Occupiers' Liability

Occupiers' liability generally refers to the duty owed by land owners to those who come
onto their land. However, the duty imposed on land owners can extend beyond simple
land ownership and in some instances, the landowners may transfer the duty to others,
hence the term occupier rather than owner. The term occupier itself is misleading since
physical occupation is not necessary for liability to arise. Occupiers' liability is perhaps a
distinct form of negligence in that there must be a duty of care and breach of duty,
causing damage. The rules of remoteness apply to occupiers liability in the exact same
way that they apply to negligence claims. Liability can arise on occupiers for omissions
since their relationship gives rise to duty to take action to ensure the reasonable safety of
visitors. The law relating to occupiers' liability originated in common law but is now
contained in two major pieces of legislation:

Occupiers Liability Act 1957 - which imposes an obligation on occupiers with regard to
'lawful visitors'

Occupiers Liability Act 1984 - which imposes liability on occupiers with regard to persons
other than 'his visitors'.

Di erent levels of protection are expected under the two pieces of legislation with a higher
level of protection a orded to lawful visitors.

Occupiers

Both the Occupiers Liability Acts of 1957 and 1984 impose an obligation on occupiers
rather than land owners. The question of whether a particular person is an occupier is a
question of fact and depends on the degree of control exercised. The test applied is one
of 'occupational control' and there may be more than one occupier of the same
premises:

Wheat v E Lacon & Co Ltd [1966] AC 552 Case summary

Physical occupation is not a requirement:

Harris v Birkenhead Corp [1976] 1 WLR 279 Case summary

Occupiers Liability Act 1957

The Occupiers Liability Act 1957 imposes a common duty of care on occupiers to lawful
visitors. By virtue of s.1(3)(a), the Act applies not only to land and buildings but also
extends to xed and movable structures, including any vessel, vehicle or aircraft. The
protected damage under the Occupiers Liability Act 1957 includes death, personal injury
and damage to property.
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 Lawful visitors -

Lawful visitors to whom occupiers owe the common duty of care for the purposes of the
Occupiers Liability Act of 1957 include:

Invitees - S.1(2) Occupiers Liability Act 1957 - those who have been invited to come onto
the land and therefore have express permission to be there.

Licensees - S.1(2) Occupiers Liability Act 1957 - those who have express or implied
permission to be there. According to S. 1(2) this includes situations where a licence would
be implied at common law. (See below)

Those who enter pursuant to a contract - s.5(1) Occupiers Liability Act 1957 - For
example paying guests at a hotel or paying visitors to a theatre performance or to see a
lm at a cinema.

Those entering in exercising a right conferred by law - s.2(6) Occupiers Liability Act 1957 -
For example a person entering to read the gas or electricity metres.

Implied licence at common law

In the absence of express permission to be on the land, a licence may be implied at

common law where there exists repeated trespass and no action taken by the occupier to
prevent people coming on to the land. This requires an awareness of the trespass and the
danger:

Lowery v Walker [1911] AC 10 Case summary

Repeated trespass alone insu cient:

Edwards v Railway Executive [1952] AC 737 Case Summary

Allurement principle
The courts are more likely to imply a license if there is something on the land which is
particularly attractive and acts as an allurement to draw people on to the land.

Taylor v Glasgow City Council [1922] 1 AC 44 Case summary

However, since the introduction of the Occupiers Liability Act 1984, the courts have been
reluctant to imply a licence:

Tomlinson v Congleton [2003] 3 WLR 705 Case summary

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Non lawful visitors

The 1957 Act does not extend protection to:

• trespassers

• Invitees who exceed their permission

• Persons on the land exercising a public right of way:

McGeown V Northern Ireland [1994] 3 All ER 53 Case summary

• Persons on the land exercising a private right of way:

Holden v White [1987] QB 380 Case summary

The common duty of care

The common duty of care is set out in s.2(2) Occupiers Liability Act 1957:

S.2(2) - 'The common duty of care is 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.'

Thus the standard of care varies according to the circumstances. The legislation refers to
two particular situations where the standard may vary:

• S.2(3)(a) - an occupier must be prepared for children to be less careful than adults

• S.2(3)(b) - an occupier may expect that a person in the exercise of his calling will
appreciate and guard against any special risks ordinarily incident to it

S. 2(3) (a) Child visitors

The courts will take into account the age of the child and level of understanding a child of
that age may be expected to have

Titchener v British Railways Board [1983] 1 WLR 1427 Case summary

Jolley v Sutton [2000] 1 WLR 1082 Case summary

Taylor v Glasgow City Council [1922] 1 AC 44 Case summary

Phipps v Rochester Corporation [1955] 1 QB 450 Case summary

S.2(3)(b) Common calling

This provision applies where an occupier employs an expert to come on to the premises
to undertake work. The expert can be taken to know and safeguard themselves
against any dangers that arise from the premises in relation to the calling of the expert.
For example if an occupier engages an electrician, the electrician would be expected to
know the dangers inherent in the work they are employed to do.

Roles v Nathan [1963] 1 WLR 1117 Case summary

Salmon v Seafarer Restaurant [1983] 1WLR 1264 Case summary

Ogwo v Taylor [1987] 3 WLR 1145 Case summary

Warnings and warning signs

It may be possible for an occupier to discharge their duty by giving a warning of the
danger.

