Occupiers liability act 1957 Occupiers liability act 1957

deals with lawful visitors Deals with trespassers

 Occupiers liability owes special duty of care.
to whom??
Trespassers and lawful visitor.

The first question as us law students we have to ask is; is the

claimant a trespasser or a lawful visitor?

The tortious liability equation:

Duty of care + breach of duty + Damages = Tortious liability
 Lawful visitors are those who have permission to enter. That
permission can be granted expressly

Or impliedly. For e.g. A caf during working hours it is implied

that you can walk in when the place is open.
 Repeated visits

Lawrey V walker
The Claimant was injured by a horse when using a short cut across
the defendants field. The land had been habitually used as a
short cut by members of the public for many years and the
defendant had taken no steps to prevent people coming on to the
land. The defendant was aware that the horse was dangerous.
Held:
The defendant was liable. Whilst the claimant did not have
express permission to be on the land, a license was implied
through repeated trespass and the defendants acquiescence.
 Doctrine of allurement
This applies to children. A child will not be a trespasser if they are
on land to investigate something dangerous and attractive.

Cooke V midland western great railways (1909)

Joley V London Borough council (2000)

Claimant brought action under occupiers liability act 1984
Trail judge = found for claimant
Court of appeal = reverse the decision
House of lord = claiments appeal was allowed
 Entry in order to communicate
Implied consent to walk up the path to communicate with the
occupants.
Robsen V Hallet: police walking up to front door to ask question
Police officers have implied permission to enter your house.

Statutory power to enter

Police Postman
Fireman
Meter readers have statutory power to enter.
 A person who enters without permission and whose presence is
unknown to occupier or if he objects to it.
Objection can be by a sign or by verbal warning.
But the moment you say that a certain person cannot enter then
you have taken permission away and there entrance becomes a
trespass.
 Limit as to area
Most visitor have permission to wander at will. But should not go to
places not allowed. Not a trespasser of you in area you are
suppose to be in.
Pearson V Coleman Brothers:
Held: able to claim as a lawful visitor. Benefit of the doubt went
to the claiment.
 Limit as to time
Visitor stay longer than they should becomes trespasser.
For e.g. after closing time of museum.

Limit as to purpose
If you are invited to a place for a particular purpose and the if
you undertake a different activity then you become a trespasser.
when you invite a person to a house to use a staircase you do not
invite to slide down the banisters. You invite to use the staircase in
the ordinary way in which it is used LJ Scrutton: the Calgerth
1927
 Occupier's Liability Act 1957

Occupier owes a duty of care to all of his lawful visitors.

According to s2(1) of this act the occupier should take such care
to make sure that the visitors will be safe in using the premises
for the purpose for which he is invited or permitted.
this act comes with defect as it does not explain what an occupier
is.
Therefore case law is needed.
Case law tells us that occupier is by stating that he is any person
who has the sufficient control over the premises. It could be the
whole premises or part of it. And the owner and tenants also
could be the occupiers.
 Any land or any building on the land. Includes any fixed or
movable structure.
 Same standard as ordinary negligence. This case we will talk
about reasonable occupier. The court looks at:
Wells V cooper- to look at the characteristic of the defendant
Paris V Stepney Borough Council- to look at the special
characteristic of the claiment
Bolton V Stone / Miller V Jackson- to establish the risk
Latimer V AEC- to look at precations
Watt V Hertforshire County council- to look at public utility of
taking risk.
 Duty is to keep visitor safe and not the premises.
Warning sign will state that a certain place is dangerous. It
does not prevent a place from being any dangerous. All it does
is it tells the visitors about the angerous place.

S2(4)(a) occupier may be able to carry out his duty by

providing reasonable warnings.
It could be implied by a sign or it could be expresses. Like
notice of danger.
Woolings V British Celanese
 When the children are involved, the occupier should be cautious
about the fact that children will be less careful than adults. The
children being always curious will not think of the danger and
the outcome of a situation therefore they may do anything
without thinking that their action may cause them harm. For e.g.
the poisonous berries which looked like black berries will be
attractive to the little kids. Here the common duty of care owe
by the occupier to the children have to be more than of the
adults. Glasgow Corp V Taylor
 In professional visitors case, the occupier will expect the person to
know what he is doing and will guard against the risks. As the visitor
is skilled in the profession he is in, the occupier will expect him to be
careful of the danger he is facing while doing his work. However this
section doesnt cover the risk involved outside the visitors work. Eden
V West and Co (2003) P.I.Q.R Q2
The occupier has to alert the visitor of the risk involved outside the
visitors professional knowledge. However, usually the occupier will not
be received well if he warns the skilled visitors of the danger and risk
involved in their professional areas. Lord Denning stated that when
the occupier calls in specialist to deal with certain thin he doesnt have
to watch over the skilled worker as he will expect the worker to know
what he is doing. Roles V Nathan (1963) 1 W.L.R 1117
Defences
 An occupier is not liable if visitor injured by something
dangerous created by faulty workmanship by outside
contractors.

3 steps taken by occupier:

It is reasonable to bring in a contractor
Reasonable steps to ensure contractor competent
Occupier takes reasonable steps to ensure work done properly
 When considering a case a court must consider the care and
lack of care looked for in a visitor. If the claimant contributed in
anyway for the damages then an award for contributory
negligence will be made. Same arises for consent.
 Occupier may restrict or exclude altogether the duty of care
owed to visitors. the occupier can exclude the liability if he had
displayed a notice on the premises about the danger. However
this will be different from warnings.

This has to be clearly worded and clearly visible.

