TORT LAW

OCCUPIERS LIABILITY
NOTES@

Fortunately, much of the law on occupiers’ liability has a statutory basis. Unfortunately,
a necessary body of case law has developed to clarify the content of those statutes.

Exam Consideration: Note the correct placement of the apostrophe in “occupiers’” - it

might help to remember that the law isn’t dealing with one occupier, but many.

Occupiers’ Liability Act 1957

The Occupiers’ Liability Act 1957 dictates the duty that an occupier owes to lawful
visitors (as per s.1 (1)). All others are covered by the Occupiers’ Liability Act 1984
(discussed below.)

There are, thus, three key definitions which are relevant to applying the Act. We must
define who an occupier is, what their premises are, and who a lawful visitor is. This is
logically intuitive - cases involving occupiers’ liability will always require a claimant, a
defendant and location for the incident to have occurred.

It should be noted that OLA 1957 covers both personal injury and damage to property
(whereas OLA 1984 only imposes a duty with regard to personal injury).

Defining ‘Occupier’

The Act does not provide a definition for ‘occupier’, since the term is discussed widely in
the applicable common law. An occupier is simply a party who exercises an element of
control over premises, as per Wheat v E Lacon & Co Ltd.

Case in Focus: Wheat v E Lacon & Co Ltd (1966)

The claimant was on holiday, and stayed in a pub with attached guest rooms. The pub
was owned by the defendant company, which had hired a manager-in-residence to
manage both the guest rooms and the front-of-house. In order to access his room, the
claimant had to climb a steep, narrow staircase. The handrail stopped two steps short of
the bottom, and there was no bulb in the light fitting, leaving it dark. The claimant was
fatally injured whilst descending these stairs.

The claimant’s estate brought an action under the OLA 1957 against both the owning
company and the manager, as dual occupiers. The primary question of law was then
who was the proper party to the suit. The court held that both the owners and the
manager were occupiers, applying a test of control. The owners retained both property
rights, and the right to repair the premises as they saw fit, and hence had sufficient
control over the premises to be an occupier. The manager was too an occupier - he was
licensed to deal with the day-to-day running of the premises, and additionally physically
lived on the first floor of the pub. Whilst both were occupiers, only the manager was held
liable - the lack of lighting was held to be the key breach of duty, and that was the
manager’s purview. Lord Denning provides a concise rundown of who occupiers are,
and the nature of their general duty:

“wherever a person has a sufficient degree of control over premises that he ought to
realise that any failure on his part to use care may result in injury to a person coming
lawfully there, then he is an ‘occupier’ and is under a duty to his ‘visitor’ to use
reasonable care. In order to be an ‘occupier’ it is not necessary for a person to have
entire control over the premises. He need not have exclusive occupation. He may share
the control with others. Two or more may be ‘occupiers’. And each is under a duty to
use care towards persons coming lawfully on to the premises, dependent on his degree
of control.”

Lord Denning, at 577.

Not only does Denning provide a definition for ‘occupier’, but he also describes it in
terms which are intentionally similar to those of the neighbor principle of Donoghue v
Stevenson. Thus, the basis for occupiers’ liability can be considered the same as the
basis for general negligence - if you control a situation, you should do so in a way which
promotes the safety of those who might be injured if care was not taken. Notably, an
‘occupier’ does not have to actually occupy (as in ‘live at’) premises in order to come
under the Act. This is sensible - there are vast swathes of land in the UK which are
controlled by various parties, even if they don’t live on the property personally. Because
of the occupier principle, the law can be thought of as emphasising the practical reality
of a situation.

Whilst the occupier definition doesn’t depend on legal ownership, legal owners will
usually be regarded as having a degree of control over the property they own, as will
thus be regarded as occupiers, as in Harris v Birkenhead (1976).

The defendant council had served a compulsory purchase on a rented property, and the
current tenant moved out. They gave the owner/landlord 14 days’ notice of their
intention to take possession, but didn’t actually take physical possession of the property
(i.e. send an agent to it) once the 14 days had passed. The claimant, a four-year-old
girl, wandered off from a nearby play park with a friend. The house was unsecured
(unknown vandals had broken in), and the claimant entered the open front door, went
upstairs, and was seriously injured when she fell from a window.

The council was held liable - although they had not physically occupied the property,
they had legal ownership at the point the accident occurred. This legal control was
enough to establish occupier status.

Defining ‘Premises’

Whilst defining ‘premises’ will be simply in many scenarios, there exist several
peripheral issues which should be noted. s.1 (3) (a) of the Act notes that it is not just
land and buildings which might be considered premises, but vessels, vehicles and
aircraft.

