OLA 1957

Occupier
 S1(2): Duty is imposed by way of law based on occupation or control of the premises.
 Wheat v E Lacon (1966): There can be two occupiers of premises
 Harris v Birkenhead (1976):
 Physical occupation is not necessary. D, a local authority, served a purchase order on a house. The tenant left but
the local authority did not take possession of the house. A four year old girl entered the house and got injured by
falling off from the window. Local authority was deemed to be the occupier of the house.
 Page v Read (1984): Where an independent contractor enters premises to undertake work, his status as an
occupier depends on the work undertaken. A decorator painting the house would not be an occupier of the
house.

Premises:
 S(1)(3)(a): Fixed of movable structure, vessel, vehicle or aircraft.
 Wheeler v Copas (1981): A ladder was held to fall under s.1(3)(a).

Visitor:
 S.1(2): Invitees or licensees
 S.2(6): persons entering by authority of law are implied to have permission of the occupier
 IMPLIED LICENSEE
Lowery v Walker (1911): Held that the farmer had given an implied permission for people to use his farm as a
short cut since it was being used as a shortcut for 35 years.
Glasgow Corp v Taylor (1992): the boy was treated as an implied licensee when he ate poisonous berries from a
plant that was not fenced off.
 The Cargarth (1927): Whether or not a person is a visitor, it is relevant to consider the purpose for which that
person is permitted to be on the premises.

The Common Duty of care:

 S.2(2): It is for the visitor to be safe, the premises not necessarily has to be safe. The mere invitation by the
occupier creates the necessary proximity.
 Sutton v Syston (2011): Held that a reasonable walk over the rugby pitch was sufficient to discharge common
duty of care
 White Lion Hotel v James (2021): Guest fell from hotel room that lower height than required by the regulation.
There was no formal risk assessment and the cost of preventive measure was also less. Breach of common duty of
care was established with 60% CN

Discharging common duty of care:

 S.2(3)

Children
 S.2(3)(a): An occupier must be prepared for children to be less careful. Two factors are important: (1) age of the
child, (2) nature of the premises.
 Glasgow Corp v Taylor (1992): Facts mentioned above
 Jolly v Sutton (2000): The boat was meddled by two boys where one of the boys got injured. It was held that it
was reasonably foreseeable that children would play on the boat but it was not foreseeable that they would
dismantle it. The Courts will apply the rules more generously towards children.
 Phipps v Rochester Corp (1955): The occupier is entitle to assume that the children will be supervised by an
adult. A five year old boy and his sister walked across a large open space which was being developed. The child
fell in trench and broke his leg. Lord Devlin place responsibility for small children on their parents and concluded
that both parents an occupier must act reasonably. A prudent parent would realise that children will be at risk
while playing at a building site.
 Simkiss v Rhonda (1983): a seven year old fell of a steep slope. The father stated that he did not consider the
slope to be dangerous. COA held that if father did not consider the slope to be dangerous, then the council
cannot be expected to exercise higher degree of care.
 Bourne Leisure v Marsden (2009): A child drown in a pond at a holiday site. The occupier had not highlighted the
danger to bring it into parent’s attention. COA held that although the occupier is expected to reasonable
anticipate that small children might escape parent’s attention, however the occupier is not under a duty to make
the premises completely safe for the children.
Professional Visitors
 S.2(3)(b): an occupier may expect a skilled labour to take appropriate precaution against risks associated with the
work he has undertaken
 Eden v West (2002): Occupier was liable when a carpenter removed a window and a brick collapsed on him. The
occupier was expected to warn him that the brick work was not properly supported.
 Roles v Nathan (1963): two chimney sweeps were warned by an expert that the sweep hole and chamber must
be sealed before the boiler was lit. They ignored the warning and when they were overcome by the fumes.
Occupier was not liable because he had discharged his duty by warning and he could reasonably expect an expert
to appreciate the risk associated with the work undertaken.
 Ogwo v Taylor (1988): An occupier will be held liable if he had negligently created a risk (lighting the fire) that
injures the professional visitor (fireman)

Warnings
 s.2(4)(a): There’s a distinction between mere warning sign that fails to enable the visitor as to how to avoid the
danger; and a warning which enables the visitor to be reasonably safe. The later type of warning will completely
discharge occupier’s common duty of care.
 Roles v Nathan (1963): two chimney sweeps were warned by an expert that the sweep hole and chamber must
be sealed before the boiler was lit. They ignored the warning and when they were overcome by the fumes.
Occupier was not liable because he had discharged his duty by warning and he could reasonably expect an expert
to appreciate the risk associated with the work undertaken.

