Occupier’s Liability
The Application of Occupier’s Liability
Who is an Occupier?
According to the court in Wheat v E Lacon [1966] AC 552 an occupier is:
Any person with the legal right to possess and control the land. This will normally be the owner, but may be someone else such as a tenant.
Any person with sufficient control over the land in practice that they reasonably ought to realise lack of care might injure a visitor.
The occupier does not need to be physically present or exclusively occupy the land, and there can be multiple occupiers.
Who Can Claim?
Two types of people can claim under occupier’s liability. The rules applicable to the claim depend on which category the claimant falls in:
Visitors
A visitor is any person the occupier invites onto the land or gives permission to be on the land, so long as they have not exceeded the terms of their permission: Occupiers Liability Act 1957, s 1(2).
Liability to Visitors
What Duty is Owed to Visitors?
The occupier owes all visitors a ‘common duty of care’. This 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.’ Occupiers Liability Act 1957, s 2(2).
The Scope of the Duty
The nature of the occupier’s occupation and the extent of their control may impact the content of their duty. For example, it might affect what aspects of the land they are responsible for:
Shtern v Cummings [2014] UKPC 18: in this case, the fact that the defendant owned the land on which a hotel stood made her responsible for the state of the land and external building structure. However, she was not responsible for the state of a refrigerator within the hotel, which was managed by another company.
There is mixed judicial opinion on whether the occupier’s duty applies only to dangers arising from the ‘state of the premises’. This is to be contrasted with dangers arising from activities which the visitor or third-parties perform on the land.
The Court of Appeal in Ogwo v Taylor [1988] AC 431 stated (obiter) that the 1957 Act would not apply to activities on the land, such as starting a fire: these acts would fall under the ordinary rules of negligence.
The High Court in Cunningham v Reading FC [1992] PIQR P141 held that the 1957 Act did apply to the situation where third parties had torn up concrete off the premises and thrown them at others (an activity).
Special Types of Claimant
The common duty of care is modified where two types of special claimant are involved: children and professionals.
Children
Occupiers must be prepared for children to take less care than adults: Occupiers Liability Act 1957, s 2(3)(a). However, the occupier is entitled to assumed that parents will not leave their children unattended unless there is evidence to the contrary: Phipps v Rochester Corp [1955] 1 QB 450; Simkiss v Rhondda BC (1983) 81 LG 460.
Professionals
Occupiers may expect professionals exercising their professional skills ‘will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do-so’: s 2(3)(b). Take care to distinguish between risks which are ordinarily incidental to a particular calling and those which merely make the environment unsafe but are irrelevant to the job: Woollins v British Celanese [1966] 1 KIR 438.
Warnings
It is possible for the occupier to satisfy the common duty of care by warning visitors of the danger. For example, they might use a warning sign. Any warning must be ‘enough to enable the visitor to be reasonably safe’: Occupiers Liability Act 1957, s 2(4). This means that:
- If the visitor has no reasonable way of avoiding the danger even though he knows about it, the warning will not be sufficient: Roles v Nathan [1963] 1 WLR 1117;
- There is no need to warn people of obvious risks, since they do not need a warning to keep themselves safe: Darby v National Trust [2001] EWCA Civ 189.
Liability for the Acts of Independent Contractors
Where the danger was caused by the ‘faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier’, the occupier is not liable if:
- They acted reasonably in trusting the work to the independent contractor; and
- They took reasonable steps to satisfy themselves that the independent contractor was competent and had performed the work properly: Occupiers Liability Act s 2(4)(b).
Section 2(4)(b) has been applied to a wide range of activities by independent contractors employed to be on the land. Even if what the contractor is doing does not constitute ‘construction, maintenance or repair’ the occupier will still owe visitors a duty of care to keep them safe from any changes made by the contractor to the state of the premises: Gwilliam v West Hertfordshire Hospital NHS Trust [2003] QB 443. In those cases, the courts follow a similar analysis to s 2(4)(b) in determining whether the occupier has discharged their duty of care.
This provision is more likely to apply where the job involves specialist expertise and skill: Green v Fibreglass [1958] 2 QB 245. It is less likely to apply where the job is mundane and could be done by anyone: Woodward v Mayor of Hastings [1945] KB 174.
Liability to Trespassers
When is a Duty Owed to Trespassers?
Unlike visitors, a duty is not automatically owed to trespassers. A duty is only owed to a trespasser under the Occupiers Liability Act 1984 if:
- The occupier is aware of the danger or has reasonable grounds to believe that it exists;
- The occupier ‘knows or has reasonable grounds to believe’ that the trespasser ‘is in the vicinity of the danger concerned or that he may come into the vicinity of the danger’ (lawfully or otherwise); and
- ‘The risk is one against which, in all the circumstances of the case, the occupier ‘may reasonably be expected to offer the other some protection’: s 1(3).
An occupier only has ‘reasonable grounds to believe’ the danger exists or that the trespasser may come into the vicinity of the danger if he has ‘actual knowledge’ or wilful blindness to the existence of the relevant facts: Swain v Puri [1996] PIQR P442.
The fact that the occupier has taken steps to prevent trespassers entering the premises is not on its own evidence that the occupier knows the trespassers are or may be in the vicinity: White v City of St Albans (Court of Appeal, 2 March 1990).
If the occupier believes that trespassers only come at a particular time, they are not to be taken to know that trespassers may come at another time: Donoghue v Folkestone Properties [2003] QB 1008.
If a risk is obvious, it is less likely to be the kind of risk which the occupier may reasonably be expected to offer the trespasser some protection: Tomlinson v Congleton BC [2004] 1 AC 46.
‘State of the Premises’ & ‘Activities’
There is mixed judicial opinion on whether the occupier’s duty applies only to dangers arising from the ‘state of the premises’. This is to be contrasted with dangers arising from activities which the visitor or third-parties perform on the land.
The Court of Appeal in Revill v Newbery [1996] QB 567 held that the 1984 Act only governs the duty of an occupier as an occupier, and so does not govern his activities on the land.
Lords Hoffman and Hobhouse in Tomlinson v Congleton BC [2004] 1 AC 46 stated (obiter) that the Act also extends to dangerous activities the occupier permitted.
What is the Standard of Care?
The duty of care owed by occupiers to trespassers is a duty to ‘take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned’: Occupiers Liability Act 1984, s 1(4).
Warnings
It is possible to discharge the duty of care by ‘taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk’: Occupiers Liability Act 1984, s 1(5).
For a warning to be valid it must mention that there is a danger or explain the existence of the risky state of the premises, and not merely tell people to refrain from entering the premises or a particular part of it: Westwood v Post Office [1974] 1 AC 1.
What Types of Damage are Covered?
The duty owed to trespassers is merely to prevent ‘injury’, defined as personal injury or death: s 1(9). Economic loss and property damage is therefore not recoverable.