Of particular note is that temporary and mobile structures are included under this
definition, such as scaffolding and ladders. See Wheeler v Copas (1981). The claimant
was a builder working on the defendant’s property when he used a ladder which the
defendant had lent to him. The ladder was too flimsy, and broke, injuring the claimant.
The court noted that the ladder came under the definition of premises, but that the
defendant could not be considered the occupier of the ladder since he had no control of
it at the time of the accident (the courts noted that the claimant was equally to blame for
using a ladder he should have known was insufficient). Nevertheless, under employer’s
liability the claim succeeded (but damages were reduced by 50% for contributory
negligence.)

Defining ‘Lawful Visitors’

The law splits lawful visitors into three categories - those who have express permission
to visit, those who have implied permission to visit, and those with a lawful right to visit.

The express permission category, on the whole, is relatively straightforward. It refers to

those who are expressly invited onto premises by some means (so, a written invite or a
simple beckoning by the occupier, for example.) Occupiers can limit the extent of an
express invite in terms of place, behavior or time. So someone who is invited to a dinner
party can attend with express permission, but they cannot refuse to leave at the end,
smash the host’s windows and then climb up onto the roof. Someone who deviates from
such instructions will be considered a trespasser, and thus will lose the protection of
OLA 1957 (but will thus be covered by OLA 1984).
This principle can be seen in The Carlgarth (1927). The claimant’s ship filled with water
and sank whilst travelling down the defendant’s channel of water. Whilst the ship was
invited to use the channel, it had navigated in an irregular manner (causing the sinking.)
Thus, because the ship was acting in a manner other than that which it had permission
to, the occupier of the channel could not be held liable. In the now-famous words of
Scrutton LJ at 97: “When you invite a person into your house to use the staircase, you
do not invite him to slide down the bannisters, you invite him to use the staircase in the
ordinary way in which it is used.”

The implied permission category includes those who lack express permission but whose
presence is assumed to be unobjectionable to the occupier. This is a practical measure
- each new resident in a road doesn’t write to their postman telling him he can deliver
the mail. Similarly, it is one of the needs of society that people can be found and spoken
to at their home address. This permission can also be limited, firstly, expressly (so,
telling a delivery person to use a particular entrance or path). Secondly, there is a
natural limitation which will apply for many forms of implied permission - so a postman
will likely be considered to have implied permission to access the front of a property, but
this permission will not extend to the postman going round the back of the property and
playing on the owner’s swing-set for an hour (if he does, talk to your local post office.)
Again, a visitor who exceeds the limitations of implied permission will be considered a
trespasser.

Implied permission can come into being if an occupier knows that their land is being
used by trespassers, but does nothing to prevent their activities, as in Lowery v Walker
(1911). A path running across the defendant’s field was used as a shortcut by several
people to get to a nearby railway station. The defendant knew about this, and objected
to it, but had not taken any steps to stop it from occurring. One day, he put a wild horse
in the field, which attacked and injured the claimant. The courts held that since the
defendant knew about the trespassers, but did nothing about it, this amounted to
implied permission. The defendant was, thus, held liable.

The lawful right of entry category encompasses those who maintain a right to enter land
or property regardless of the occupier’s wishes, under s.2 (6) of the Act.

This includes police officers (with a warrant or chasing a fugitive), firefighters attending
a fire, and public utilities employees attending to read meters etc. The root of such
permission can usually be found in the relevant statute (such as the Police and Criminal
Evidence Act 1984).

Those who enter property in accordance with a valid contract are held to be a lawful
visitor under the act, and notably, if the relevant contract provides for a higher standard
of care it will apply. So if a landowner hires builders, and agrees to being held strictly
liable for any accidents that occur, then that duty of care will apply (in addition to the
lesser one contained in the 1957 Act).

So as long as a visitor is a member of one of these categories, they will be protected by

OLA 1957.

Occupiers’ Duty of Care

The relevant duty of care can be found in s.2 (2) of OLA 1957. An occupier must “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.”

Whilst this is relatively similar to the negligence duty of care, the ability of the occupier
to modify the exact nature of the duty should be noted. So an occupier who invites
people into his house, but not the garden, has to ensure the reasonable safety for their
visitors in the house but holds no such duty (at least under OLA 1957) with regard to
their garden.

A distinction should also be noted that the duty is based around preventing injury in
visitors, rather than ensuring that premises are objectively safe. Thus, whilst a deep pit
presents an objective hazard, the occupiers duty is based on ensuring nobody is injured
by it (for example, by putting up warning signs or fencing it off.)

