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There appears to be a common misconception within Defendants of how and when this Act is applicable to any given situation. So why can’t the Defendants get it right?

A piece of law commonly relied upon in all manner of cases including slips and trips, workplace injuries and more is Section 2(2) of the Occupier’s Liability Act 1957 which reads:

“The common duty of care is 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.”

This, essentially is the common law/negligence duty i.e. to take reasonable care in all the circumstances.

The Section in fact has quite wide application and can be utilised as well of or sometimes instead of the Highways Act 1980 in highway trip claims.  For example, in the case of Maynard v Wigan Metropolitan Borough Council [2011] EWCA Civ 1694 the Claimant successfully sued the local council following a trip in a hole on a grass verge.  As it was not a “highway” Section 41 of the 1980 Act was not available for use but nevertheless the Council was the “occupier” of the grass verge as they owned the land and so, like any land owner, they had a legal duty to ensure people using the grass verge were reasonably safe in doing so.

A point however that seems to fox Defendant solicitors and some of their barristers is that Section 2(2) as above does not simply apply to the condition of a premises – it also applies to things done on/in those premises.  So, for instance, if someone visits a beauty salon and whilst there is nothing wrong with the salon, nor even a temporary hazard created such as liquid on the floor, if something being done in the salon is negligent for example cosmetic treatment without a patch test, the Occupier’s Liability Act will still apply.

Here is the relevant section, being the very beginning, Section 1(1):

“The rules enacted by the two next following sections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.”

The rule is clear: “danger due to things done on the premises” is covered (as well as negligence caused by danger due to things not done).

This is, in my view, a wide rule and, in its simplest sense, the duty to ensure people inside your premises whether that be your house, your shop or even your workplace are safe bearing in mind the state of your premises or the things being done, or not done, whilst on them.

However, when included in court documents the typical Defendant response is along the lines: “The Act does not apply to issues other than the state of the premises.”

As reinforcement for my interpretation think of this example: a person visits a public house or bar.  There is nothing wrong with the condition of the pub/bar in any way and the floors are clear of slip or trip hazards.  The owners however have decided that staff should put on some form of entertainment, which they are not trained or able to do well, and as a consequence a patron is injured.  Referring back to Section 2(2), can it be said the owners took reasonable care to ensure visitors were reasonably safe in using the pub/bar?  In my view unlikely.  When we consider the principle at play it is essentially that the management of the premises have, negligently, directed staff to undertake actions which are predictably unsafe to customers.  What then would be the difference between that example and the management of a beauty salon implementing a rule that customers were no longer to be asked for a medical history or offered a patch test?  Again, how could they be said to have took such care to ensure those customers were reasonably safe in using the premises?

This misconception is surprisingly common and I have even observed it on the part of relatively senior defendant barristers.  If one stands back and considers the general duty at 2(2) however how could it ever be the case that a premises could be reasonably safe for the purpose the visitor was there if an unsafe act was being done on the premises?

Aston Knight Solicitors Bury are a specialist firm of solicitors that specialise in serious injuries including medical negligence claims and work injury compensation.  If you would like to discuss further please contact a member of our team on 0161 399 1231 or for a free and confidential discussion.

By James Winterbottom, Solicitor

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