The liability to visitors is covered by the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984.
The 1957 Act deals with lawful visitors and the 1984 Act deals with trespassers.
The occupier means the person in control of the land, building, premises, shop, warehouse, car park etc – in fact, the 1957 Act has even been held to cover ships, hovercraft, scaffolding and quaysides, the scope is quite wide indeed. The ‘occupier’ might be a local authority, a company, an individual or a partnership.
The acknowledged test for ‘occupation’ can be found in the case of Wheat –v- Lacon  AC 552. It was said ...... “Wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person lawfully there ......”
S2 (2) of the Act is quite clear, it states ...... “The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there .....”
Interestingly, the Act acknowledges that “..... an occupier must be prepared for children to be less careful that adults .....” [S2 (3)a].
In Glasgow –v- Taylor  1 AC 44, the corporation council were found liable when a young child ate poisonous berries in a municipal park. Similarly, in Jolley –v- Sutton LBC  3 All ER 409, (an interesting case of ‘allurement’), the House of Lords decided that a boy who was injured when a small boat he had propped up (on council land) fell on him, could claim compensation from the occupiers’ of the land, i.e. the council.
In Dawson –v- Scottish Power Plc [1999-SL1] the court found Scottish Power liable when an eleven year old boy had climbed over the fence surrounding an electricity sub-station, was electrocuted. The boy was found one third contributory negligent. The fence was six feet high, but soil had built up at the base of the fence, making it only four feet high. By the way, the fence was topped with spikes and had warning notices stating ‘Danger of death – Keep out’.
In all these cases, the courts found that it was reasonably foreseeable that a child would become injured due to the occupier’s negligence.
Rather sensibly, the 1957 Act recognises that experts working on the property will “..... appreciate and guard against any special risks .....” S2 (3)b. So, in Roles –V- Nathan  1 WLR 1117, the occupier was not held liable for the death of two chimney sweeps by reason of carbon monoxide and in General Cleaning Contractors –v- Christmas (that was the man’s name by the way)  AC 180 the occupier was not liable when their window closed on Christmas’ hand, causing him to fall. As a window cleaner, he should have taken such precautions to prevent this – he should have been aware of the special risks – after all, he was a window cleaner’! In any event, his employer was liable as they had not provided a safe system of work (that’s another interesting area of tort law).
Generally, warning signs and notices should be specific. It is not enough for an occupier to erect a sign stating ‘BEWARE’ or ‘DANGEROUS’. In Staples –v- West Dorset District Council  93 LGR 536, the Court of Appeal found for the council. Simply, when you walk on slippery stones (on the Cobb at Lyme Regis), there is a good chance you will slip and fall. You don’t really need a warning sign now do you?
By the way, if you see a sign that says something like ‘We do not accept responsibility fro injury caused on these premises’, it’s unlawful by reason of the Unfair Contracts Act 1977 S2 (1). But, of course, the occupiers know that and hope that you don’t.
Now, the 1984 Act is somewhat different. It deals with the duty owed to persons ‘other than visitors’ and by this it means ‘trespassers’ – people using a private right of way and oddly, people visiting National Parks. S1 (3) of the 1984 Act states the occupier owes a duty if:
a) He is aware of the danger.
b) He knows/has reasonable ground to believe that the person is in the vicinity of the danger.
c) He should be reasonably expected to offer the person some protection.
S1 (6) provides that no duty is owed to persons who willingly accepts risks. This was the main point of Tomlinson –v- Congleton  1 AC 46, where the claimant became injured when he dived into a pool at a country park. He ignored the warning signs and became seriously injured. When he entered the water, he became a trespasser. The defendants (relied on Scrutthon’s LJ opinion in The Carlgarth  P93 11 “..... When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters .....”
In Tomlinson, Lord Hobhouse said “..... Does the law require that all trees be cut down because some youths may climb them and fall? Does the law require the coastline and other beauty spots to be lined with warning notices? .....” The answer to all these questions, is of course, no.
And remember, an occupier cannot be prosecuted using these Acts, they refer to civil actions only.
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