Occupiers' Liability Act 1984

Occupiers' Liability Act 1984 (1984 c 3)

Related legal guidance

Assumption of risk in sports and leisure claims

Assumption of risk in sports and leisure claimsMany sports and leisure activities carry an inherent risk of injury. Participating in an extreme sport or leisure activity can make it alluring and exciting but even common and less dangerous activities and sports such as cycling, swimming, playing football carry some risk of injury.The assumption of risk doctrine provides that a participant provides their consent to take part in an activity once they are fully aware of the risks involved. They voluntarily assume and acknowledge the risks along with the possibility of harm.The basic principles for pursuing a personal injury claim apply equally to sports and leisure accident claims. The defendant must:•owe the claimant a duty of care•the defendant must be in breach of that duty, and•the claimant must suffer a loss or injury which is causally connected with the breachOften in sports and leisure accident claims contributory negligence can be a significant issue.The Compensation Act 2006 (CA 2006) does not alter the standard of care or the circumstances in which a duty to take care would be owed. CA 2006, s 1 is intended to raise awareness and ensure that people and organisations are not prevented from undertaking normal or desirable activities because of fear of litigation and excessively risk averse behaviour.Diving accidentsIn Tomlinson, the claimant was injured when he dived into a

Claims on behalf of children—an introduction

Practice notes

Claims on behalf of children—an introductionA child is any person under the age of 18.There are important procedural issues that practitioners must consider in claims involving children. CPR 21 contain the main provisions.If a child is involved in a claim they will usually be the claimant bringing the claim but claims may occasionally be brought against children.Litigation friendsRequirement for a litigation friendIn civil proceedings a child must have a litigation friend to conduct the proceedings on their behalf (unless the court directs otherwise).The only steps that can be taken (without the court’s permission) before the child has a litigation friend are:•issuing and serving a claim form•applying for the appointment of a litigation friendUnless the court orders otherwise, a person may not, without the permission of the court, make an application against a child before proceedings have started, or take any step in proceedings except issuing and serving a claim form or applying for the appointment of a litigation friend, until a litigation friend has been appointed. This includes any application for default judgment—see Practice Notes: Obtaining default judgment—procedure—Application for default judgment—when is it required? and Default judgment—the judgment itself—What can be ordered where default judgment is entered upon an application?Any step taken before a child has a litigation friend has no effect unless the court orders otherwise.Who may be a litigation friend?A person

Defences to Tort Claims

Practice notes

Defences to Tort ClaimsDefending a tort claim—general considerationsIn reality, many claims are ‘defended’ on the basis that the defendant either did not owe the claimant a duty, or there was no breach of duty or there was a break in the chain of causation.In each of those cases, the claimant has failed to establish that the defendant is prima facie liable.This Practice Note considers the defences, which may exculpate a defendant from liability where liability has prima facie been established.For guidance on limitation defences in tort claims, see the Practice Notes:•Limitation—tort claims•Limitation—professional negligence claims—Date of accrual in tort•Limitation—Latent damageContributory negligence as a defence to a claim in tortSection 1(1) of the Law Reform (Contributory Negligence) Act 1945 (LR(CN)A 1945) provides that where a claimant suffers damage partly as result of their own fault and partly as a result of the fault of the defendant, the court shall reduce the claimant’s damages to such an extent as it thinks just and equitable. Where the fault of both the claimant and the defendant contributed to the damage, the court must apportion the damage between the parties.Although most often invoked in negligence claims, contributory negligence is also available as a defence in claims for:•breach of statutory duty (Caswell v Powell Duffryn)•nuisance on a highway (Trevitt v Lee). It has been assumed to be

Did the claimant consent to the risk of injury?

Practice notes

Did the claimant consent to the risk of injury?The essence of a defence of volenti non fit injuria (‘to a willing person, no injury is done’) is that the claimant understands the danger of the situation and willingly consents to the risk of injury. In such circumstances, should injury occur, the claimant has no reason for complaint.The defence is often shortened to volenti.If established, volenti is a complete defence. The justification is that it is not possible to apportion consent and say that a claimant agreed to run certain risks but not others. As such, the defence will only be successful in clear cases.The volenti defence will rarely be available in claims for breach of statutory duty.Requirements for bringing the defenceThree factors must be present in order to run the defence:•capacity•knowledge and willingness•agreement (express or implied)CapacityThe claimant must have the capacity to give their consent in the relevant way. Children and those suffering from mental illnesses may be found to lack the appropriate capacity to consent to the risk of injury.Knowledge and willingnessThe courts have held that simple knowledge of the risk is not equivalent to acceptance of it. The defendant must prove that the claimant:•had full knowledge of the nature and extent of the risk•gave their consent freely: consent is cancelled by coercion, which includes economic coercion, eg the

