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Occupier's liability claims
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Occupiers of a property owe visitors to that property a duty of care. The Occupiers Liability Act 1957 replaces the common law rules concerning that duty of care. At Section 1(2) the Act states that it does not alter the rules of common law as to the persons on whom a duty is so imposed or to whom it is owed.
An occupier is therefore determined by ‘who is in sufficient control’ of the premises (perWheat v E Lacon & Co Ltd  AC 522).
A visitor is someone either invited or licensed at common law (Section 1(2)) and therefore a lawful visitor, rather than a trespasser. Occupiers have a duty of care towards both visitors and their property (Section 1(3)).
At common law, the duty placed on occupiers is to take such care as in all circumstances is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose of which he is invited or permitted by the occupier to be there (Section 2(2)).
Common law does not place a duty on the occupier towards the visitor regarding risks that the visitor willingly accepts as their own (Section 2(5)).
A warning may discharge the occupier’s duty of care if it is sufficient to enable the visitor to be reasonably safe (Section 2(4)). Consider Tomlinson v Congleton Borough Council and Another  EWCA Civ 309,  2 WLR 1120 – in this case, the Claimant was paralysed after diving into a lake, having ignored a warning next to a lake that said ‘no diving’. The House of Lords overturned the decision of the Court of Appeal who had ruled in favour of the Claimant (which upheld that of the court of first instance), noting that it would be unreasonable to impose a duty to protect people from self-inflicted injuries that they sustained when voluntarily taking risks in the face of obvious warnings.
Note however that the duty of care requires occupiers to consider the degree of care and want of care that would be usual for the particular visitor (Section 2(3)). Therefore, if the visitor is a child, the occupier should expect the child to be less careful than an adult.
Where the occupier employs a independent contractor to carry out work to the premises and an injury is sustained by a visitor, the occupier will not be held liable if they can show that they acted reasonably in entrusting the work to an independent contractor and took such steps (if any) as they reasonably should have, in order to satisfy themselves that the contractor was competent and that the work had been properly done (see Section 2(4)(b)). So the duty of care under the 1957 Act can be delegated to an independent contractor. Contrast this with the personal nature of the common law duty of care that is owed to an employee and cannot be delegated (Wilsons & Clyde Coal v English  AC 57).
Section 2(1) of the Occupiers’ Liability Act 1957 allows occupiers to extend, restrict, modify or exclude their duty to any visitor. Any such changes have to be read subject to Section 2 of the Unfair Contract Terms Act 1977, which state at Section 2 under the head ‘Negligence Liability’:
(1) A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.
(2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.
(3) Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.
This is why you will often see in contracts clauses attempting to limit liability which will be qualified by a statement such as ‘However, nothing in these terms and conditions shall exclude or limit our liability for death or personal injury caused by our negligence, or for any other liability which cannot be excluded or limited under applicable law’.
Somebody who comes onto the premises but is not a ‘visitor’ (because for example, they go to the part of the premises where they have been told by the occupier not to go, or they outstay the permission) becomes a trespasser and falls outside the sphere of application of the Occupiers Liability Act 1957. Trespassers are afforded protection under the Occupiers’ Liability Act 1984, but this offers lower standards of protection. Liability is for death or personal injury, not for damage to property.
Under the Act, the occupier owes a duty where they are aware of a danger, or have reasonable grounds to believe it exists, knows or has reasonable grounds to believe that the trespasser is near or may come to be near the danger and where the risk is one which an occupier may reasonably be expected to protect visitors from.
If the duty of care is breached and the trespasser suffers injury, the 1984 Act only allows an injured trespasser to claim for death or personal injury, rather than damage to any personal property. The duty of care does not apply to those using a highway, thereby preserving the common law rule established in Greenhalgh v British Railways Board  2 QB 286.
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