FAQ : Occupiers Liability

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FAQ : Occupiers Liability

Postby Angelisle » Wed Jul 06, 2005 11:10 am

Occupiers Liability

Every 'occupier' of property has a duty to ensure that it is reasonably safe for the people who are there by permission or who have a right to be there so your duty does not just extend to your friends and relations, but also to people delivering post and milk, collecting rubbish etc, this is laid down in the Occupiers' Liability Act 1957. That does not mean that every time someone hurts himself you will be liable, liability will depend on how the accident happened. If you have neglected repairs to your property, which you know or should have known, were needed, then it is your fault. If you had done all you could reasonably be expected to have done, then you are not to blame.
Visitors are obliged to take reasonable care themselves. If they contribute to the injury by their own lack of care, the compensation you may have to pay will be reduced. An example being if there was an enormous pothole that should have been obvious to any visitor, or if you put up a warning sign, a court could decide for example that you were 70 per cent responsible for the injury, and the visitor was 30 per cent responsible.
You must expect children to be less careful than adults, particularly if you have 'allurements' on your premises, for example, a pond, pets, or anything that is likely to attract children. So, if a child is injured on your land because it was not reasonably safe, it will be difficult to argue that he or she contributed to the injury.
If you are responsible you risk having to pay compensation for the time the injured person has to take off work, and the pain and suffering caused which could be substantial. Check to see whether your household insurance provides cover for this kind of third party liability.
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Postby AJL » Mon Mar 30, 2009 10:24 am

There is also the OLA '84 which applies to "non-visitors" - ie; trespassers.
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Re: FAQ : Occupiers Liability

Postby bushieboy » Sat Dec 03, 2011 12:05 pm

Is it the occupiers responsibility to keep his/her garden tidy if they do not reside there,I have an issue with a neighbour who has not lived in the property for 2 yrs and the garden now resembles a jungle,any advise please.
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Re: FAQ : Occupiers Liability

Postby enigma » Sat Dec 03, 2011 1:53 pm

It is his garden so he can do what he likes with it.
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Re: FAQ : Occupiers Liability

Postby Ecklike » Sun Mar 18, 2012 11:22 am

It is certainly incumbent upon the occupier to take reasonable steps to prevent injury to anyone - including trespassers.

But, if you are a neighbour, and unless you have a public or private right of way across your neighbour's land whereby his (alleged) lack of care means that your safety could be put at risk, then it is, as 'Engima' says, your neighbour's garden and he can do as he wishes - including being careless and accepting a higher level of risk of litigation against him.
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Re: FAQ : Occupiers Liability

Postby ukmicky » Sun Apr 29, 2012 2:47 pm

Ecklike wrote:It is certainly incumbent upon the occupier to take reasonable steps to prevent injury to anyone - including trespassers.

But, if you are a neighbour, and unless you have a public or private right of way across your neighbour's land whereby his (alleged) lack of care means that your safety could be put at risk, then it is, as 'Engima' says, your neighbour's garden and he can do as he wishes - including being careless and accepting a higher level of risk of litigation against him.



As far as a Private ROW goes if any danger was caused due the direct condition of the way then the land owner needs do nothing and the the dominant tenant is the one who needs to ensure the way is safe for himself and his visitors.

If you have a pathway leading to your door then the implied right for visitors to use means you must keep it reasonably safe. Off the pathway it is basically visitor beware with a lesser degree of care required the further you go from the path and unless you have something placed on the land that is so obviously dangerous like sharpened daggers sticking out of the ground or bare electrical cables you don't need to worry much about if a trespasser hurts him self.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: FAQ : Occupiers Liability

Postby petal » Thu Apr 28, 2016 12:21 pm

What defines someone as an 'occupier'
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Re: FAQ : Occupiers Liability

Postby mr sheen » Thu Apr 28, 2016 2:07 pm

Occupier is anyone who has a vested interest in the land and who may have a responsibility to keep it in good condition for users eg land owner, beneficiary of private right of way, tenant etc. occupier is more all-encompassing and is used as oppose to owner so that wider responsibility can be inferred.

Also see above post by Ukmicky which explains responsibility.
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Re: FAQ : Occupiers Liability

Postby petal » Thu Apr 28, 2016 2:37 pm

Is it really as clear cut as you suggest?

"Neither Occupiers' Liability Act defines "occupier". The definition must be sought in case law. The currently applicable test for the status of "occupier" is the degree of occupational control. The more control a person has over certain premises, the more likely that person is to be considered "occupier" for the purposes of the two Occupiers' Liability Acts."
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Re: FAQ : Occupiers Liability

Postby mr sheen » Thu Apr 28, 2016 3:32 pm

Nothing in law is clear cut and black and white....hence counsel argue over every word and each will argue the opposite or anything in between.
It would take a claim against someone to go to court and the claimant would have to prove that , on the balance of probabilities, the defendant 'occupies' said land and consequently has liability. The court would decide if the defendant has liability. So for a right of way, the claimant would be able to argue that ...
1 they were using the right of way to access the defendants property
2 they were injured as a result of poor maintenance
3 the defendant had a duty to me as an invitee
4 the defendant was negligent in not ensuring that the rOW was suitable for my use since my use of it was entirely foreseeable

Since the dominant owner has the right to maintain the ROw, he may be found negligent by not exercising that right.

the landowner has no responsibility to maintain the rOW for the dominant users or their invitees, so I am suing the person who was negligent in not maintaining it suitable for my use when my use was entirely foreseeable and legitimate.

