompanied by an adult where they have exercised ordinary reasonable care to ensure the safety of their premises.  DOC: COMMON DUTY OF CARE: COMMON CALLING In the case of people carrying out their common calling like fire fighters or electricians, the occupier is entitled to assume that such professionals know and can safeguard themselves against any danger that can arise from the premises in relation to their calling. A firefighter is therefore expected to know the inherent dangers in the work he is called to do. See the decision in Roles v. Nathan 1 WLR 1117. See also; Salmon v. Seafarer Restaurant 1WLR 1264 Ogwo v. Taylor 3 WLR 1145 It would seem from these last two decisions that the existence of an inherent risk in the calling of most professionals would not rule out the liability of the defendant/occupier regardless of whether the risk was ordinary or extraordinary.  DOC: OCCUPIERS’ LIABILITY ACT, 1984 As earlier mentioned, the distinguishing feature of the OLA, 1984 is the duty of occupiers to persons other than his visitors. The category of persons contemplated by this act is the trespasser. In contrast with the OLA, 1957, it would seem harsh that the Act would oblige occupiers to ensure the safety of non-visitors including persons with criminal intent as seen in the decision in Revill v. Newberry 2 WLR, 239. However, suffice it to say that liability to trespassers was recognised at law, particularly child trespassers as seen in British Railways Board v. Herrington and Taylor v. Glasgow Corporation. In addition, the term occupier is given the same meaning as under the OLA, 1957 hence the protection afforded to trespassers is lower and applies only in respect of death and personal injury. It does not extend to the protection of personal property. See S.1(8) OLA, 1984). DOC: OCCUPIERS’ LIABILITY ACT, 1984 More importantly though, liability to trespassers under the OLA, 1984 is qualified by a restriction to specific circumstances. S.1(3) of the OLA, 1984 provides as follows: An occupier owes a duty to another [not being his visitor] if (a) He is aware of the danger or has reasonable grounds to believe that it exists; (a) He knows or has reasonable grounds to believe the other is in the vicinity of the danger or may come into the vicinity of the danger; [and] (b) The risk is one in which in all the circumstances of the case, he may reasonably be expected to offer the other some protection DOC: OCCUPIERS’ LIABILITY ACT, 1984(CONT’D) In Donoghue v. Folkestone Properties EWCA Civ 231, the claimant brought an action under the OLA, 1984 for a neck injury which he had sustained when he dived from the defendant’s slipway at Folkestone Harbour. The claimant had been in a haste to swim in the sea at midnight of Boxing Day and had failed to observe any dangers and obstructions, especially with the water levels in keeping with his knowledge and training as a professional scuba diver with the Royal Navy. – The obstruction that had injured the claimant was part of a permanent feature of a grid-pile which was visible during high tide. Evidence was adduced at trial to the effect that the defendant’s slipway had often time been used by patrons of the harbour in the summer. Moreover, the defendant had hired security guards to prevent people from swimming even though they were no warning signs. DOC: OCCUPIERS’ LIABILITY ACT, 1984 (CONT’D) However, when the tide went out, the grid-pile was submerged and posed as a hidden danger. At trial, the judge found for the claimant but however reduced the damages by 75% to reflect the claimant’s contribution (negligence) to his injuries. The defendant however appealed contending that the criteria for determining the existence of a duty of care under S. 1(3) of OLA, 1984, 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. In other words, in assessing whether the defendant should be aware of a person getting harmed by coming into the vicinity of the danger, the likelihood of someone diving into the water in the middle of the night in mid-winter should be looked at rather than the incidences of diving during the summer months. DOC: OCCUPIERS’ LIABILITY ACT, 1984(CONT’D) The appeal was allowed holding that the test of whether a duty of care exists under S.1(3) OLA, 1984 must be determined having regard to the circumstances prevailing at the time of the alleged breach which resulted in injury to the claimant. At the time Mr. Donoghue sustained his injury, the defendant who owned Folkestone Properties had no reason to believe that the claimant or anyone else would be swimming from the slipway. Consequently, the criteria set out in S.1(3)(b) was not satisfied and hence no  WARNINGS AND WARNING SIGNS It seems that the position of the law is that an occupier can discharge their liability if they provide adequate warning of the danger. In Roles v. Nathan 1 WLR 1117 the widows of two brothers who were found dead in a chimney basement brought an action under the OLA, 1957. The brothers had been hired as chimney sweeps by Nathan to clean the flues of the central heating system. The flues had become dangerous due to the high levels of carbon monoxide emissions. – and on the particular occasion when the incident in fact occurred. A heating engineer warned them of the danger, however, the brothers however told him that they knew of the danger 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.  WARNINGS AND WARNING SIGNS (CONT’D) The brothers ignored this advice and continued with their work. The brothers however became abusive towards the engineer and had to be removed forcibly. It was agreed that they would keep away from the chimneys and return the next day to finish the work. They were warned to keep away from the chimneys until the fumes had gone down. The next day however, the brothers were found dead in the basement since they had returned to the chimneys in the evening to finish their work. – It was held that the defendant was not liable since the dangers were special risks ordinarily incident to their calling. Moreover, clear warnings had been issued and they would have been safe had they heeded the warnings. The principle thus evolved that where clear warning signs are issued, the occupier may be absolved of liability especially where the claimant refused to heed the warnings.  