What liability do I have towards other people entering my property?

What is meant by occupiers’ liability?

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.

Occupiers Liability Act 1957

What is meant by occupier?

Under OLA 1957, the occupier of the property means a person 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 – a manager, for example, can be an occupier under the control test;
  • more than one person can be the occupier of a premises.

Does the occupier have to be a person?

The term occupier under OLA 1957 has been held to cover local authorities, companies, individuals and partnerships.

Premises

Section 1 of OLA 1957 defines premises to cover any fixed or movable structure. This can include buildings, factories, houses and land, as well as any vessel, vehicle or aircraft. Chairs, ladders, scaffolding and lifts have all been construed to be premises.

Visitor

A lawful visitor under OLA 1957 is someone who has been invited onto the premises by the occupier, but also includes individuals who enter the premises in the exercise of a right conferred by law (eg, policemen and firemen).

Common duty of care

Under s 2 of OLA 1957, the common duty of care is ‘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 of care can therefore vary according to the circumstances. Situations where the standard of care can vary are specifically highlighted in OLA 1957:

Child visitors (s 2(3)(a))

An occupier must be prepared for the fact that children may be less careful than adults. This means there is a higher duty of care placed on the occupier when children enter the premises.

Workmen (s 2(3)(b))

When a person is in the exercise of his trade at a premises (eg, an electrician), that person will appreciate the special risks associated with his trade and will guard against them. This means 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.

Warning (s 2(4)(a))

If damage has been caused to the visitor by something which the occupier had previously warned him about, 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.

Work done by independent contractors (s 2(4)(b))

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. All the occupier can be reasonably expected to do is to ensure the work has been executed properly.

Defences

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.
  • Contributory negligence. Damages may be reduced under the Law Reform (Contributory Negligence) Act 1945 where the visitor fails to take reasonable care for their own safety.
  • Exclusion of liability. The occupier can exclude their liability by an agreement, although this is likely to fall foul of the Unfair Contract Terms Act 1977 in the case of business.

Trespassers

The Occupiers Liability Act 1984 (OLA 1984) deals with individuals other than visitors and is taken to mean trespassers or even those entering with criminal intent. A duty of care has to be established and occurs when:

  • the occupier is aware of the danger; and
  • the occupier knows the other person will be near the danger or that they have reasonable grounds to believe that it is the case; and
  • the occupier ought to reasonably have thought about providing some protection to the other person.

Under OLA 1984, no duty will exist when a person willingly accepts a risk when they trespass on a certain type of land.