Occupiers Liability - Law for Surveyors

The law of Occupiers Liability sets out the duty of care owed to visitors or trespassers by the occupiers of premises. It is a distinct area of the law of tort, specifically the tort of negligence.

Precedent initially developed through common law, but by the early part of the twentieth century, claims under this area of law became increasingly common. This ultimately led to the creation of two statutes which are applied in a modern context; the Occupiers Liability Act 1957 (OLA 1957) and the Occupiers Liability Act 1984 (OLA 1984). 

  

The two acts share much in common, but whereas the OLA 1957 act sets out the occupier’s duty of care to visitors, the OLA 1984 set out the duty of care to non-visitors (trespassers). The second act has its foundations laid in the first, so it’s appropriate to begin with some of the main elements of the OLA 1957.

What is an “occupier” under the act?

Interestingly, the act does not explicitly define what an occupier actually is. However, case law suggests that an occupier is a person, or persons who has or have occupational control of the premises. It follows from this that they do not actually have to be its physical inhabitant to owe a duty of care under the act. Nor does a person need to be the owner of a property to be considered its occupier

There does not need to be exclusive control over the premises for a person to be determined its occupier. Indeed, the complex structure of modern property arrangements would mean that there would often be two or more occupiers who may owe a duty of care under the act. For example, a commercial building would have an owner, perhaps several tenants, one or more facilities management organisations and so on, all of whom might be considered occupiers according to the definition above.

The important message here is that an absentee owner or  landlord cannot necessarily avoid a duty of care by laying liability at its tenants or other occupiers doorstep. Conversely, neither can an occupier rely on the duty of care owed by the owner or landlord. The incidence of liability will very much turn on the facts of the case.

This was illustrated in AMF International Ltd v Magnet Bowling Ltd (1968). In this case, Magent Bowling were contracted by AMF International to install specialises ten-pin bowling facilities. A severe rainstorm damaged a large amount of timber on the site needed for the building work. The courts determined that both AMF and Magnet were to be considered occupiers under the OLA 1957.

What are “premises” under the act?

The definition of premises not limited to built real estate, it includes; land, vehicles, vessels, aircraft etc. Essentially any physical environment over which a person or persons might exert control.

What is a “visitor” under the act?

Clearly, someone who has been expressly invited to enter the premises will be considered a visitor. Less obvious is the concept of those on the premises in accordance with implied permission.

Implied permission is where the occupier, by word, action or lack of objection could be reasonably seen to grant a person the right to visit the premises. Postal workers and meter readers might fall into this class, but the existence of implied permission will often be determined by the facts of the case.

It is important to note that once permission has been granted, it can also be withdrawn and once this has been clearly communicated to the visitor, they will become a trespasser should they refuse to leave.

Those who have been granted contractual permission to enter will be considered visitors, for example a cinema goer with a valid ticket or a hotel guest. Such persons will also be subject to the withdrawal of permission mentioned above and also be affected by any time constraint that is expressly or implied in the contract. Taking again the example of a cinema goer, their permission to remain in the cinema may expire after a reasonable time after the end of the film, or before the closure of the premises due to normal hours of operation.

Those who are entitled by law to enter the premises will be considered visitors under the act. Examples might include police officers with a warrant or customs and excise officers. It is not a given that the an occupier will have the right to withdraw permission in theses cases.

Those who enter by means of a public or private right of way are not considered visitors under the act.

What is the extent of the occupiers liability?

The occupiers liability is one of a common duty of care to visitors to the premises. Section (1). of the act sets out that this duty of care is owed in respect of dangers; 

• due to the state of the premises
• due to things done or omitted to be done on the premises 

To illustrate this, imagine that a leaking roof in a cinema has caused water to pool on a marble floor, causing a visitor to slip. The state of the premises has allowed the ingress of the water and the occupiers have omitted to effect a repair. Furthermore they have omitted to clear the water or erect a suitable warning sign. this illustrates a case where the state of the property and an omission to act have led to a breach of duty of care.

If the pooling of water had been caused by a door that had been inappropriately propped open during a spell of bad weather, this might illustrate a case of where a thing had been done, leading to a breach.

 Section (2). of the act states that an occupier:

• should take such care as is reasonable in the circumstances of the case to see that the visitor will be reasonably safe in using the premises for the purposes for which he or she has been invited or permitted to enter.

