Tort: Occupier’s Liability

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
Visitor, guest, wedding, beach

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).

Trespassers
Trespasser, criminal, intruder

A trespasser is anyone who is not a visitor: Occupiers Liability Act 1984, s 1(1)(a).


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 him responsible for the state of the building structure. However, he 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
Child, children, little girl

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
Professional, workman, worker

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:

  1. They acted reasonably in trusting the work to the independent contractor; and
  2. 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. This is so even where those activities are not naturally described as ‘construction, maintenance or repair’: Gwilliam v West Hertfordshire Hospital NHS Trust [2003] QB 443.

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:

  1. The occupier is aware of the danger or has reasonable grounds to believe that it exists;
  2. 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
  3. ‘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. 

Fence, keep out, barrier

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). 

Time, big ben

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 Folkstone Properties [2003] QB 1008. 

Obvious risk, extreme sports

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.


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Occupiers Liability Quiz

Test yourself on the principles of occupier liability.

1 / 12

When will an occupier not be liable for dangers created by an independent contractor on their land?

2 / 12

What must the claimant who is a trespasser show to demonstrate that a duty is owed to them under the Occupiers Liability Act 1984? (Three answers)

3 / 12

What duty of care is owed by occupiers to their visitors?

4 / 12

Which of the following are 'occupiers' of land? (Two answers)

5 / 12

Are occupiers liable to visitors for harms arising from activities performed on their land?

6 / 12

What kinds of losses are recoverable under the Occupiers Liability Act 1984?

7 / 12

If a risk arising from land is obvious, what must the occupier do to warn visitors to discharge their duty of care under the Occupiers Liability act 1957?

8 / 12

An occupier of land has put up a sign warning pedestrians that a bridge is dangerous and they should not use it. A visitor reads the sign but crosses the bridge because it is his only route home, and is injured as a result. Is the occupier liable under the Occupiers Liability Act 1957?

9 / 12

The claimant is a trespasser on the defendant's land. They encounter an unlocked door with a sign saying 'keep out', which they read. They open the door and walk through, where they injure themselves by falling in a pit. Assuming that a duty of care is owed under the Occupiers Liability Act 1984, has the defendant fulfilled that duty by placing a 'keep out' sign on the door?

10 / 12

For the purposes of occupier's liability, who is a visitor?

11 / 12

What standard of care is owed to a trespasser under the Occupiers Liability Act 1984?

12 / 12

How does the occupier's duty change, if at all, if the visitor is a child?

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