Occupiers' Liability

Occupiers' Liability

Occupiers' liability governs the duty of care owed by occupiers of premises to those who enter the premises and suffer injury or damage. It is governed by two statutes: the Occupiers' Liability Act 1957 (duty to visitors) and the Occupiers' Liability Act 1984 (duty to trespassers and other non-visitors).

Key Definitions

Who is an Occupier?

The Acts do not define "occupier" — the common law definition applies. An occupier is a person who has a sufficient degree of control over premises to owe a duty of care.

• Wheat v E. Lacon & Co Ltd [1966] — a brewery company owned a pub; the manager lived on the upper floors and took in paying guests. A guest fell on an unlit staircase and died. The House of Lords held that both the brewery company and the manager could be occupiers — there can be multiple occupiers of the same premises. The duty depends on the extent of each occupier's control.

• Control, not ownership, is the test — a building contractor working on a site may be the occupier of the site (AMF International Ltd v Magnet Bowling Ltd [1968])

What are Premises?

The Acts apply to "premises" broadly defined, including:

• Land, buildings, and structures
• Fixed and moveable structures — s.1(3)(a) OLA 1957 includes "any fixed or moveable structure, including any vessel, vehicle or aircraft"
• Ladders, scaffolding, lifts, and gangways

Occupiers' Liability Act 1957 — Duty to Visitors

Who is a Visitor?

A visitor is someone who enters the premises with the express or implied permission of the occupier. This includes:

• Express invitees — those specifically invited (e.g. a dinner guest)
• Implied permission — those whose entry is customary or reasonably expected (e.g. a delivery person using the front path — Robson v Hallett [1967])
• Those entering under a contractual right (e.g. paying customers)
• Those entering under a legal right (e.g. police officers with a warrant, meter readers — s.2(6))
• A visitor who exceeds the scope of their permission becomes a trespasser — The Calgarth [1927] ("When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters")

The Common Duty of Care — s.2(2)

> "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."

Note: the duty is to make the visitor safe, not to make the premises safe. A warning or barrier may discharge the duty even though the hazard remains.

Special Categories

Children (s.2(3)(a)):

• The occupier must be prepared for children to be less careful than adults
• Allurements — objects that are particularly attractive or tempting to children may increase the duty
• Glasgow Corporation v Taylor [1922] — a child died after eating poisonous berries in a public park; the berries were an allurement and should have been fenced off or removed
• Jolley v Sutton LBC [2000] — a derelict boat left on council land attracted a 14-year-old boy who was injured when it fell on him while he was repairing it. The House of Lords held that it was foreseeable that children might meddle with the boat

Persons exercising a calling (s.2(3)(b)):

• The occupier may expect that persons entering in the exercise of their calling will guard against special risks ordinarily incident to it
• Roles v Nathan [1963] — two chimney sweeps died from carbon monoxide fumes while sealing a flue in a boiler room. The occupier was not liable — the sweeps should have appreciated the risk of fumes from a lit boiler (a risk ordinarily incident to their calling)
• This does not excuse the occupier from risks unrelated to the visitor's calling

Warnings — s.2(4)(a)

A warning does not automatically discharge the duty — it must be sufficient to enable the visitor to be reasonably safe:

• A general "danger" sign may be insufficient; the warning must identify the specific risk and enable the visitor to avoid it
• Rae v Mars [1990] — a warning of a deep pit immediately inside a dark doorway was insufficient to keep the visitor safe
• If the warning is adequate, the occupier may be discharged from liability even though the hazard remains

Independent Contractors — s.2(4)(b)

The occupier is not liable for damage caused by the negligence of an independent contractor if the occupier:

1. Acted reasonably in entrusting the work to the contractor

2. Took reasonable steps to satisfy themselves that the contractor was competent

3. Checked the work so far as reasonable (where it is possible for a layperson to do so)

• Haseldine v Daw [1941] — a lift was negligently repaired by an independent contractor; the building owner was not liable because they could not reasonably be expected to check specialist lift engineering work
• Woodward v Mayor of Hastings [1945] — a school was liable when a cleaner left an icy step — the occupier could easily have checked whether the step had been properly cleared

Exclusion of Liability — s.2(1)

The occupier may extend, restrict, modify, or exclude their duty by agreement or notice, subject to:

• The Unfair Contract Terms Act 1977, s.2(1) — liability for death or personal injury caused by negligence cannot be excluded
• s.2(2) UCTA — liability for other loss or damage can be excluded only if the term is reasonable
• The Consumer Rights Act 2015 provides further protection for consumers

Defences

Contributory negligence — under the Law Reform (Contributory Negligence) Act 1943, the claimant's damages may be reduced if they failed to take reasonable care for their own safety.

