Law

This is not a complete list of the law. It is intended to give you a flavour of your rights.

This “common duty of care” is a duty to take such care as in all the circumstances is reasonable to see that a visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there.

“Occupier” is not defined by the Act but case law has clarified that any one of the following may be an “occupier” :-
an owner in occupation, a tenant, a licensee, the person having the right to possession of the premises and the right to permit or invite others to enter.

2. Children

Section 2 (3) (a) specifically provides that an occupier must be prepared for children to be less careful than adults.

Something that may not constitute a danger to an adult may do so to a child. A warning that is sufficient to deter or highlight the risk to an adult may be insufficient in the case of a child.

The extent of the duty has been clarified by case law most notably the House of Lords’ authority of:

Jolley v. Sutton London Borough Council (2000)

“The ingenuity of children in finding unexpected ways of doing mischief to themselves should never be underestimated”.

Exclusions

1. Independent Contractors (s2 (4)(b) ) - An occupier may delegate his duty under the Act to an independent contractor provided that:

He has acted reasonably in entrusting the work to an independent contractor; and he has taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent; and that the work had been properly done.

Signs and Notices

Occupiers can extend, restrict modify or exclude their duty to any visitor ­ however in the case of business liability

“ 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.”

(The Unfair Contract Terms Act 1977 s 2 (1))

Trespassers

The Occupiers Liability Act 1984 was passed to provide for a duty of care to be owed by occupiers to trespassers and those using private rights of way.

Section 1 (4) provides that an occupier owes a trespasser a duty to take “such care as is reasonable” in all the circumstances of the case to see that the trespasser does not suffer injury on the premises “ by reason of any danger on them, provided that the following conditions apply:

( a ) that the occupier knows, or ought to know, of the existence of the danger on the land;

( b ) that the occupier knows, or ought to know, that the trespasser is in the vicinity of the danger, or is likely to come into it; and

( c ) the risk is one which the occupier in all the circumstances of the case might reasonably be expected to offer some protection

Therefore whether in a pub, club, shop, supermarket, restaurant or any other public place the law imposes a duty on the “occupier” that you will be kept reasonably safe.

Tripping in the Street

If you have been injured due to tripping in the street as a result of, for example, a raised flag stone, more than likely the local Council through its Highways Department will owe a statutory duty.

This is provided by section 41(1) of The Highways Act 1980, which states:

“ The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty …to maintain the highway”

“highway and maintainable at the public expense” are defined at sections 36 and 329(1)

“maintenance” includes repair – section 329(1)

A Claimant MUST prove, on the balance of probabilities (51% or more) that:

the part of the highway where the accident occurred was not reasonably safe; AND

that the accident was caused by the dangerous condition of the highway.

Even when established that the highway authority is liable, the Act allows a Statutory Defence under Section 58:

1. In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence ( without prejudice to any other defence or the application of the law relating to contributory negligence ) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates, was not dangerous for traffic.

2. For the purposes of a defence under subsection (1) above the court shall in particular have regard to the following matters:

(a) the character of the highway, and the traffic which was reasonably to be expected to use it;
(b) the standard of maintenance appropriate for a highway of that character and used by such traffic;
(c) the state of repair in which a reasonable person would have expected to find the highway;
(d) whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part
of the highway to which the action relates was likely to cause danger to users of the highway;
(e) where the highway authority could not reasonably have been expected to repair that part of the highway before the
cause of action arose, what warning notices of its condition had been displayed;
In practice Highway Authorities can and very often do seek to rely on this Statutory Defence when trying to dispute genuine compensation claims.

At Fox Claims we are experienced in dealing with such replies and will not be quick to abandon cases upon receipt of these.