Does a commercial landlord have any responsibility to a commercial tenant to ensure that the electric

Q&As

Does a commercial landlord have any responsibility to a commercial tenant to ensure that the electric systems at the premises are safe at the point of demise?Unlike lettings of residential property (where the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020, SI 2020/312 apply), there is no bespoke statutory regulation that imposes specific duties in relation to electrical safety on the landlord of a commercial property when letting it to a tenant. Although we are aware of some online commentary that suggests otherwise (some of it with reference to specific provisions of the Landlord and Tenant Act 1985), we have been unable to verify its accuracy.Generally speaking, the responsibility for maintenance and repair will depend on the terms of the lease and, most importantly, the definition of the demised premises.As an example, if the lease is part only of the landlord’s property, then the demise will usually include only the conduits/service media (which would include electrical systems/wiring) within and exclusively serving the demised premises, and which are owned by the landlord and exclude any conduits/service media within the demised premises, but which do not serve it exclusively, or which are not owned by the landlord. Then the landlord’s retained property will often include the conduits/service media within it and outside but exclusively serving it (but excluding any that are not owned by

Easements—obligations to repair and maintain

Practice notes

Easements—obligations to repair and maintainThis Practice Note looks at where the responsibility lies for repairing and maintaining land which is subject to easements and who is responsible for the cost of its upkeep particularly where there is no express agreement allocating responsibility for carrying out repairs and/or paying for the costs of repair and maintenance.Is there an obligation to repair?An easement is a right to do something on another’s land or to prevent something being done; it is not an obligation to do something.In the Scottish case of Moncrieff v Jamieson, Lord Scott summed it up: ‘the grant of a right that required some positive action to be undertaken by the owner of the servient land in order to enable the right to be enjoyed by the grantee, could not be an easement’.In practice, however, easements frequently require some action to be taken; for example, a road may need to be repaired or a drain may need to be cleared.Where the easement has been created by express grant, the original grantor and grantee may have entered into an agreement about the ongoing maintenance of the easement and the payment of any associated costs—although this approach is not without its difficulties; see What if there is an express agreement to repair? below.If the easement has been created by implied grant or been acquired by long user,

If a local resident has placed plastic/metal spikes on top of his own fence (which adjoins a publicly

Q&As

If a local resident has placed plastic/metal spikes on top of his own fence (which adjoins a publicly maintained pavement) and is being deemed as a nuisance—would this be covered under section 164 of the Highways Act 1980? If not, would the Council need to seek the resident to remove the spikes under the Occupiers Liability Acts?Section 164 of the Highways Act 1980 (HiA 1980) provides that where on land adjoining a highway there is a fence made with barbed wire, or having barbed wire in or on it, and the wire is a nuisance to the highway, the highway authority may by notice served on the occupier of the land require him to abate the nuisance within a time period of between one and six months from the date of the notice. 'Barbed wire' is defined in HiA 1980, s 164(1)(2) as being wire with spikes or jagged projections; and barbed wire is to be deemed to be a nuisance to a highway if it is likely to be injurious to persons or animals lawfully using the highway.The first question is whether the plastic or metal spike fall within the definition of barbed wire. If the spikes are self-standing (ie without a joining wire) they are not likely to fall within the definition of barbed wire set out in the section. The second question

Occupiers’ liability claims—lawful visitors

Practice notes

Occupiers’ liability claims—lawful visitorsBackgroundThe Occupiers’ Liability Act 1957 (OLA 1957) was enacted to provide for a ‘common duty of care’ owed by occupiers of premises. The duty was ‘common’ in that it was owed to various categories of lawful or authorised visitors such as invitees, licensees and those whose right to be on the premises arose from a contract.OLA 1957 was introduced to replace the rules of the common law to regulate the duty owed by an occupier of premises to their visitors.The common duty of care is not owed to trespassers who may have rights arising from the Occupiers’ Liability Act 1984 (OLA 1984). For further guidance on the duty owed by an occupier to unauthorised visitors, see Practice Note: Unauthorised visitors—the duty of care.The duty of careAn occupier of premises is under a duty to their lawful visitors to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe when using the premises for the purposes for which they are invited or permitted by the occupier to be there.It is worth noting that the level of care that the occupier should have exercised is variable depending on the nature of the claimant eg whether the visitor was a child or an adult or a trades person who possessed, or professed to

PI & Clinical Negligence horizon scanner—March 2022 [Archived]

