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A Rare Bird: the Lesser-Spotted Section 5 of the Occupiers' Liability Act 1957

Personal injury lawyers know all about the 1957 Act (“OLA”). In fact, along with the Highways Act 1980, it is probably one of statutes we deal with most often outside of an employer’s liability context. It is a short Act, with just three substantive sections, and it’s been on the statute book for over half a century. So it’s odd, perhaps, that in that time only two cases have considered Section 5: Sole v WJ Jallt Ltd [1973] QB 574 and Maguire v Sefton MBC [2006] 1 WLR 2550 (CA).


Section 5 is entitled “Liability in contract”. It’s worth citing the substantive subsection in full:

(1) Where persons enter or use, or bring or send goods to, any premises in exercise of a right conferred by contract with a person occupying or having control of the premises, the duty he owes them in respect of dangers due to the state of the premises or to things done or omitted to be done on them, in so far as the duty depends on a term to be implied in the contract by reason of its conferring that right, shall be the common duty of care. [Emphasis added]


The curiosity in the application of this section arises most noticeably in the context of claims by a tenant against a landlord. Imagine, for example, that a tenant slips and falls on a dangerous staircase in the common parts of a premises. The staircase is not part of the premises demised to the tenant, and so they cannot pursue a claim under the statutes which govern the upkeep of such premises by a landlord (e.g. the Defective Premises Act 1972). But the landlord will generally be the occupier of any common parts of the premises retained by him, so he will be an occupier for the purposes of the OLA.


So far so straightforward. It might be thought that this is an easy claim to make out on a “conventional” occupier’s liability basis. But would it be correct in this context to bring a claim under Section 2 of OLA on the basis that the tenant was the landlord’s visitor?


Possibly not. After all, the tenant is arguably not using the staircase as an invitee or licensee of the landlord in the common law sense but pursuant to a right (i.e. an express or implied easement of way provided for in the lease). If the tenant is there by right, then they are arguably not a “visitor” for the purposes of Section 2, for the same reasons that a user of public of private right of way is not a visitor of that way, i.e. precisely because they do so as of right and not as a permissive user.


If the tenant is not a visitor for the purposes of OLA then their most obvious remedy will be in contract, and hence one will look to Section 5. But Section 5 does not create a duty; it merely defines the content of the duty where that duty depends on an implied term.


The upshot of this is that where a duty falls to be implied that duty will be the common duty of care (i.e. reasonable care to ensure reasonable safety etc.). But there may be situations where there is no need to imply such a duty (in particular, where the lease makes clear provisions as to what the landlord and tenant are responsible for in terms of maintenance). Where there is no need to imply a duty then Section 5 will not come to the rescue of a tenant and there will, it is suggested, be no duty incumbent upon a landlord under OLA.


This seems to be a novel argument, so comments and observations will be greatly received. Should you come across this situation in practice, then you may wish to consider taking the point: it might ensure that Section 5 finally emerges from the shadows!




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