A claimant who was rendered tetraplegic when she dived into a private swimming pool has failed to prove the owner was in breach of the Occupiers Liability Act 1957 because it is not 'incumbent on a householder with a private swimming pool to prohibit adults from diving into an ordinary pool whose dimensions and contours can clearly be seen' in the High Court decision of Grimes v Hawkins.

PI & Clinical Negligence analysis: The Court of Appeal considered an appeal by the Ministry of Defence (MoD), against a first instance decision holding it liable, at common law and under the Occupiers’ Liability Act 1957 (OLA 1957), for serious injuries sustained by the claimant, a rifleman, as a result of a fall which occurred on MoD premises. The judge at first instance refused to uphold the defence of ex turpi causa advanced by the MoD and made no reduction for contributory negligence. The MoD’s appeal, which was advanced on six grounds, was dismissed in full. Produced in partnership with Emily Lodge, Senior Associate at Quinn Emanuel Urquhart & Sullivan UK LLP.

The duty of those who occupy property owed to visitors or trespassers to the property.

This Checklist provides junior lawyers with the steps to take when dealing with an occupiers' liability case, to include identifying the parties and the applicable legislation. Identify the parties and premises • Identify the occupier(s) (person/entity with sufficient control over the premises) • Note: multiple parties can be occupiers simultaneously • Confirm premises type (land, buildings, structures such as aircraft or vehicles) Confirm status of visitor • Determine if visitor is lawful: ◦ express permission (explicit invitation)? ◦ implied permission (common entry eg shop)? ◦ legal right to enter (eg police officer)? • If not lawful, proceed with checks under Occupiers’ Liability Act 1984 (OLA 1984) Determine duty of care under Occupiers’ Liability Act 1957 (lawful visitors) • There is a duty to ensure premises are reasonably safe for the purpose intended • Consider if visitor category affects duty: ◦ children (higher duty—consideration for child-specific dangers) ◦ skilled visitors (lower duty—assumption of professional awareness

This Practice Note deals with the liability issues which arise when premises are left in a dangerous state by independent contractors, builders and landlords. If an occupier employs an independent contractor, the occupier will not be liable if it can show that it acted reasonably in entrusting the work to an independent contractor and it had taken such steps (if any) as it reasonably ought to satisfy itself that the independent contractor was competent and the work had been properly done. Building contractors and subcontractors can be held liable if it can be shown that they had sufficient control over the premises to be an occupier and any faulty construction, maintenance or repair works they have undertaken on the premises caused the claimant’s accident. A landlord is not an occupier if they give the tenant control of the property. However, even where a landlord has given up effective control of the premises, it will usually retain control of any common parts (eg hallways, lifts, etc in a building or flats) and will therefore be an occupier

PI & Clinical Negligence analysis: In Brown and others v South West Lakes Trust and others, the Court of Appeal held that a trespasser could not rely on the Occupiers’ Liability Act 1984 (OLA 1984) in circumstances where she had inadvertently entered the occupier’s premises and drowned in a body of water. The Court of Appeal considered the position to be indistinguishable from Tomlinson v Congleton Borough Council in which Lord Hoffmann had barred a claim brought by a trespasser who deliberately performed an activity which was inherently dangerous. The Court of Appeal also interpreted OLA 1984, s 1(3)(b) restrictively by reference to the law of public nuisance. Consequently the claimants’ claims were struck out. The claimants are seeking permission to appeal to the Supreme Court. Written by Rob Weir QC, barrister at Devereux Chambers, London, who is leading counsel for Brown.

The Court of Appeal has upheld a trial judge's decision holding a Council primarily responsible for their failure to maintain a grass verge. This was despite noted deficiencies in the trial judge's decision and a lack of contemporaneous photographs or measurements of the defect.

Occupiers' Liability Act 1957 Under the Occupiers' Liability Act 1957 (OLA 1957), an occupier of property owes a common law duty of care to all their visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them. They must take such care as is reasonable in all the circumstances of the case. The test for liability under OLA 1957 is: • the claimant must be a visitor at the material time • the defendants must be occupiers • the defendant must have breached the statutory duty, ‘to take such care as in all the circumstances of the case [was] reasonable to see that [the claimant would be] reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupiers to be there’ • the breach must have caused the claimant actionable injury In Esdale v Dover District Council, the Court of Appeal held that the test for compliance is objective. The standards of safety which a council

Personal Injury analysis: The High Court has found the occupier of licensed premises liable for injuries suffered by the claimant when he fell down a staircase. There were issues as to the cause of the fall and how much alcohol the claimant had drunk beforehand. Marc Willems QC, barrister at Cobden House Chambers, examines the AB case in more detail and the implications of the judgment.

PI & Clinical Negligence analysis: Upon appeal, the High Court found that a claimant casual footballer paying to play a ‘knockabout’ game at school premises where there were no arrangements in place to retrieve a ball kicked out of play into another part of the defendant’s sports facilities (adjacent sports playing fields) caused his own injury when he climbed a 2.1m gate and severely lacerated his hand. The claimant was a trespasser while climbing the gate between two adjacent parts of the premises where he was not a trespasser. The defendant’s duty of care did not extend to providing any system or facilities to aid ball retrievable, despite the trial judge’s findings that doing nothing and waiting was ‘not what football players would do’. The threshold test imposing a duty of care was not met because the claimant decided to climb the locked gate to gain access to adjacent playing fields. What amounts to ‘reasonable’ safety of visitors under section 2(2) and (5) of the Occupiers’ Liability Act 1957 (OLA 1957) appears to fall firmly within the characteristics equating to a definition of ‘reasonable’ amounting to ‘adequate’, rather than equating to the dictionary definition of reasonable ‘based on or using good judgment and therefore fair and practical’. On the facts and circumstances of this case the sports premises were safe, despite there being no facility for ball retrieval. The danger to the claimant only arose because the claimant decided to take a risk to climb a gate that was an obvious danger. Written by Abigail Holt, barrister at Garden Court Chambers.

Background The Occupiers’ Liability Act 1957 (OLA 1957) was enacted to provide for a ‘common duty of care’ owed by occupiers of premises. The duty is ‘common’ in that it is owed to various categories of lawful or authorised visitors such as invitees, licensees and those whose right to be on the premises arises 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 under the Occupiers’ Liability Act 1984—the duty of care. The duty of care An 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

PI & Clinical Negligence analysis: This is an occupier’s liability claim in which the court ruled in favour of a claimant who sustained serious injuries after a fall from an inadequately restricted fourth floor window. It is the latest in a line of cases dealing with falls from unrestricted windows that present a risk of falling from height including Lewis v Six Continents plc, Pollock v Cahill and James v White Lion Hotel. This one was unusual because despite finding the claimant to be unreliable, the court accepted her case on the two factual disputes, concerning the fall mechanism and the state of the window at the material time. The claimant’s highly vulnerable status and the absence of contemporaneous documentation were also unusual features that the court had to grapple with. The reduction of 35% for contributory negligence, influenced by the claimant’s vulnerable character, is notably modest given the circumstances. Written by Richard Edwards, partner at Potter Rees Dolan, a Hugh James business.