OCCUPIERS LIABILITY

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OCCUPIERS LIABILITY

• LAW AND POLICY

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THE 1957 ACT

• Replaces the common law
• Consolidates the law
• Imposes duties of care on occupiers
• Deals with duties owed by contractors
• Covers liability for injuries arising out of the
  state of premises or things done or omitted to be
  done on them
• Does not cover duties to trespassers

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Section 2 (1)

• 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

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WHO IS THE OCCUPIER?

• No statutory definition
• Usually the person in control of the premises at
  the relevant time
• Question of fact in each case
• Court decides
• Can be more than one occupier

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OCCUPIERS

• Person renting an allotment (Revill v Newbury)
• Absentee landowner (Harris v Birkenhead
  Corporation)
• Owner of pub and manager (West v Lacon)
• NHS Trust where charity fair was held on premises
  (Gwilliam v West Herts Hospital NHS Trust)
• Local authority when school premises were used
  for an evening youth club (Young v Kent County
  Council)

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THE COMMON DUTY OF CARE

• 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 to be there
• Section 2 (2)

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PREMISES

• Football stadium
• Lift
• Ladder
• Ship
• Hospital
• House
• Pharmacy
• Portable caravans

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VISITORS

• People lawfully on premises
• People invited or permitted to be on premises
• People using premises for certain purposes
• People with implied licences
• Not trespassers

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EXAMPLES OF RELEVANT CIRCUMSTANCES

• An occupier must be prepared for children to be
  less careful than adults
• An occupier may expect that a person in the
  exercise of a trade or calling, will appreciate
  and guard against any special risks which are
  ordinarily incidental to that, so far as he
  leaves them free to do so.
• (See Roles v Nathan 1963 1 WLR 1117)

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BREACH OF DUTY

• Warnings are permitted but may not absolve an
  occupier from liability unless they make the
  visitor safe in all the circumstances
• Independent contractors may be liable for injury
  to visitors as long as the occupier was
  reasonable in employing them
• Visitor can consent to run risks within legal
  limits

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Subjective approach

• Case law suggests that occupiers must take
  particular care in the case of children
  allurements
• Warning notices may not be effective if the
  visitor cannot read them

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WARNINGS AND EXCLUSIONS

• Warnings are permitted
• Exclusions of liability are governed by the
  Unfair Contract terms Act 1977
• Mind your head
• The occupiers accept no responsibility for
  injury to patients on these stairs
• Warning slippery surface
• No admittance beyond the barrier
• Danger. Shallow water. No diving. The
  occupier will not be liable for injury to divers

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UCTA - s 2(1)

• A person may not by reference to any contract
  term or to a notice given to persons generally or
  to particular persons exclude or restrict his
  liability for death or personal injury resulting
  from negligence
• In the case of other loss or damage, a person
  cannot so exclude or restrict his liability or
  negligence, except in so far as the term
  satisfies the requirement of reasonableness

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UCTA

• Section 2 applies only to business liability
• That is liability for breach of obligations
  arising in the course of a business (his own or
  anothers) and
• Liability arising from the occupation of premises
  used for the business purposes of the occupier

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NEGLIGENCE in UCTA

• Negligence includes breach of the common duty
  of care imposed by the Occupiers Liability Act
  1957

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BUSINESS

• Business includes a profession and the
  activities of any government department or local
  or public authority
• NHS Trust premises?
• GP surgeries?
• Pharmacy premises?
• Dental surgeries?
• Charity premises?
• Schools
• Universities

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GWILLIAM v WEST HERTFORDSHIRE HOSPITAL NHS TRUST
(2002)

• Trust had a duty to ensure that contractors
  providing fairground equipment on premises were
  adequately covered by insurance
• Court of Appeal
• 2002 EWCA (Civ) 1041

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OCCUPIERS LIABILITY ACT 1984

• Liability may be excluded in the case of people
  entering business premises for the purpose of
  education or recreation unless access to the
  premises falls within the main business purpose
  of the occupier.
• Hospital swimming pools used by staff?
• University grounds used to fairs and
  fundraising events?

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DUTIES TO TRESPASSERS

• Definition of a trespasser a person whose
  presence is unknown, or if known is practically
  objected to
• Limited duty of common humanity owed at common
  law after 1972 and then only to child trespassers
• Duties owed by statute since 1984

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OLA 1984

• An occupier owes a duty to persons other than
  visitors in respect of injury on the premises by
  reason of any danger due to the state of the
  premises or things done or omitted to be done on
  them.

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Section 1(3) 1984 Act

• Duty is owed if the occupier
• Is aware of the danger or has reasonable grounds
  to believe it exists
• Knows or has reasonable grounds to believe that
  the other person is in the vicinity of the
  danger, or that he may come into the vicinity,
  and
• The risk is one against which in all the
  circumstances of the case he may reasonable be
  expected to offer the other some protection.

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Keown v Coventry NHS Trust 2006

• 11 year old trespasser recognised the danger
• Danger did not arise out of the state of the
  premises
• Trust not liable

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DEFENCES

• Consent (volenti)
• Exclusions?
• Contributory negligence
• Ex turpi causa non oritur actio
• Case studies reveal the nature of the duty