Volenti non fit injuria (consent) — s.2(5) OLA 1957: the duty does not impose an obligation on the occupier in respect of risks willingly accepted by the visitor. Knowledge of the risk alone is insufficient — the visitor must have freely and voluntarily accepted the risk.

Occupiers' Liability Act 1984 — Duty to Non-Visitors (Trespassers)

When Does the Duty Arise? — s.1(3)

The occupier owes a duty to a non-visitor (trespasser) if:

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

(b) The occupier knows or has reasonable grounds to believe that the non-visitor is in the vicinity of the danger or may come into the vicinity

(c) The risk is one against which, in all the circumstances, the occupier may reasonably be expected to offer some protection

All three conditions must be satisfied. If they are not, no duty arises.

• Donoghue v Folkestone Properties [2003] — the claimant dived from a harbour slipway at night in midwinter and was injured by a submerged object. The occupier had no reason to believe anyone would be trespassing in such dangerous conditions at that time — condition (b) was not satisfied
• Keown v Coventry Healthcare NHS Trust [2006] — an 11-year-old boy was injured climbing the exterior of a fire escape. The danger arose not from the state of the premises but from the child's own activity of climbing. The duty under OLA 1984 relates to dangers due to the state of the premises, not activities chosen by the trespasser

The Duty — s.1(4)

> "The duty is to take such care as is reasonable in all the circumstances of the case to see that the [non-visitor] does not suffer injury on the premises by reason of the danger concerned."

The standard is lower than under the 1957 Act — the occupier need only do what is reasonable, considering that the entrant is a trespasser.

Warnings — s.1(5)

The duty may be discharged by taking reasonable steps to give warning of the danger or to discourage persons from incurring the risk. A clear warning sign and/or a fence may suffice.

No Duty for Property Damage — s.1(8)

The 1984 Act covers personal injury only — there is no duty in respect of loss of or damage to the trespasser's property.

Exclusion

There is no express provision for excluding the duty under the 1984 Act, unlike s.2(1) of the 1957 Act. The general view is that the duty to trespassers cannot be excluded.

Volenti — s.1(6)

No duty is owed to a non-visitor who willingly accepted the risk — Ratcliff v McConnell [1999]: a college student climbed over a locked gate into a swimming pool at night and dived into the shallow end, suffering severe injuries. The risk was willingly accepted.

Comparison

Feature	OLA 1957 (Visitors)	OLA 1984 (Trespassers)
Standard	Common duty of care	Reasonable in the circumstances
Trigger	Visitor status (permission)	Three conditions in s.1(3)
Property damage	Covered	Not covered
Exclusion	Possible (subject to UCTA)	Not possible
Warnings	Must enable visitor to be safe	Must give warning or discourage

Evaluation

• The 1984 Act was a welcome reform, replacing the piecemeal common law duty to trespassers (British Railways Board v Herrington [1972])
• The distinction between visitors and trespassers can be difficult to draw — when does permission end?
• The duty to child trespassers may be seen as too demanding on occupiers (allurement doctrine) or, conversely, insufficient (children cannot appreciate risks)
• Should the 1984 Act cover property damage? Currently, a trespasser whose expensive bicycle is destroyed by a negligently maintained wall has no claim

Exam approach:

• First identify whether the claimant is a visitor (1957 Act) or trespasser (1984 Act)
• For visitors, apply s.2(2) and consider the special categories (children, callings)
• For trespassers, check all three conditions in s.1(3) before any duty arises
• Consider warnings, independent contractors, exclusion clauses, and defences