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THE CAUSE OF ACTION DEFINED
This chapter concerns the liability of occupiers of premises, D, towards either lawful visitors or trespassers, C, who are injured (or killed) whilst on those premises.
The law of occupiers' liability is governed, in English law, by two statutes:
• the Occupiers' Liability Act 1957 (‘the OLA 1957’), which governs the liability of an occupier of premises to his lawful visitors. An occupier owes any lawful visitor a ‘common duty of care’, the terms of which are ‘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 purposes for which he is invited or permitted by the occupier to be there’ (per s 2(2)); or
• the Occupiers' Liability Act 1984 (‘the OLA 1984’), which governs the liability of an occupier to trespassers (or unlawful visitors). An occupier does not owe a ‘common duty of care’ to a trespasser; rather, the occupier's duty of care is far more limited.
The law of occupiers' liability is a true mix of statutorily-stated principles and common law negligence. Both Acts impact, to some degree, as to whether the occupier owed a duty of care or breached that duty, and the defences available to him; whilst causation and remoteness are entirely governed by the common law.
Where the Acts apply, it has been judicially clarified that their provisions were truly intended to replace the common law, rather than merely to consolidate it (per Maloney v Torfaen CBC). As Carnwath LJ explained in Maguire v Sefton MBC, the law of occupiers' liability ‘had become over-complicated by subtle distinctions derived from the case law over several decades’, and that the reform proposals ‘were not pure codification in the strict sense. They were … codification-plus; that is, sorting out the law by a combination of re-statement, and amendment, as necessary’.
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