WARNINGS AND WARNING SIGNS (CONT’D) The principle is however not absolute and is fettered or restricted by other conditions. arises For instance, the warning must in fact cover the danger that and not general danger. In White v. Blackmore 3 WLR 296, the claimant, the widow of Mr. White, brought an action against the defendants who were organizers of a jalopy car race Mr. White, a participant in the races, got killed when a race car plunged into the ropes where the spectators were and catapulted him 20 feet into the air. – The defendants pleaded volenti non fit injuria contending that there was a warning sign at the entrance stating that jalopy races were dangerous and that the organisers would not accept liability for any injury including death however so caused. The programme also contained a similar clause. Furthermore, Mr. White had signed a competitors list which contained an exclusion clause.  WARNINGS AND WARNING SIGNS (CONT’D) The court held the plea of volens unsuccessful stating that while there is no doubt the visitor takes on himself the risks inherent in motor racing, he does not take on himself the risk of injury due to the defaults of the organisers. People go to race meetings to enjoy the sport. They like to see the competitors taking risks, but they do not like to take risks on themselves. Even though it is a dangerous sport, they expect and rightly too that the organisers will erect proper barriers and structures and to do all that is If the organisers do everything that is reasonable, they are not liable if a racing car leaps the barriers and crashes into the crowd. However, if the organisers fail to take reasonable precautions, they cannot excuse themselves from liability by invoking the doctrine of volenti non fit injuria for the simple reason that the person injured or killed does not willingly accept the risks arising from their want of reasonable care. It is worth noting however that there is no duty to warn about obvious risks. See Darby v. National Trust EWCA Civ 189.  DEFENCES There are three defences that could avail an occupier under the tort of Occupiers’ Liability. They are: – Volenti non fit Injuria – Contributory Negligence – Exclusion of Liability Each of the defences would be briefly discussed with respect to their applications under both acts.  DEFENCES (CONT’D) Volenti Non Fit Injuria S 2(5) of OLA, 1957 provides that the common duty of care does not impose on an occupier any obligation willingly accepted by his visitor thus allowing for the application of the plea of volens. It is worth noting however that a visitor will not be deemed to have accepted a risk merely because the occupier displays a notice to the effect of the danger as was the decision White v. Blackmore. – S 1(6) of OLA, 1984 provides that no duty is owed to any person by virtue of risks willingly accepted by same person and the question of whether the risk is willingly accepted by same person is determined by the principles of common law. See the application of the plea of volens under OLA, 1984 in the case of Titchener v. British Railways Board.  DEFENCES (CONT’D) Contributory Negligence S. 2(3) of OLA, 1957 provides that in considering whether an occupier has breached the common duty of care, the courts may take into account the degree of care a reasonable visitor can be expected to show for their own safety. – Under the OLA, 1984 however it seems that the defence operates to allow occupiers to evade total liability in favour of partial liability where the occupier suspects foul play in the claimant’s coming onto his land. See the decision in Revill v. Newberry.  DEFENCES (CONT’D) Exclusion of Liability S. 2(1) of the OLA, 1957 allows the occupier to exclude liability to visitors in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor by agreement or otherwise. This implies that an exclusion clause may be used to lessen the duty of care or evade it altogether. This provision is however subject to the Unfair Contract Terms Act, (UCTA), 1977. S. 2(1) of this Act for instance, prevents an occupier from excluding liability for death or personal injury caused by negligence which is defined to include the common duty of care. Moreover, S. 3(1) of UCTA provides that an occupier cannot use a contract to reduce their obligations to less than those required by the common duty of care for visitors who are not parties to the contract.  DEFENCES (CONT’D) Exclusion of Liability The OLA, 1984 remains unclear about whether the occupiers’ duty of care may be excluded. The theory has been suggested that this lack of clarity implies the possibility of the exclusion especially since the Act does not refer it to any special rules such as exist under the UNCTA which is expressly stated to apply only to the old common law and the OLA, 1957. – The effect of this theory is that occupiers under the OLA, 1984 have a wider opportunity to exclude their liability, thereby weakening the Act considerably. – An alternative view on the other hand is that the duty imposed under the OLA, 1984 cannot be excluded because it was designed to uphold the old common law duty of common humanity. – Under common law, this duty was unexcludable because it was a minimum standard below which the law did not permit occupiers to fall, no matter how unwelcome the visitor. Unfortunately, though, there is no authority to back this view.  DAMAGES S. 1(3) of OLA, 1957 provides that a claim can be made for personal injuries and damage to property including subsequent financial loss that is not too remote. However claims cannot be made for pure economic losses. – In comparison, claims can only be made for personal injury losses including death but not for damages to property under OLA, 1984. For instance, where A drives out her brand new car in the country and wanders onto B’s property on which there is a bridge. If she drives across the bridge which collapses and deposits her car into a river, she may be able to claim for her own injuries but not for damage done to her car.