If you want to take your chance against this argument...go for it! Good luck.
In view of the argument above though, an insurance company which would probably take over the claim, may well settle the claim rather than rely on being able to argue that the defendant was not an 'occupier' since it would be reasonable to consider someone who uses land as a beneficiary of a right of way and has the right to maintain it....is an 'occupier' of that land.
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Re: FAQ : Occupiers Liability

Postby petal » Thu Apr 28, 2016 4:05 pm

mr sheen wrote:Nothing in law is clear cut and black and white


I fully realise the law is not black and white having been personally experienced lengthy legal proceeding, which is why I asked if you thought things were as clear cut as you had implied. Because the law is not black and white is one of the main reasons people come these forums to seek the opinions and experiences of others.

mr sheen wrote:If you want to take your chance against this argument...go for it! Good luck


As you are aware of the situation I am in, and in all likely hood be prevented from making repairs, I am surprised you made that comment.

Already we have a divided opinion.

viewtopic.php?f=8&t=20311&p=195199#p195199
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Re: FAQ : Occupiers Liability

Postby mugwump » Thu Apr 28, 2016 4:20 pm

mr sheen wrote:Nothing in law is clear cut and black and white....hence counsel argue over every word and each will argue the opposite or anything in between.
It would take a claim against someone to go to court and the claimant would have to prove that , on the balance of probabilities, the defendant 'occupies' said land and consequently has liability. The court would decide if the defendant has liability. So for a right of way, the claimant would be able to argue that ...
1 they were using the right of way to access the defendants property
2 they were injured as a result of poor maintenance
3 the defendant had a duty to me as an invitee
4 the defendant was negligent in not ensuring that the rOW was suitable for my use since my use of it was entirely foreseeable

Since the dominant owner has the right to maintain the ROw, he may be found negligent by not exercising that right.

the landowner has no responsibility to maintain the rOW for the dominant users or their invitees, so I am suing the person who was negligent in not maintaining it suitable for my use when my use was entirely foreseeable and legitimate.

How does this fit in with the ROW also being the land owners primary access route?
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Re: FAQ : Occupiers Liability

Postby mr sheen » Thu Apr 28, 2016 5:18 pm

All depends upon who has brought in/owes duty of care to the invitee. The invitee can sue whoever he thinks was negligent in not ensuring that the row was suitable for purpose which would be, in the first instance, whoever s/he was using the land to visit. The landowner has no responsibility to maintain the row suitable for the purpose to which the dominant owner uses it and hence is unlikely to be found liable/have duty of care, towards invitees of the dominant user of the row since he cannot foresee its use nor be negligent in not maintaining it for the dominant user.

Claimant visiting landowner would sue landowner and may or may not be successful depending upon whether there was negligence and foreseability of injury.

Claimant visiting dominant user could try to sue landowner but landowner has no responsibility to maintain it suitable for use by dominant user, therefore is unlikely to be found to have a duty of care to claimant visiting someone else but may have reduced liability as towards a trespasser but that would be for a court to decide. The claimant would assess the probability of success and would probably choose to sue the owner of the property he was visiting since as an invitee there was a duty of care and hence a better chance of successful claim.

As for the 'divided opinion' here....just opinion! Can't comment on a specific case where snippets of info are given by one side, details are sketchy (eg details of court order/ costs/consequences has not been revealed) and the case is clearly long running and has involved the police, who don't consider the poster as the victim...so who knows what is really going on.

If there is a clear ROW in deeds on both properties, it should be straightforward to get an injunction to prevent interference with rights including interference with maintenance...and this doesn't seem to be the case...... :?
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Re: FAQ : Occupiers Liability

Postby petal » Thu Apr 28, 2016 5:48 pm

mr sheen wrote:details are sketchy (eg details of court order/ costs/consequences has not been revealed)


There is nothing sketchy about the details, they are all there, court order, costs, events before and after, everything, but by your own admission, you have chosen not to read about them instead suggesting that the solution to neighbour dispute is a JCB.

To be honest, I'm not sure how any of that is relevant to the question of what is the definition of 'occupier' and the subsequent statement of ""Neither Occupiers' Liability Act defines "occupier". The definition must be sought in case law. The currently applicable test for the status of "occupier" is the degree of occupational control. The more control a person has over certain premises, the more likely that person is to be considered "occupier" for the purposes of the two Occupiers' Liability Acts." This would imply there can be situations where the dominant tenement would not be considered to be an 'occupier,?

mr sheen wrote:has involved the police, who don't consider the poster as the victim


Who said that? Not me. I said they were ineffectual and did nothing, except remove my finger prints and DNA from the database, not really the action that would be made towards someone who isn't a victim.

mr sheen wrote:If there is a clear ROW in deeds on both properties, it should be straightforward to get an injunction to prevent interference with rights including interference with maintenance...and this doesn't seem to be the case...... :?


How do you know there is a problem regarding an injunction? Surely the reason for coming on Garden Law is not to get injunctions, but to see what opinions and input others have, which might prevent the need to go down the route of injunctions. You have previously stated that you would act in a way that would prevent you from incurring any legal costs, is it not reasonable for others to also try and avoid legal costs.
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Re: FAQ : Occupiers Liability

Postby mr sheen » Thu Apr 28, 2016 6:05 pm

Legal dictionary defines 'occupier' as 'he who has enjoyment of a thing' which would include dominant user. Nice simple definition which passes the 'reasonable man' test but plenty would argue it.

It would be a clever argument to get out of being considered as an occupier when one has benefit of the use of land since all occupation of land amounts to rights over the land, since it cannot be physically taken and even ownership amounts to nothing more than a bundle of rights...not seen a coherent argument here that a beneficiary of rights over land is not an occupier.....yet.
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