We’ve talked about the Occupiers Liability Act (OLA) in previous blog posts considering both anti climb wall toppings and specifically anti climb spikes. In this post we clarify what is meant by ‘Occupiers Liability’.
We have previously highlighted how, under the Occupiers Liability Act 1957 (OLA 1957), the person who occupies land can be held liable when death, injury or property damage happens to a lawful visitor on that land. For a claim to arise there must be a duty of care and breach of duty, causing damage or injury.
Who is the Occupier?
Under the Occupiers Liability Act 1957 the occupier of a property is the person in control of the land, premises, building, warehouse, office, barn, stables or whatever else might exist.
The determination of who is in control is based on:
- Whether a person is the owner of the property or premises.
- Whether they had exclusive possession of the property or premises.
- Whether they had the immediate right to enter and use the property or premises.
- A manager can, for example, can be considered to be ‘in control’ and therefore fulfils the requirements to be defined as the occupier.
- Also, its possible for multiple people to be legally recognised as the occupiers of a premises or property.
Another important point to understand is that local authorities, companies and organisations as well as individuals and partnerships can all be recognised as occupiers under the OLA 1957.
What are Premises?
Under the OLA 1957 premises are defined as any fixed or movable structure. This can include buildings, warehouses, offices, factories, houses and land, as well as any vessel, vehicle or aircraft (including coaches, buses, boats and ships). It is worth noting that chairs, ladders, scaffolding and lifts have all been construed to be premises.
Who are Lawful Visitors?
Under the OLA 1957 a lawful visitor is a person who has been invited onto the premises by the occupier. The term also includes those who enter the premises in the exercise of a right conferred by law such as police officers, customs and excise inspectors and fire officers.
What is the Common Duty of Care?
Section 2 of the OLA 1957 states that the common duty of care:
“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”.
This indicates how the standard of care can vary depending on the circumstances and nature of the visit. The OLA 1957 highlights specific details of where the standard of care can vary. For example, for child visitors occupiers must be prepared for children being less careful than adults and therefore requiring a higher duty of care.
Who are Classed as Trespassers?
The Occupiers Liability Act 1984 (OLA 1984) refers to people other than legitimate visitors including trespassers and those entering property or premises with criminal intent.
A duty of care toward trespassers and criminals exists when the occupier is aware of dangers or if the occupier knows the trespasser or criminal will be near a danger. The occupier has a duty of care if they ought to reasonably have thought about providing some protection to the other person (trespasser or criminal).
Under OLA 1984, no duty will exist when a person willingly accepts a risk when they trespass on a certain type of land.
Occupiers Liability Defence
It's useful to be aware of valid defences that can be used in legal actions related to occupiers liability:
- Consent of the visitor. If a visitor is aware of a risk and this is willingly accepted then the occupier will not be liable for any damage suffered.
- Contributory negligence. If a visitor fails to take reasonable care for their own safety damages may be reduced under the Law Reform (Contributory Negligence) Act 1945.
- Exclusion of liability. It is possible for the occupier to exclude their liability by means of an agreement. But for businesses this may fall foul of the Unfair Contract Terms Act 1977.