Ashdown V Samuel Williams and Sons ltd

Occupiers liability Act 1984
 background
This is excluded in the occupiers liability Act 1957

British railway road V Harrington

occupiers liability Act 1984 was established to give responsibility

to occupier for the damages occurred to trespassers.
 Two hurdles to overcome:
1. claim arises due to dangerous premises and not dangerous
activities of the claiment

Keown V Coventy NHS Trust

2. provision of OLA 1984 s1(3) must apply
Occupier owes a duty in respect of danger on his premises if:
He is aware of the danger or has reasonable ground to believe
that it exists,
He knows or has reasonable grounds to believe that someone
else is in the vicinity of the danger or may come in to the vicinity
of the danger,
The danger is one in which in all the circumstances he may
reasonably be expected to offer some protection against.
Claimant must show all three provisions exist.

Donoghue V Folkestone properties

 S1(4) duty owed by occupier to trespasser is take such care as
is reasonable in all the circumstances to see that the trespasser
does not suffer injury or harm on the premises because of the
danger.

S1(2) term occupier, trespasser and premises have the same

meaning as the 1957 act.
 Court take a reasonable and brisk approach when considering
if an occupier has done enough. They look at some factors:
likelihood of trespass
Seriousness of injury
Cost and practicality of precautions
Likely age of trespasser
Common sense
An occupier should not guard against an irresponsible minority
Platt V Liverpool City Council (1997)
 As OLA 1957, the defendant may discharge duty by warning
signs.

. In Tomlinson v borough, there were notice about the lake but the claimant entered the
lake and got injured while trying to dive on shallow water. The house of lord said that
the injury is not due to the state of the premises but because of claimants own
misjudgment.
 Contributory negligence
OLA 84 makes no specific mention of contributory negligence.
However the judges accepts it as a defense. When they do it
works same as ordinary negligence.

Consent
S1(6) D owes no duty in respect of risks willingly accepted by
trespasser.
Ratcliff V McConnell (1999)
 Excluding liability:
Law is not clear about this defense.

There is a difference between waning signs and exclusion liability

signs.

Law is not clear about enter at your own risk sign excludes your
liability. There is no case law and has not being dealt with either
in OLA 84 or in unfair contract terms act 1977 which applies to
trespassers.
 Successful claimants can claim for death or injury only

S1(8) OLA 84 excludes claims for loss of property.

The court does not make it easy for people to bring claim against
occupier if they themselves the claimant is a trespasser.
 This Chapter refers to the liabilities of an occupier towards the
visitors and how theses liabilities were decided before the
Occupiers liability Act 1957. The changes brought with this act
made it easy to make the occupiers liable for the negligence
happened to visitors in their premises. Moreover, with Occupiers
liability Act 1984, those who are not visitors also claim under
the act.
Malicious prosecution
Unjustly subjecting someone to prosecution process.

That can be done by swearing out warrant, testifying, causing to

be arrested, or to be prosecuted under criminal law

The Victim can sue against D in tort and recover the damages they
suffered by wrongfully claiming that they undertook some criminal
activities.
 Holt CJ defined damages by stating that it is damage to the
mans fame or reputation, person or property. If a person is
wrongly prosecuted his reputation will damaged. To cause harm
to person could be either by threat of imprisonment or the
actual imprisonment. Savile V Roberts (1698)
Certain conditions should be fulfilled in order to prove the tort
of malicious prosecution. For e.g. X maliciously and without a
good reason prosecuted Y for Burglary. Y was acquitted by the
court. Now Y want to sue X for malicious prosecution. In this suit
Y must prove that he was prosecuted by X without any
reasonable and probable cause. And there was malice by X
involved. Also that the proceeding was terminated in favor of Y.
also that Y suffered damages in result of the prosecution.
In this situation, the plaintiff must be the one who was accused
and the defendant should be the person who led the lawful
proceeding. The plaintiff must prove that the defendant
established the prosecution against him. Instigating the
prosecution will be different from giving honest information
about a certain event. However the knowledge is false about the
other person and the prosecution is started by police without
further investigation then he will be prosecuted.
Kapoor Chand V Jagdish Chand
Reasonable and probable cause is said when the person who
accused the other person did it with an honest belief that the
accused was guilty based on a full persuasion which was based
on reasonable ground. This was laid down in Hicks V Faulkner.
 In a case of malicious prosecution, when someone is having
malignant purpose towards another it clearly means that there
is bitter motive to file a lawful proceeding. It is the duty of the
plaintiff to prove the innocence or him/herself for the malicious
blames by the defendant. Wrong intention is sufficient but not
necessarily a condition of malice. Lack of honest belief is an
evidence of malice. General rule is that an act lawful in itself
does not merely become unlawful because of the bad motives
of the actor. House of Lords suggested that malicious
prosecution was not an exception to this rule. The settled rule is
that the plaintiff must prove the malicious prosecution in the first
instance. The burden of proof lies upon the plaintiff.
Ellen v Flood
 A person can only litigate against the other person for malicious
prosecution if only he is faultless or by the dismissal of
objection. The plaintiff can only sue the defendant for malicious
prosecution only when he is guiltless. The prosecution ends in
plaintiffs favor when he shows that he was acquitted by the
court either on merit (Berry V Btc) or on technical grounds
(Wicks V Fentham) or his conviction was squashed or set aside
by the appellant court. Herniman V Smith
 In a situation of malicious prosecution, the plaintiff must prove
damages. The damage could be either to the property or the
plaintiffs reputation or to him or herself.
In sova Rani Dutta V Debabrata Dutta it was held that the
defendant was liable for malicious prosecution and the
humiliation suffered by the plaintiff due to handcuffing.
 In this chapter we know malicious prosecution exists when the
plaintiff can prove that false accusation or prosecution without
any rational and credible cause, but the defendant had malice
intention towards the plaintiff. The most important fact is the
existence of malice.
Malice may be proved by previously stained relations,
unreasonable and improper conduct like advertising the charge
or getting up false evidence.