There is no duty to warn irresponsible visitors against obvious risk both under 1957 and
1984
Tomlinson v Congleton BC (2004): C dived into a pool that was fenced off by the council with warning signs
Lord Hoffman: “A duty to protect against obvious risks or self inflicted harm exists only in cases in which there is
no genuine and informed choice…”
Edwards v London Borough of Sutton (2016): C’s bicycle fell off a small bridge that had low parapets. Held that
the danger was obvious and the bridge had been there for many years with no occurrences of accidents. D was
not liable
Darby v National Trust (2001): C drowned in a pond of deep murky water. Held that there were no hidden
danger. The risk of drowning in a pond with murky water would have been obvious to any adult
Blackpool and Flyde College v Burke (2001): badly stacked classroom chairs fell on a student. There were no
warning signs and instructions on how to stack the chairs. College was not liable as risk of stack collapsing was
obvious.
 English Heritage v Taylor (2016): the claimant fell off down a steep slope while using an informal path. Held that
the danger was not obvious and there had been no warning sign. The defence of CN was also allowed since the
visitor took the risk of using an informal path.
 IMPORTANT: “Visitors enter at their own risk” is not a warning sign but an attempt to invoke defence of
voluntary assumption of responsibility. “No responsibility is accepted for any loss or damage on the premises” is
not a warning sign but an attempt to exclude liability.

Independent Contractors:
 S.2(4)(b)
It was reasonable to entrust the work to an independent contractor
The occupier took reasonable steps to satisfy himself that the contractor was competent
o Occupier is aware of contractor’s incompetence, like faulty work done in past
o Occupier may check that the contractor is a member of relevant trade association
o Holds relevant qualifications
o Is experienced and insured
o The occupier took reasonable steps to satisfy himself that the work had been done properly
 Bottomley v Todmorden Cricket Club: D was liable for entrusting a contractor to carry extra hazardous activity
(fireworks) on their land without ensuring if the contractor had public liability insurance.
 Gwilliam v West Hertfordshire NHS Trust: D engaged a contractor to operate a splat wall. The claimant got
injured due to contractor’s negligence. The contractor had assured D that he was insured; however, the insurance
had expired four days before the event. Held that D had discharged its duty by asking contractor if he was
insured. It would be unreasonable to expect D to check physically check the insurance documents.
 Woodward v Mayor of Hastings (1945): A child slipped on an icy school step and got injured. D argued that it had
entrusted cleaning work to an independent contractor. Held that there was no technical knowledge required to
check if the work the work done by the contractor was proper. D was held liable.
  Haseldine v Daw (1941): C got injured when a lift fell. D was not liable because it had discharged its duty by
entrusting the work to a competent contractor, and D had no technical knowledge to check if the work had been
properly done.
 AMF International v Magnet Bowling (1968): In some cases, the occupier may have to engage an independent
expert to supervise the contractor’s work.
 The occupier has no general duty to supervise the system of work used by a contractor so as to protect the
contractor’s employees from harm. However, if an occupier becomes aware of unsafe working practices of the
contractor, then he might be under a duty to ensure that contractor’s employees are safe.
Ferguson v Welsh (1987): The council was not liable as it had stipulated that the work must not be subcontracted.
C brought a claim against the council because neither the contractor nor the sub-contractor was insured.
 The words in s.2(4)(b): “satisfy himself… that the work had been properly done” imply that an occupier is not
required to supervise contractor’s work on a day-to-day basis.

Exclusion of liability
 If occupier is a business, it cannot exclude or restrict its liability for death or personal injury under s.2(1) of UCTA
1957. In case of loss or other damage to property, an occupier cannot exclude liability unless the term satisfies
the test of reasonableness.
 If occupier is a trader and visitor is a consumer, it cannot exclude liability for death or personal injury under s.65
of CRA 2015. In case of loss or other damage to property, an occupier cannot exclude liability unless the term
satisfies the test of fairness.
 Where occupier is an individual, it may exclude liability for death or personal injury if the warning sign clearly tells
the kind of danger that exists.

