What Liability do I have towards other people entering my property?
What is meant by Occupiers Liability?
The law of occupiers’ liability is a common law tort meaning it is actioned in a civil court and deals with issues between individual parties.
Under occupiers liability the person who occupies the land can be held liable when injury or some kind of harm has occurred to another person on that land.
It is governed by the Occupiers Liability Act 1957 and the Occupiers Liability Act 1984.
Occupiers Liability Act 1957
What is meant by Occupier?
Under the Occupiers Liability Act 1957 the occupier of the property means that person who is in control of the land, premises, building, warehouse, office etc.
When establishing whether someone is in control of the premises the following factors can be taken into account:
Whether that person is the owner of the property / premises
Whether that person had exclusive possession of the property / premises
Whether they had the immediate right to enter and to use the property / premise
Property rights in the property / premises do not have to exist. An individual, for example the manager, can be held to be an occupier under the control test. Consequently, this means that under the 1957 Act more than one person can be held to be the occupier of a certain premises.
Does the occupier have to be a person?
The term occupier under the 1957 Act has been held to cover local authorities, companies, individuals and partnerships.
Section 1 of the Occupiers Liability Act 1957 defines premises to cover any fixed or movable structure. This can include any vessel, vehicle or aircraft. In the cases following the enactment of the legislation such things as chairs, ladders, scaffolding and lifts have been construed to be premises. Obviously such things as buildings, factories, houses and land are included within the definition.
Someone who enters the premises is someone who has been invited onto the premises by the occupier. This is also extended under the 1957 Act to include those individuals who enter the premises in the exercise of a right conferred by law. This covers such individuals as policemen and firemen as they are termed lawful visitors under the 1957 Act.
Common Duty of Care
Section 2 of the Occupiers Liability Act 1957 states that the common duty of care in relation to occupiers is the duty 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 reason which he or she is invited or permitted to be there.
The fact that it is a common law duty of care means that it is applied to all lawful visitors. Please note that the duty is to make the visitor safe and not the premises safe. This is a very important distinction.
Does the Common Duty of Care depend on the person visiting the premises?
Section 2 of the 1957 Act specifically states that an occupier must be prepared for the fact that children may be less careful than adults. This means that there should be a higher duty of care placed on the occupier when children enter the premises.
Section 2 of the 1957 Act specifically states that when a person is in the exercise of his trade that person will not only appreciate the special risks associated with his trade but will also guard against them. This means that the occupier will be free to leave the tradesman to do just that and will not have a higher duty of care placed upon them.
Work done by Independent Contractors
Section 2 of the 1957 Act specifically states that where damage is caused to a visitor by a danger due to faulty construction, maintenance or repair by an independent contractor the occupier will not be subject to a higher duty of care if the occupier acted reasonably when he entrusted the work to the independent contractor. In this situation all the occupier can be reasonably expected to do is to ensure the work has been executed properly.
If damage has been caused to the visitor by something which the occupier had previously warned him about then the occupier will not be subject to a greater duty of care if it is found that the warning was reasonable enough to keep that person safe.
The following are defences that can be used in an action for occupiers liability:
Consent of the visitor. If a risk is willingly accepted by the visitor then the occupier will not be liable for any damage suffered. Signs such as “enter at your own risk” are good examples of this.
Contributory Negligence. The individual claiming occupiers liability for an injury sustained while on the premises may well have contributed himself to the injury.
Exclusion of Liability. The occupier can exclude their liability by an agreement. In the case of business however, this is likely to fall foul of the Unfair Contract Terms Act 1977 in the case of business but not in the case of recreational premises.
What happens if the Visitor is not a Lawful Visitor?
Occupiers Liability Act 1984
The 1984 Act deals with individuals other than visitors and is taken to mean trespassers. A duty of care has to be established in this case and occurs when the following three factors are met:
That the occupier is aware of the danger.
That the occupier knows that the other person will be near the danger or that they have reasonable grounds to believe that it is the case
That the occupier ought reasonably think about providing some protection to the other person.
Under the 1984 Act no duty will exist when a person willingly accepts a risk when they trespass on a certain type of land.