Outcome C: The Law on Occupiers’ Liability and Vicarious Liability
Occupiers Liability
- This area of tort involves the liability of an occupier to both visitors and persons other than visitors to his or
her premises.
- The Occupiers Liability Act 1957 which covers visitors
- The Occupiers Liability Act 1984 which covers persons other than visitors.
Occupiers Liability Act 1957
- This act concerns the duty owed to visitors
- An occupier of a premises owes a duty of care to lawful visitors and if that duty is broken and the visitor is
injured, they are entitled to receive compensation from the occupier.
- A ‘visitor' is often referred to as a ‘lawful visitor’ in order to distinguish him/her from unlawful visitors or
trespassers.
- Lawful visitor is someone who has permission to be on another's premises.
- Occupier is the person who is in control of the premises, usually owner or tenant.
- The Occupiers Liability Act 1957 does not define who is the occupier, but it does state that the rules of
common law shall apply - s 1(2).
Occupiers Liability Act 1957 - Lawful Visitors - Adult Visitors
- People who have been invited to enter and who have express permission to be there.
- People who may have express or implied permission to be on the land for a certain length of time.
- Those with contractual permission, for example a person who has bought an entry ticket for an event.
- Those given a statutory right of entry such as meter readers and police constables exercising a warrant.
- An adult visitor is owed the common duty of care; according to s2(2) of the Occupiers’ Liability Act 1957
this means 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 purpose for which he is invited to be there’
- The occupier does not have to make the premises completely safe for the visitor only to do what is
reasonable.
- Laverton v Kiapasha (Takeaway Supreme) 2002 - An occupier does not have to make premises
completely safe, only to do what is reasonable.
- Dean and Chapter of Rochester Cathedral v Debell 2016 - An occupier does not have to make premises
completely safe, only to do what is reasonable.
- Judgements in both cases emphasise that the common duty of care imposes a duty on the occupier to
keep the visitor reasonably safe, not necessarily to maintain completely safe premises.
- The state of premises must pose a real source of danger before foreseeability of the risk of damage can
be found,
- It is possible that if the cases had been decided in favour of the visitor, it could have opened the
floodgates to a tide of claims against occupiers and created a very high level of responsibility for the
safety of visitors.
- A visitor may be a lawful visitor for the purpose of the Occupiers’ Liability Act 1957 but if they exceed their
permission, for example, by entering a room they have been told not to enter, they may become a
trespasser and lose the protection of the Act.
, Occupiers Liability Act 1957 - Lawful Visitors - Childrens
- The occupier will owe children coming onto the premises the common duty of care, but there is an
additional special duty owed to child visitors.
- Under s2(3) of the Occupiers’ Liability Act 1957, the occupier ‘must be prepared for children to be less
careful than adults’ and as a result ‘the premises must be reasonably safe for a child of that age’.
- For children the standard of care is measured according to the age of the child.
- The occupier should guard against any kind of allurement or attraction that places a child visitor at risk
of harm.
- Taylor v Glasgow Corporation 1923 - An occupier owes a duty to protect children from allurements on
the premises.
- There is a defence for the occupier when very young unsupervised children are injured where the
courts will consider that the child should be under the supervision of a parent or other adult and they
will not find the occupier liable.
- Phipps v Rochester Corporation 1955 - The occupier is entitled to expect that parents should not allow
their young children to go to places that are potentially unsafe.
- The difficulty with this defence is that there is no set age limit, even if there is an allurement on the
premises, there will be no liability on the occupier if the damage or injury suffered is not foreseeable.
- Jolley v London Borough of Sutton 2000 - An occupier owes the common duty of care to child visitors
for injuries that are reasonably foreseeable.
Occupiers Liability Act 1957 - Lawful Visitors - Professionals
- The occupier will owe the common duty of care to a professional coming onto the premises.
- However, by s2(3)(b) of the Occupiers’ Liability Act 1957, an occupier can expect that a person in the exercise
of their work will ‘appreciate and guard against any special risks ordinarily incident to it so far as the occupier
leave him free to do so’
- The effect of this rule is that an occupier will not be liable where a professional fails to guard against risks that
they should know about or should be expected to know about.
- Roles v Nathan 1963 - Occupiers can expect that a professional will guard against risks associated with their
work.
- This rule, which acts as a defence to an occupier, only applies where the professional visitor is injured by
something related to their trade.
- If the professional is injured by something different, the occupier will still owe the common duty of care.
Occupiers Liability Act 1957 - Lawful Visitors - Independent Contractors
- A lawful visitor will be owed the common duty of care while on the occupier’s land.
- If the visitor is injured by a professional’s negligent work, the occupier may have a defence and be able to pass
the claim to the professional.
- S2(4) of the Occupiers Liability Act 1957 states - ‘ Where damage is caused to a visitor by a danger due to the
faulty execution of any work of construction, maintenance or repair by an independent contractor employed by
the occupier, the occupier is not to be treated without more as answerable for the danger if in all the
circumstances he had acted reasonably in entrusting the work to the independent contractor and had taken
such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and
that the work had been done properly.’
- Three requirement will apply and all have to be satisfied:
- It must be reasonable for the occupier to have given the work to the independent contractor - the more
complicated and specialist the work, the more likely it will be that the occupier gives the work to a
specialist.
- The contractor hired must be competent to carry out the task - the occupier should be advised to take
up reference or recommendations or check with a trade association and check that the contractor is
properly insured. If the contractor fails to carry appropriate insurance cover this could be a fair
indication that the contractor is not competent.
- The occupier must check that the work has been properly done - the more complicated and technical
the work and the less expert the occupier, the more likely that this condition will require the occupier to
employ an expert such as an architect or surveyor.
- If all three conditions are satisfied, the occupier will have a defence to a claim and the injured claimant will have
to claim directly against the contractor.
- Bottomley v Todmorden Cricket Club 2003 - An occupier is expected to check, or at least enquire about the
qualifications and competence of contractors.
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