As you may have been injured whilst on another’s premises for example whilst in a shop or restaurant, you could be entitled to claim compensation.  At Harris Fowler we specialise in getting you the compensation you deserve. This page will set out the elements of a claim we will need to prove and some hints and tips to help your claim go smoothly.

In order to make a claim for compensation under the Occupiers Liability Act 1957 (OLA) you have to prove six things

• That the Occupier is an occupier as defined by the OLA
• You were entitled to be on the premises i.e. were a lawful visitor
• The danger that caused the injury was due to the state of the property rather than an activity occurring on it
• The danger was something that the occupier knew about or should have known about
• The danger was something the occupier could have reasonably guarded against
• That the occupiers failure has caused the injury and/or losses

The First Part – Who is an occupier

The test of whether a party is an occupier depends on if they have a sufficient degree of control over the premises. 

In practice the questions the court ask to decide whether an occupier is in control is

1. whether the party was in a position to correct whatever defect or danger caused the injury
2. Whether they could appreciate their failure may result in someone being injured 

This means that there can be multiple occupiers of premises, for example several sub-contractors building a house. The period of occupation can also be short for example, a catering company using a kitchen in another building.

However, landlords will often not be an occupier once they have let out the property and it will instead be the tenant who is the occupier. Please see our section in relation to a landlord’s liability.

Quite often the identity of the occupier will be relatively straight forward and their identity will usually be displayed prominently on the front of the building but in cases when the occupier’s identity is not straight forward our specialist personal injury lawyers will provide you with the advice you need.

The Second Part – Lawful visitor

The second part of a claim is to show that you were a lawful visitor i.e. you had actual or implied permission. Actual permission is when you are invited onto the property for example to attend an interview whereas implied permission is less certain and covers such situations as visiting a shop.

It is important to note that your presence can have limitations for example a court is likely to find that someone visiting a shop during opening hours will likely have implied permission, however someone who then stays after hours by hiding is likely to be considered a trespasser and as such not a lawful visitor. Furthermore the permission can be limited in geographic scope for example, a customer who deliberately walks off the shop floor and into a store room is likely to be considered trespassing. 

Please note that claims can be made in regards to unauthorised visitors in a select number of circumstances particularly where the danger is severe/could be fatal or the unauthorised visitor is a child. As such, if you have been injured whilst being an unauthorised visitor, please call us to discuss whether you may have a claim.

The Third Part – Danger due to the state of property

This element of a claim is included as you need to show that the danger that caused you an injury was due to the state of the property rather than an activity occurring on it. For example an injury that occurs because of a wet floor from being mopped is likely to be considered a danger due to the state of the property but a waitress spilling hot soup onto you will instead be a claim in negligence rather than under the Occupiers Liability Act. 

In addition when considering a danger due to state of the property the court will give attention to the degree of care an ordinary visitor will exercise for example not diving head first into the clearly marked shallow end of a pool. 

The Occupier Liability Act also states that occupiers must expect and be prepared that children will be less careful but that they are able to rely on a reasonable level of supervision from parents and carers. This is of particular importance where an element of the premises constitutes an attraction to children. 

The Fourth Part – Knowledge of the danger

The fourth part of the test is whether the occupier knew about the danger or should have known about the danger. In cases where the occupier’s employees create the danger such as by mopping a floor and leaving it wet the occupier will clearly have knowledge of the danger. 

The situation becomes more difficult when talking about dangers the occupier should have known about. The court will often use the terms patent danger (i.e. one clearly visible to inspection) for example loose paving stones, uneven flooring or holes in the floor that the occupiers employees should have spotted and find that such dangers should have been spotted and guarded against; and Latent Dangers (i.e. ones that could not be seen or identified without a careful inspection if at all) in the case of latent dangers the court will assess whether the occupier should have been alert to the possibility of danger, the Act does not expect the occupier to guard against any and all dangers, but to instead take reasonable steps. Whether the occupier has done this will be based upon the specific facts of your case and upon which your solicitor will provide further advice.

The Fifth Part – The danger could have reasonably been guarded against 

The fifth part is whether the danger could have reasonably been protected against. As to whether the steps taken are reasonable will depend upon the likelihood of injury, the severity of injury, and the cost of the preventative measure. For example in the case of a wet floor after mopping the courts are likely to consider that by placing adequate signs warning of the danger would enable visitors to avoid the danger. 

Whereas, a court would likely find that giving quarry visitors a single warning that some blasting may be going on, then letting them roam about the quarry would be insufficient protection. This is because the risk of injury is high and its potential severity. The question the court will ask is whether the warning all things considered will enable the visitor to remain safe whilst on the premises.     

Hints and Tips for early on

Because of the Claimant’s need to prove breach of duty it is often beneficial when involved in an accident to obtain and keep the following

• A picture of the danger you were injured upon
• Any documents in relation to your presence upon the property, tickets, invitation letters etc.

The Sixth Part – That the breach caused loss

The final part of bringing a claim is demonstrating that the Occupiers failure to take reasonable care is responsible for causing the injury and losses being claimed, whether this is personal injury or other financial losses such as loss of earnings. 

Personal injury

With personal injury this would seem straight forward, you slip on a wet floor with no warnings and fall breaking your wrist, it would seem obvious that the accident is the cause of your fractured wrist. But this becomes more complicated when before the accident you already had problems with your wrist or had underlying problems which you may not have even known about. Because of these complexities the court relies upon the opinion of independent medical experts as to what caused the injuries and how long they are likely to last.

If you have been injured in an accident it is important to seek medical advice as soon as possible to ensure you are getting the appropriate treatment for your injuries.  In addition, as the medical expert will likely have sight of your records of attendance they will act as evidence as to the nature and extent of your symptoms and will help support your claim.

Because the court will rely upon the opinion of the medical expert it is important that the expert is aware of any previous health issues or accidents. In addition, as the expert will need to comment on whether any financial losses such as treatment received or time off work is due to the accident, it is important that you also discuss these with the medical expert.

Other losses

Once the medical expert has provided their opinion as to whether the loss (time off work/treatment etc.) is as a result of the accident we will then need to collect evidence to calculate what each head of loss may be and your highly qualified and experienced lawyer will advise what is needed in respect of each head of loss you are looking to claim.