Introduction
The Occupiers' Liability Act 1957 (OLA 1957) is a critical piece of legislation that determines the duty of care owed by individuals who occupy or control premises to those who visit those premises. This Act establishes a uniform "common duty of care," replacing the previous complexities of common law distinctions between invitees and licensees. The core principle requires occupiers to take reasonable steps to ensure the safety of visitors using their premises for the permitted purpose. Specifically, the Act stipulates that this duty extends to both the state of the premises and the activities occurring on them, whether by the occupier or others. To establish liability under this Act, the claimant must demonstrate they were a lawful visitor, suffered injury on the premises, and that the occupier breached the common duty of care resulting in the harm.
The Common Duty of Care
Section 2(2) of the OLA 1957 outlines the "common duty of care" as a requirement for occupiers to take such care as is reasonable in all circumstances to ensure that visitors are reasonably safe when using the premises for permitted activities. This duty is not absolute; it requires reasonable, not perfect, safety. This standard is flexible and depends on factors such as the nature of the premises, the visitor's purpose, and the specific risks involved. Crucially, the duty applies to the state of the premises and things done or omitted on the premises. It is worth noting that according to section 2(1) the occupier can restrict, modify, or exclude his liability towards any visitor to the extent he is able. This does not apply, however, if the premises are used for business purposes. Under section 2(1) of the Unfair Contract Terms Act 1977, any exclusion or restriction of liability for death or personal injury arising from negligence (which includes breach of the common duty of care) is void, whereas excluding liability for property damage is subject to the reasonableness test under section 2(2) of the same act.
Specific Considerations for Children and Skilled Visitors
The Act acknowledges that specific categories of visitors require tailored considerations. Section 2(3)(a) explicitly states that occupiers must be prepared for children to be less careful than adults. This means occupiers of areas that are reasonably accessible to children must anticipate and mitigate risks that might be obvious to an adult but not to a child. This was exemplified in the case of Glasgow Corp v Taylor [1922] 1 AC 44, where a seven-year-old child died from eating poisonous berries in a park, of which the council knew were poisonous but took no precautions. In contrast, section 2(3)(b) provides a safeguard for occupiers dealing with skilled visitors. This section allows occupiers to expect that a person, in the exercise of their profession, will appreciate and guard against any special risks ordinarily incident to their calling, so long as the occupier does not interfere with their ability to do so. Roles v Nathan [1963] 1 WLR 1117 is a key case, whereby chimney sweeps died because they did not guard against the risk of carbon monoxide in a chimney they were sealing up. The occupier was not held liable as the sweeps should have been aware of this risk. It is important to note that if the danger is outside the scope of the skilled visitor's trade, the occupier cannot rely on this section to absolve liability.
Warnings and Independent Contractors
A critical aspect of an occupier's responsibility is the provision of adequate warnings. Section 2(4)(a) clarifies that merely providing a warning is not enough to absolve the occupier of liability. The warning must, in all circumstances, be sufficient to enable the visitor to be reasonably safe. This means that the warning must be clear, comprehensible, and reasonably specific to the hazard. If a warning is insufficient, the occupier may still be liable for injury, even if a warning was present. This is further exemplified in Staples v West Dorset District Council [1995] 93 LGR 536, whereby the council did not have to warn about slippery algae on a harbour wall, as the claimant was already aware of the danger, and therefore a warning would have provided no new information. Moreover, Section 2(4)(b) deals with liability arising from the actions of independent contractors. The Act states that an occupier is not automatically liable for dangers created by faulty work completed by an independent contractor, provided the occupier acted reasonably in entrusting the work to a competent contractor and took steps to satisfy themselves that the work had been properly executed. The occupier needs to check that the work has been done properly, and if they fail to do so, and the work was done negligently, then the occupier would be liable.