OLA 1984
 S.1(3): the duty will only arise if:
o Occupier is aware or has reasonable grounds to believe that danger exists
o Occupier knows or has reasonable grounds to believe that a trespasser is in the vicinity of danger or
may come into that vicinity
o The risk of injury is such against which occupier may be expected to offer some protection to trespasser
o If above conditions are satisfied, then nature of duty is as per s.1(4)
 S.1(4): the duty is to take reasonable care to see that trespasser is not injured on the premises.
 S.1(5): An occupier may discharge his duty by waring of the danger, or by taking steps to discourage trespassers. A
simple warning like “Danger – Rotten Footbridge”. The notice does not have to inform how to use the premises
safely.
 S.1(8): No duty is owed with respect to damage to property Tutton v Walter (1986)

Tomlinson v Congleton BC (2004)

 C dived into a pool that was fenced off by the council with warning signs.
 Held that the risk of injury had not arisen from the state of premises or things done or omitted to be done s.1(1)
 Injury occurred due to claimant’s own misjudgement of diving into shallow waters.
 Social Cost involved in denying responsible visitors access to recreational facilities is taken into account.
 Lord Hoffman: “A duty to protect against obvious risks or self inflicted harm exists only in cases in which there is
no genuine and informed choice…”

Simonds v Isle of Wight Council (2003)

 A five year old fell from swing and broke his arm. It was argued that the school was under a duty to immobilise
the swings or cordon off the area to discourage children.
 School was not liable. Social cost argument from Tomlinson.

EXISTENCE OF DUTY OR CARE MAY VARY WITH TIME

Donoghue v Folkestone Properties (2003)
 C dived into the water in the early hours of mid-winter day and hit his head on an underwater obstruction
 Though D knew that trespassers dived off the slipway, but C’s injury occurred in mid winter when the waters
would normally be frozen.
 D was not liable.

Interpretation of the words ‘has reasonable grounds to believe’ in s.1(3)

 A duty would only arise when the occupier has actual knowledge of the relevant facts or had known facts which
gave reasonable grounds for his belief.

British Railway Board v Herrington (1972)

  A six year old climbed through a gap in a fence beside an electrified railway line and got injured. D knew that
children had been in the vicinity before and had been using the gap, but D did nothing about it.
 House of Lords D liable. D had actual knowledge that the trespassers (children) were in the vicinity of danger.
 Lord Diplock: No duty is owed to trespassers unless occupier had actual knowledge as to the condition of his land
and likely presence of trespassers.
Ratcliffe v McConnell (1999)
 C, a 19 year old, had 4 pints of beer and dived into a shallow pool after climbing over the gate of a college. There
was a warning sign outside the gate. C got injured.
 COA held that D owed no duty under s.1.
 Knowing that the pool was closed for winters and diving into unknown depth, C voluntarily took the risk s.1(6)
 COA endorsed Lord Diplock’s view in Herrington that occupier must be aware of the primary facts before a
liability is imposed on him.

Swain v Natui Ram Puri (1996)

 A child, trespasser, fell off the roof after climbing a barbed wire wall.
 Held that duty would only arise when the occupier had actual knowledge of the relevant facts.

Higgs v WH Foster (2004)

 C, police officer, fell into a pit on D’s land while investigating a theft at night.
 COA: C was held to be a trespasser. Under s.1(3)(b), it was not enough that D’s land had an easy access. There
was nothing to attract. The mere fact the someone might steal D’s coaches is not enough.
 D did not owe a duty of care to C.

Liability is imposed for the “state of the premises”

Tomlinson v Congleton BC (2004)

Keown v Coventry Healthcare NHS Trust (2006)

 A 11 year old got injured while playing on the fire escape.
 Held that the boy had been aware of the danger. The risk arose not from the state of the fire escape but from the
fact that the boy chose to trespass.

Revill v Newbury (1996):

 D fired at two trespassers, injuring one of them.
 Held that although the Act does not regulate “activity duty”, but the nature of duty owed under the act were
virtually identical to the one owed under common law.
 D was held liable. An occupier cannot treat a trespasser as an outlaw and owes a duty to him that the trespasser
does not suffer injury on the premises.
 Damages were reduced on account of contributory negligence.

DEFENCES
Contributory Negligence
 Revill v Newbury (1996)
 White Lion Hotel v James (2021)

Volenti non fit injuria (voluntary assumption of risk)

 S.2(5) OLA 1965
 S.1(6) OLA 1984
 Ratcliffe v Mc Connell (1999)

Exclusion of Liability
Ashdown v Samuel Williams (1957)
 C was a licensee on land belonging to D when she was knocked down and injured by railway trucks which were
being negligently shunted along a railway line
 Notices had been posted that every person was at his own risk and should have no claim for injury against D
 C sued D for compensation for injury under common law (this case was prior to the Occupiers’ Liability Act 1957)
 D argued that his liability had been excluded by the notices, but C argued in defence that she had not read them
properly
 C’s claim failed as D had taken reasonable steps to bring the conditions contained in the notices to C’s attention