Occupiers’ Liability

Cases under the Occupiers Liability Acts (OLA) are not common but the provisions are occasionally used in claims brought by tenants. There are two acts that affect landlords and occupiers.

The Occupiers Liability Act was introduced in 1957 to regulate the duty which an occupier of premises owes to his lawful visitors in respect of dangers due to the state or condition of premises, or to things done or omitted to be done on them. A further Occupiers Liability Act8 was introduced in 1984 which extended the duties to unauthorised visitors - such as young children who might be harmed by potential hazards on land (e.g. railways).

The Acts also contain provisions that will apply in specific types of letting situations where the landlord retains control of common areas (e.g. blocks of flats). They operate by attaching obligations to the 'occupier' of a property, and impose a duty of care to see that visitors (to the property) are reasonably safe.

Who is the occupier?

The duties under the Occupiers Liability Acts attach to the occupier of the land. 'Occupier' for the purposes of the Act means the person who occupies or has control of the premises.

Tenants in exclusive possession
A tenant who has exclusive possession of the demised premises is an occupier within the meaning of OLA 1957. The landlord, having given up exclusive possession, cannot therefore be under a duty of care to either the tenant or his visitors. Accordingly, hazards to the tenant's visitors remain firmly in the domain of the tenant in these situations.
So, as the law now stands, the landlord can remain relatively immune from potential hazards such as a swimming pool in the garden of a private house (more on this later). 'Visitor' is a broad term which covers any person to whom the occupier has given implied or express permission to enter. The common duty of care is:
'a duty of care to take such care as in all the circumstances of the case is reasonable, to see that the visitor will be reasonably safe for the purposes for which he is invited or permitted by the occupier to be there.'

Warning notices

The Act does not introduce any obligation to erect warning notices in the vicinity of a hazard. The law recognises a principle of proportionality whereby the need to provide warnings of hazards would depend on the circumstances.
Public bodies and business will often be expected to erect warning signs to alert visitors to hazards on their premises (e.g. to draw attention to deep water areas in a public swimming pool) because they provide public access to their land. Private residential occupiers, on the other hand, will only have visitors in more limited and restricted circumstances and are not generally expected to erect equivalent warning signs.

Even where public access is allowed, the courts have sensibly ruled that visitors must take some responsibility for their own safety. A man tragically died whilst swimming in the pond of a National Trust property. The court held that, in the circumstances, there was no obligation on the National Trust to erect warning signs - the risks would have been obvious to any competent swimmer. The court sensibly recognised that, if their ruling had gone against the landowners, warning notices would have to be put up beside every pond, reservoir, river bank and stretch of coastline.

Common parts
Complication and liability arises under the Occupiers Liability Acts when the landlord retains control of common parts of the building - for example the entrance hall, staircases, lifts, roof etc. in a block of flats or similar shared living arrangements. The landlord then will be an 'occupier' in the terms of the Act, and will be under the common duty of care set out in the Act. Landlords, in these situations, have incurred liability for injury resulting from broken steps or missing handrails. Under OLA, the tenant and his family or friends become 'visitors' to these common parts of the building and the landlord will owe them a duty of care under the Act.

In a recent case, a claimant was visiting friends when she fell over the wall leading up to the front door of the premises, and down an eight foot drop to a basement area. There was no adequate guard rail to protect someone falling over the wall in this entrance area. The lady suffered paraplegia and successfully claimed against the landlord of the friends that she had been visiting.

Trespassers and the 1984 Act
The main purpose of the Occupiers Liability Act 1984 was to extend similar protection provided under OLA 1957 to persons other than lawful visitors i.e. persons entering land without the consent of the owner. The occupier will owe a duty if he is aware, or has reasonable grounds to know, of a danger on the premises and that a person may be in the vicinity of the danger and the risk is a real one against which he may reasonably be expected to offer some protection.
The occupier is only expected to take reasonable precautions where a hazard is foreseeable. Once again, the duty of care is proportionate to the circumstances. In Siddorn v Patel, a landlord was held to be 
not liable where a tenant had been badly injured following a fall from a roof onto which the tenant had entered without permission.

The facts of this case were that Miss Siddorn had the tenancy of a first floor flat. The side of the flat abutted a garage which had a flat roof and two skylights covered by corrugated perspex. In the course of an evening party, the tenant and five or so other individuals had climbed out of the flat window and onto the roof of the garage - a roof which formed no part of the tenancy. Later in the evening, whilst dancing on the roof, the tenant stepped on the perspex skylight and fell through it sustaining injury. Miss Siddorn sought damages for personal injury from the defendant landlord, Mr Patel. The tenant contended that the landlord had been negligent or in breach of their duty of care under the Occupiers Liability Act 1984 in that they had not ensured that the skylight had a safe or suitable cover, and had failed to warn her and the other tenants of the unsafe condition or nature of the roof, or warn them not to go out there.

The landlord contended that he was not liable as the premises did not come within section 1 of the Occupiers Liability Act because the danger to Miss Siddorn had arisen from an activity rather than the condition of the roof. Neither Siddorn or any other tenant had ever received permission to go on to the roof for any purpose.
The Court held that in the circumstances, the premises did not give rise to any proper danger within the meaning of the Act and therefore the landlord was not liable. There was no evidence that the skylight's perspex cover was in a state of disrepair, that the corrugated perspex did not constitute a suitable cover, or accordingly, that the landlord had been negligent. The tenant's case was unsuccessful.