The Occupiers Liability Act 1957 states that the occupier of a premises in England and Wales may be held responsible where a visitor to that premises is injured or their property is damaged.
The Occupiers Liability Act 1984 was created to clarify the position of occupiers’ liability with regard to trespassers by separating out lawful visitors and unlawful visitors and stating the corresponding conditions of liability.
Where an incident does occur on the premises, the injured party may be able to bring a claim for compensation. To be successful, the claimant will need to show the occupier failed to take reasonable care or had been negligent in providing safe premises for visitors.
Definitions under the Occupiers Liability Act 1957
This is the person who is in control of the premises. This could be a company or organisation, an individual or a local authority.
The occupier could be the owner of the premises or the manager of a premises, or both of these could bear occupational responsibility, leading to a joint liability.
The occupier does not have to physically occupy the premises, for instance, where the occupier is a landlord of a house that he rents out to others. He does not live in the house, but he has ultimate control over the house and therefore carries a duty of care to the tenants and occupational liability.
The premises is the area controlled by the occupier. This could be:
- open spaces of land
- fixed structures, such as an office block or factory
- moveable structures, such as staging or scaffolding, or portable caravans
- some transportation vehicles such as trains and ships
A visitor is an individual who is legally allowed to enter the premises. This could be by agreement with the occupier or where the individual has the right to entry, such as travelling through a legally allowed right of way.
A visitor may have:
- express permission to enter the premises, i.e. the occupier has given them permission to be on the premises
- implied permission, for instance, where a customer walks into a supermarket
- the right to enter, such as a member of the police force
A visitor could be an employee, a passenger or a business contact visiting the premises for a meeting.
A trespasser is an individual who gains entry to the premises unlawfully. Even though a trespasser enters the premises without permission, the occupier still carries a duty of care in accordance with the Occupiers Liability Act 1984. This is the same duty of care required to be provided for lawful visitors.
Duties under the Occupiers Liability Act 1957
Under the Occupiers Liability Act 1957, the occupier carries a duty of care towards anyone who visits their premises. The occupier must take reasonable care to make sure that the premises are safe for the visitor’s purpose and that all reasonable steps have been taken to make visitors aware of required conduct in the premises and any possible hazards present.
Where the premises is a structure, of any kind, or is land with structures sited on it, the occupier must take all reasonable care to maintain that structure to a safe standard.
The occupier must also ensure that activities carried out on the premises do not create a hazardous situation for visitors.
Finally, the occupier may be responsible for the conduct of third parties who are present on the premises and are therefore advised to check the safety of these third parties and that these third parties are not allowed to create a hazardous situation by their actions.
Defences that may be used by an occupier against a claim
There are a number of defences that an occupier may use when faced with an occupiers liability claim.
Firstly, where a visitor has acted in a way that is counter to the reasons for their visit, such as accessing areas of the premises that they do not have permission to enter and which are possibly hazardous, the occupier may not be held liable for any injuries they suffer. In this situation, where a visitor has caused or contributed to their injuries through their own actions, the occupier may use the defence of contributory negligence.
In accordance with section 2(5) of the Occupiers Liability Act 1957, where a visitor has been informed of the risks of entering a premises, and has acknowledged and accepted these risks, the occupier may use the defence of consent to avoid any liability for that visitor’s injuries.
Finally, where an occupier has warned visitors of any potential risks or dangers of entering the premises, they may avoid liability if it can be proved that their warnings were reasonable, clearly available or visible, and sufficient for the level of danger.
Specialist or trade visitors
In accordance with Section 2(3)(b) of the Occupiers Liability Act 1957, where a visitor enters the premises to carry out a service, such as an electrician, the occupier may act under the assumption that that person will guard against any risks specific to their trade or service.
If they are then injured as a result of not taking due care when carrying out their trade or service, the occupier may reject responsibility for their injuries.
Where children may enter the premises, for instance, where the premises is a school, all precautions should be taken to ensure that hazards are removed.
An occupier must approach such safeguarding with the assumption that children may act in a less careful way than an adult would in the same situation.
Liability of others
A third party acting on a premises may be held liable for accidents that happen on site along with or instead of an occupier.
For instance, where a builder carries out poor work that results in injuries to a visitor to the premises, the occupier could claim that the builder was wholly responsible as long as they can demonstrate that they took reasonable care to check that the builder was competent before they began work and that they provided the builder with a suitable environment to work in.
In certain situations, it may be necessary that the occupier check that a third party has liability insurance before instructing them.
Occupiers liability insurance
Although all occupiers are required to ensure a safe premises for their visitors in accordance with he Occupiers Liability Act 1957, it may be wise to also take out an occupiers liability insurance policy to protect against compensation claims.
How can occupiers protect themselves against claims?
In addition to taking out occupiers liability insurance, an occupier can further protect themselves against claims by:
- maintaining a safe premises and regularly re-assessing the safety of the premises
- providing warnings of any potential risks
- communicating these risks to visitors and seeking their acknowledgement and acceptance of these risks
Why take legal advice?
Where you face an occupiers liability claim, take specialist legal advice to ensure you have the best chance possible of a successful outcome.