Roles v Nathan [1963] 1 WLR 1117 Case summary

However, S.2(4)(a) Occupiers Liability Act 1957 provides that a warning given to the
visitor will not be treated as absolving the occupier of liability unless in all the
circumstances it was enough to enable the visitor to be reasonably safe.

The warning must cover the danger that in fact arises:

White v Blackmore [1972] 3 WLR 296 Case summary

There is no duty to warn against obvious risks:

Darby v National Trust (2001) 3 LGLR 29 Case summary

Cotton v Derbyshire Dales District Council [1994] EWCA Civ 17 Case summary

Staples v West Dorset District Council [1995] PIQR 439 Case summary

Dangers arising from actions undertaken by independent contractors

 S.2(4)(b) Occupiers Liability Act 1957

An occupier is not liable for dangers created by independent contractors if the occupier
acted reasonably in all the circumstances in entrusting the work to the independent
contractor and took reasonable steps to satisfy himself that the work carried out
was properly done and the contractor was competent.

Ferguson v Welsh [1987] 1 WLR 1553 case summary

Gwilliam v West Hertfordshire Hospitals NHS Trust [2003] QB 443 case summary

Defences applicable to Occupiers Liability Act 1957

Volenti non t injuria - s.2(5) OLA 1957 - the common duty of care does not impose an
obligation on occupiers in respect of risks willingly accepted by the visitor. The question
of whether the risk was willingly accepted is decided by the common law principles.

Contributory negligence - Damages may be reduced under the Law Reform

(Contributory Negligence) Act 1945 where the visitor fails to take reasonable care for their
own safety.

Exclusion of liability - s. 2(1) OLA 1957 allows an occupier to extend, restrict, exclude or
modify his duty to visitors in so far as he is free to do so.

White v Blackmore [1972] 3 WLR 296 Case summary

Where the occupier is a business the ability to exclude liability is subject to the Unfair
Contract Terms Act 1977

Occupiers Liability Act 1984

The Occupiers Liability Act 1984 imposes a duty on occupiers in relation to persons 'other
than his visitors' (S.1(1)(a)OLA 1984). This includes trespassers and those who exceed
their permission. Protection is even a orded to those breaking into the premises with
criminal intent see Revill v Newbery [1996] 2 WLR 239 Case summary. Whilst it may at
rst appear harsh to impose a duty on occupiers for those that have come on to their land
uninvited and without permission, liability was originally recognised at common law for
child trespassers where the occupier was aware of the danger and aware that
trespassers, including children would encounter the danger. British Railways Board v
Herrington [1972] AC 877 Case summary overruling Addie v. Dumbreck [1929] AC 358
Case summary.

'Occupier' is given the same meaning as under the 1957 Act (S.1(2) OLA 1984). Since the
Occupiers Liability Act 1984 applies to trespassers, a lower level of protection is o ered.
Hence the fact that death and personal injury are the only protected forms of damage and
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 occupiers have no duty in relation to the property of trespassers. (S.1(8) OLA 1984). Also
the duty only arises when certain risk factors are present.

The circumstances giving rise to a duty of care

S.1(3) Occupiers Liability Act 1984 An occupier owes a duty to another (not being his
visitor) if:

(a) He is aware of a the danger or has reasonable grounds to believe that it exists

(b) He knows or has reasonable grounds to believe the other is in the vicinity of the danger
or may come into the vicinity of the danger

(c) The risk is one in which in all the circumstances of the case, he may reasonably be
expected to o er the other some protection

If all three of these are present the occupier owes a duty of care to the non-lawful visitor.

The criteria in s.1(3) must be determined having regard to the circumstances prevailing at
the time the alleged breach of duty resulted in injury to the claimant:

Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231 Case summary

Standard of care

S.1(4) OLA 1984 - the duty is to take such care as is reasonable in all the circumstances
of the case to see that the other does not su er injury on the premises by reason of the
danger concerned.

Revill v Newbery [1996] 2 WLR 239 Case summary

Ratcli v McConnell [1997] EWCA Civ 2679 Case summary

The duty may be discharged by giving a warning or discouraging others from taking the
risk S.1(5) Occupiers Liability Act 1984 - note there is no obligation in relation to the
warning to enable the visitor to be reasonably safe - contrast the provision under the 1957
Act.

Tomlinson v Congleton [2003] 3 WLR 705 Case summary

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 Defences

Volenti non t injuria - s.1(6) OLA 1984 - no duty of care is owed in respect of risks
willingly accepted by the visitor. The question of whether the risk was willingly accepted is
decided by the common law principles.

Contributory negligence - Damages may be reduced under the Law Reform

(Contributory Negligence) Act 1945 where the visitor fails to take reasonable care for their
own safety.

Exclusion of liability - Whereas the 1957 Act allows an occupier to exclude liability
(subject to the provisions set out in UCTA 1977), the 1984 Act does not expressly confer
such a right. This may be an oversight by the legislature and it may be possible to exclude
liability since it is not expressly forbidden or it may be that the legislature was of the
opinion that it should not be possible to exclude liability for the basic level of protection
a orded to trespassers.
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