We can see here that there is a contextual approach to the duty of care and the way in which it should be discharged. In the example of the cinema above, it can be argued that had the area been cordoned off, enabling cinema goers to safely enter and watch a film, that would have been sufficient. However, if the ingress of water had been at a velodrome, above the track, cordoning off the area would not be acceptable. The visitor could not be expected to safely use that track, even with only a small slippery area excluded.

What  will the courts consider when establishing the existence and extent of a breach of duty of care?

The courts will consider the vulnerability of the class of visitor when assessing whether the occupier has discharged its duty of care. A common example is that the occupier must be prepared to accept that children are likely to be less careful than adults.

They will also consider whether the claimant was visiting the premises to undertake works as a part of their profession. This is particularly relevant to building and maintenance contractors.

For example, a professional engineer visits the cinema to service a projector and cuts her hand on its mechanism. As this is a direct result of the work itself, the occupier of the premises is unlikely to be held liable. However, if the same engineer suffers some indirect damage, for example had slipped on the pool of water mentioned above, the occupier is likely to be held liable.

The existence of warning notices may be sufficient. to discharge the occupier’s duty of care if they can be proven to enable a visitor to be reasonably safe. However this is not automatic and cannot be relied upon as the devil will very much be in the detail.

Where the damage has been caused by the action or inaction of an independent contractor engaged by the occupier, the duty of care will be discharged so long as;

• the appointment of the contractor was a reasonable one,
• the occupier had taken necessary steps to check the competence of the contractor;
• the occupier had checked the work or where necessary appointed a qualified professional to do so. 

The courts will also accept a contractual agreement to waive the occupiers liability to the visitor. However the terms must not contravene the Unfair Contract Terms Act 1977 (UCTA).Nor should it diminish liability to any level less than that owed to a trespasser (below). Such terms can be express or implied.

If a claim is successful, what can a claimant expect to sue for?

A successful claim under the OLA 1957 enables claims for personal injury, damage to property or both.

What are the defences available to the occupier?

Where risks were willingly taken by the visitor there is a defence under volenti non fit injuria (to one who volunteers, no harm is done). This is an absolute defence where proven.

Where there can be proven to be contributory negligence, that is, where the claimant has failed to take reasonable care to protect themselves from harm, there may be a whole or partial defence.

Trespassers and the OLA 1984

The OLA 1984 defines an occupier and premises in the same way as the OLA 1954, but extends the duty of care to Non-visitors so long as; 

• The occupier is aware of the danger or has reasonable grounds to believe it exists.
• The occupier knows or should reasonably know that the non-visitor is in the vicinity of the risk; or is likely to enter the vicinity
• The risk is one that’ given the circumstances, the occupier could reasonably be expected to offer protection.

What will the courts consider when establishing the existence and extent of a breach of duty of care to non-visitors?

The courts will consider a number of factors such as; the age of the non-visitor, the method of entry, the nature of the occupiers business and the extent of the risk.

The erection of signs may again discharge the occupier's duty of care. But particular caution must be taken. The very nature of trespass means that the location of the sign might not coincide with the entry point. In addition, a sign simply declaring “keep out” is not sufficient, partly because it is by no means risk-specific. A further consideration, linked to the paragraph above, is that signs are often not effective against children.

In previous case law, there was a consideration of “common humanity”. In practical terms, this means that the courts will consider how burdensome it may have been for the occupier to affect sufficient precautions given their own circumstances. This is no longer the case, although in reality the courts will often take this into account.

What are the defences available to the occupier?

Both Volenti (consent) and contributory negligence are available. Contractual exclusion of liability is a grey area, as whilst the 1957 act expressly refers to this right subject to UCTA 1977, the 1984 act does not. This seems to be a legislative oversight that has yet to be addressed, although such provision might enable occupiers to diminish liability to the point of rendering the act irrelevant.

If a claim is successful, what can a claimant expect to sue for?

The OLA 1984 only allows for claims for personal injury, excluding claims for property.

Bermingham, V. (2002). Tort. London: Sweet & Maxwell.

CEM, (2012). All Papers. MSc - Law for Surveyors. [online] Reading: CEM. Available at: http://learn.cem.ac.uk/mod/folder/view.php?id=98458 [Accessed 1 Mar. 2015].

 http://e-lawresources.co.uk/

 Stockdale, M. (2011). Galbraith's building and land management law for students. Oxford: Butterworth-Heinemann.