Defenses and Volenti Non Fit Injuria
The OLA 1957 provides certain defenses that occupiers can use to mitigate or avoid liability. According to section 2(5) of the Act, the common duty of care does not impose any liability on an occupier in respect of risks that the visitor willingly accepted. The defence of "volenti non fit injuria" (to a willing person, injury is not done) operates under similar principles of any case involving negligence. For this defense to succeed, it must be shown that the visitor had a full understanding of the nature and extent of the risk and willingly accepted it. The case of White v Blackmore [1972] 2 QB 651 illustrates the limits of this defence, where an exclusion clause was deemed effective, although the defence of volenti failed due to lack of full awareness of risk by the injured party. Furthermore, under the Law Reform (Contributory Negligence) Act 1945, any damages awarded to a claimant may be reduced in proportion to the extent that they were themselves negligent and failed to take reasonable steps for their own safety. The case of Simms v Leigh RFC [1969] 2 All ER 923 shows an example of the defence of volenti being effective. Here, a Rugby player was injured in a rugby match after being tackled into a wall at the side of the pitch, and his claim was unsuccessful due to the willing acceptance of risk.
Case Law and Practical Applications
Several cases provide clarity on the practical application of the OLA 1957. Jolley v Sutton LBC [2000] 1 WLR 1082 highlights the issue of foreseeability and children. The case established that it is not necessary for the precise manner of injury to be foreseeable, rather a broad description of the risk will suffice, especially in cases involving children. Ferguson v Welsh [1987] 1 WLR 1553 demonstrates the complexity of establishing visitor status and the scope of an occupier's responsibility when subcontractors are involved. In this case, despite the contractor not having the authority to sub-contract, an employee of the sub-contractor was still deemed a visitor of the occupier, who had given the contractor ostensible authority to sub-contract. Harvey v Plymouth CC [2010] EWCA Civ 860 is a prime example of how implied consent to become a visitor cannot be expanded based on the foreseeability of the actions of a claimant. Here, the court held that the claimant, who was fleeing a taxi without paying, was not a visitor while running through the park due to his non-recreational use of the land. These cases, amongst others, clarify specific aspects of the OLA 1957 and provide a deeper understanding of how to apply this act in a practical setting.
The Occupiers' Liability Act 1984 and Trespassers
It is crucial to differentiate the OLA 1957 from the Occupiers' Liability Act 1984 (OLA 1984). The 1984 Act primarily addresses the duty of care owed to those who are not visitors, such as trespassers. The OLA 1984 establishes a more limited duty of care, as occupiers are not required to safeguard trespassers to the same extent as visitors. The OLA 1984 imposes a duty on an occupier if: (a) they are aware of the danger or have reasonable grounds to believe it exists, (b) they know or have reasonable grounds to believe that a trespasser is in the vicinity of the danger or may come into the vicinity, and (c) the risk is one against which they may reasonably be expected to provide some protection. The duty is to take such care as is reasonable in all circumstances to ensure that the non-visitor does not suffer injury on the premises. For example, Tomlinson v Congleton BC [2004] 1 AC 46 confirmed that there was no duty to protect someone from the obvious risk of diving into a lake in which the risk was deemed to have arisen from the actions of the claimant himself and not from the state of the premises. The scope of liability is more limited than for lawful visitors, focusing on obvious dangers and requiring a level of awareness on the part of the occupier. The 1984 act is also more limited in that it does not apply to damage to property and only applies to personal injury or death.
Conclusion
The Occupiers' Liability Act 1957 remains a vital piece of legislation in tort law, establishing the standards of care that occupiers of premises owe to lawful visitors. The "common duty of care" requires occupiers to maintain reasonable safety, considering the specific needs of diverse visitor categories, including children and skilled professionals. The Act includes provisions for the effectiveness of warnings, the responsibilities regarding independent contractors, and the defenses available to occupiers against claims for injury. The interpretation and application of the Act are shaped by significant cases, which clarify many complexities of occupiers' liability. By contrasting the 1957 act with the OLA 1984, one can observe that the duty towards trespassers is more limited, highlighting that occupiers are not expected to guarantee the safety of all persons on their land, especially when there are clear dangers present and visitors willingly place themselves at risk. This balance, reflected by rulings such as in Tomlinson v Congleton BC, is a key aspect of the legislation, balancing societal demands for safety with individual responsibility.
