Revise Occupiers' liability for Cambridge 9084 (4.2.1)

Occupiers' liability is a distinct area of tort law that concerns the duty of care owed by those who occupy property to people who visit or enter upon that property. The law is primarily governed by two key statutes: the Occupiers' Liability Act 1957 (OLA 1957), which deals with lawful visitors, and the Occupiers' Liability Act 1984 (OLA 1984), which covers non-visitors (trespassers). The core of this topic is determining who is an 'occupier', what constitutes 'premises', who is a 'visitor' versus a 'non-visitor', and the nature of the duty owed to each. An 'occupier' is the person with sufficient control over the premises, as established in Wheat v E Lacon & Co Ltd, and 'premises' are broadly defined to include land, buildings, and any fixed or moveable structure, including vessels, vehicles, and aircraft.

The OLA 1957 establishes a single 'common duty of care' owed by occupiers to all their lawful visitors. A visitor is anyone with express or implied permission to be on the premises, including invitees and licensees. Section 2(2) of the Act states this duty 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'. The standard is that of a reasonable occupier. The duty is to ensure the visitor is safe, not necessarily that the premises are objectively safe. For example, in Laverton v Kiapasha Takeaway Supreme, the owners were not liable for a slip on a wet floor as they had taken reasonable precautions.

The common duty of care can be adjusted for certain visitors. For children (s.2(3)(a)), occupiers must be prepared for them to be less careful than adults, especially regarding 'allurements' that may attract them to danger (Glasgow Corporation v Taylor). However, occupiers may also expect parents to exercise reasonable control (Phipps v Rochester Corporation). Conversely, for skilled visitors (s.2(3)(b)), an occupier can expect them to appreciate and guard against risks incidental to their trade (Roles v Nathan). An occupier can also discharge their duty through effective warnings (s.2(4)(a)) that are specific enough to ensure the visitor is reasonably safe, or by reasonably entrusting work to an independent contractor (s.2(4)(b)), provided they checked the contractor's competence and the quality of the work, as seen in cases like Haseldine v Daw and Woodward v Mayor of Hastings.

The OLA 1984 governs the duty owed to persons other than visitors, primarily trespassers. Unlike the 1957 Act, a duty is not automatic. An occupier only owes a duty if the three conditions in s.1(3) are met: (a) they are aware of the danger; (b) they know or have reasonable grounds to believe the non-visitor is in or may come into the vicinity of the danger; and (c) the risk is one against which, in all the circumstances, they may reasonably be expected to offer some protection. If these are satisfied, the duty under s.1(4) is to take reasonable care to see the non-visitor is not injured by that danger. Crucially, this Act only covers personal injury, not damage to property (s.1(8)). The leading case of Tomlinson v Congleton BC illustrates the application of these rules, emphasising personal responsibility for obvious dangers.

Even if a breach of duty is established under either Act, an occupier may be able to rely on several defences. The most common are consent (volenti non fit injuria) and contributory negligence. Furthermore, occupiers may try to limit or exclude their liability through notices or contract terms.

Consent (Volenti): Under s.2(5) of the OLA 1957, an occupier has no liability to a visitor in respect of risks willingly accepted by them. The visitor must have full knowledge of the nature and extent of the risk (Titchener v British Railways Board). This is a complete defence. For trespassers under OLA 1984, the same principle applies; a trespasser who appreciates the risk may be deemed to have accepted it (Tomlinson v Congleton BC).

Contributory Negligence: If the claimant's own negligence contributed to their injury, any damages awarded can be reduced under the Law Reform (Contributory Negligence) Act 1945. This is a partial defence. For example, a visitor who ignores a clear warning sign may be found contributorily negligent.

Exclusion of Liability: Under OLA 1957, an occupier can restrict, modify or exclude their duty by agreement or notice (s.2(1)). However, this is limited by the Unfair Contract Terms Act 1977 (UCTA) for business premises, and the Consumer Rights Act 2015 (CRA) for consumer notices. For example, liability for death or personal injury resulting from negligence cannot be excluded (s.2 UCTA 1977; s.65 CRA 2015). Under OLA 1984, the duty owed to trespassers cannot be excluded by a notice (s.1(5)).