Practice notes

PI & Clinical Negligence horizon scanner—March 2022 [Archived]ARCHIVED: This Practice Note has been archived and is not maintained.This Practice Note is a summary of the key legal developments of relevance to personal injury and clinical negligence practitioners as of 23 March 2022. For the most recent horizon scanner, reference should be made to PI and Clinical Negligence horizon scanning and key cases—overview.CPR updatesSmall claims limit for non-road traffic accident personal injury claims rising from £1,000 to £1,500The Civil Procedure (Amendment) Rules 2022 is amending the small claims limit for non-road traffic accident personal injury claims from £1,000 to £1,500. It comes into force on 6 April 2022.See: LNB News 04/02/2022 42.CPR changes and 140th practice direction updateUpcoming Civil Procedure Rules (CPR) changes, provided for by the Civil Procedure (Amendment) Rules 2022, SI 2022/101 will come into force on 6 April 2022. The rules will amend CPR 2 (definitions), CPR 10 (acknowledgment of service), CPR 12 (default judgments), CPR 26 (small claims track limit), CPR 39 (anonymisation), CPR 47 (authorised costs officers) and CPR 65 (anti-social behaviour). The MoJ has also signed the 140th update for practice direction amendments which, among other things, extends CPR PD 51O (the electronic working pilot scheme) for another 12 months, increases the maximum limit for a civil restraint order to three years (CPR PD 3C) and amends to CPR PD

Proving negligence—duty of care and the assumption of risk

Practice notes

Proving negligence—duty of care and the assumption of riskIn the vast majority of cases, practitioners will have very little difficulty in identifying a person (or entity) who owed a duty of care to the claimant and who therefore, on the face of it, can be sued. Where liability is in issue, the argument often relates not to the existence or otherwise of a duty of care, but to whether the defendant has breached its duty of care.See Practice Notes: Duty of care in personal injury claims and Breach of the duty of care in personal injury claims.However, in some cases the practitioner will be required to address the question of whether the identified potential defendant owes a duty of care at all.The purpose of this practice note is to pick out some broad principles from cases decided by the Court of Appeal and the Supreme Court, while echoing the note of caution sounded by Lady Hale in the Supreme Court in the case of Woodland v Essex County Council:'But the words used by judges in explaining why they are deciding as they do are not to be treated as if they were the words of statute, setting the rules in stone and precluding further principled development [of the duty of care] should new situations arise.'The cases in which the appeal courts have grappled with these

Unauthorised visitors—the duty of care

Practice notes

Unauthorised visitors—the duty of careBackgroundThe Occupiers’ Liability Act 1957 (OLA 1957) had been enacted to provide for a common duty of care owed by occupiers of premises. The duty was ‘common’ in that it was owed to various categories of lawful, or authorised, visitors, such as invitees, licensees and those whose right to be on the premises arose from a contract.Under OLA 1957 no duty was owed to unauthorised visitors or trespassers.The passing of the Occupiers’ Liability Act 1984 (OLA 1984) introduced a new duty, owed by occupiers to unauthorised visitors. It should be noted by practitioners that this duty is more limited than that imposed under OLA 1957 in favour of lawful visitors.Who is an occupier?An occupier is anyone that would be deemed an occupier under OLA 1957, see Practice Note: Occupiers’ liability claims—lawful visitors—Who is an occupier?Who is an unauthorised visitor?An unauthorised visitor is anyone who does not have actual or implied permission to be on the premises. See Practice Note: Occupiers’ liability claims—lawful visitors—Who is a visitor?What duty do occupiers owe to unauthorised visitors?When does the duty arise?There is an important distinction between the approach taken to authorised and unauthorised visitors. While the common duty of care will be owed to the authorised visitor, in the case of an unauthorised visitor the claimant practitioner is concerned first to establish that a duty

When giving away alcohol at a promotional event, is it possible to exclude liability for personal injury

Q&As

When giving away alcohol at a promotional event, is it possible to exclude liability for personal injury etc where this is as a result of the individual drinking too much alcohol? Or do the normal rules on excluding liability for death/PI etc not apply in such instances?There are two components to this question: first, what is the effect of a notice excluding liability for death and personal injury; and second, what is the liability of the organiser of a promotional event towards a claimant who has drunk excessive alcohol?The first question is answered by section 2(1) of the Unfair Contract Terms Act 1977 (UCTA 1977), which provides that ‘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.This means that the organiser of the promotional event cannot exclude personal injury liability, or say that any attendee participates entirely at their own risk with regard to health and safety. Any contract term or notice like this is rendered of no effect by UCTA 1977.This being the case, the organiser’s liability will depend on the circumstances in which the claimant came to harm at the event. For example: if the claimant was injured as a consequence of something in the state of the

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