Special Visitors

The duty contained in s.2 (2) is the commonly applicable one. However, OLA 1957
provides for two special sorts of visitors: children and skilled visitors, for whom the
applicable duty of care is higher and lower respectively.

s.2(3)(a) warns that children can be expected to be less careful than adults, and, by
implication, that a greater level of care might be required to keep them from harm. The
common law has sought to strike a balance between the responsibilities of parents and
occupiers to prevent harm from befalling children. In Phipps v Rochester Corporation
(1955) a 5-year-old was walking, with his 7-year-old sister, across some land owned by
the defendant, which was under development. The 5-year-old fell into a trench dug for
such purposes, and was injured. The court ruled that the occupying council was not
liable - just as an assumption could be made that children would be less careful, an
equal assumption could be made that young children would not be allowed to wander
unsupervised onto unsafe land. Thus, to avoid shifting parental responsibility to
landowners, the claim was denied.
However, if land holds either concealed danger, or something which might allure
children to it, then a duty will likely be held to exist, as in Glasgow Corporation v Taylor
(1922). A seven-year-old died after eating poisonous berries which were in a public
park. Whilst the plants were faced off, there were no notices warning that the berries
were poisonous. The court held that the defendant council was liable. The plants did not
present an obvious danger, and so the council should have taken sufficient measures to
draw attention to the concealed danger. It was also noted that an occupier who is aware
that something on his land might act as an allurement to children (for instance, berries
that look edible) should take greater care to prevent that risk from manifesting.

This ruling fits into the theory of parental responsibility - parents cannot be expected to
protect against a danger they cannot see - and this goes doubly where such dangers
are not adequately signposted.

Of course, not all minors are equal - older children are less susceptible to harm than
younger children. Thus, the relevant level of care will depend on the nature of the risk
and the age and awareness of the child involved. This principle can be seen at work in
Titchener v British Railways Board (1983). The claimant, a 15-year-old girl, was walking
with her 16-year-old boyfriend. They took a shortcut across a railway line and were both
struck by a train, severely injuring the claimant and killing her boyfriend. They had
accessed the railway through a gap in the fence, and there was a pathway worn up to
the gap, suggesting that this was a point of repeated trespass. It was established that
the defendant either knew of the gap, or would have known of it upon reasonable
inspection. The defendant denied liability on the basis that it did not owe a duty of care
towards a 15-year-old, who would have been aware of the risks they were running. This
argument was successful - indeed upon cross-examination the claimant noted her
knowledge of the risk and her choice to take the chance.

It can, thus, be concluded that the duty of care owed to minors scales with age - an
occupier will owe a greater duty of care towards younger children, and this will slowly
diminish over time, until the child becomes an adult (indeed, once a child reaches
around 16, there aren’t many risks that they’ll be expected to react to differently than an
adult.)

At the opposite end of the spectrum lie skilled visitors, as noted in s.2 (3) (b). Occupiers
can assume that such visitors will have a greater awareness of risks and the relevant
precautions that they should take - although importantly, this increased competence will
only apply to risks whose nature matches the skill of the visitor. So an electrician will be
owed a lesser duty of care by an occupier - but only in relation to risks of electric shock
and similar.

This can be seen in General Cleaning Contractors Ltd v Christmas (1953). The claimant
was cleaning windows on the defendant’s building. He had climbed up onto a wall, and
was using an open sash window for support. The top half of the window closed on his
fingers, he lost his balance and fell, injuring himself. His action against the occupiers
failed - it was held that as a professional, he should have known how to mitigate the risk
he was running.

Exam Consideration: General Cleaning Contractors Ltd v Christmas also appears as a

case in employers’ liability. It should be noted that the claimant’s suit against his
employers succeeded, whilst his suit against the building’s occupiers failed.

It should be noted that just because a risk is of a nature which might be encountered by
a skilled visitor, that does not dispel the entirety of the occupier’s duty of care - an
occupier must still act reasonably. This is sensible - an occupier can’t invite an
electrician to their property and then fail to tell them that the first light switch they use
will likely kill them. Furthermore, an occupier will still have a duty of care towards skilled
visitors if they are harmed by a risk, despite utilising their skill. Again, this is a sensible
formulation of the law - there are certain risks which remain dangerous despite the
application of skill. Consider a zoo-owner who negligently allows a grizzly bear to get
loose. Just because the zoo-keepers are skilled at dealing with animals does not mean
that the zoo-keeper can ignore liability for any injuries they might incur whilst corralling
the animal.

This principle applies most often in the case of injuries incurred by firefighters, as in
Salmon v Seafarer Restaurants Ltd (1983). A fireman was injured in an explosion whilst
attending a chip shop fire. The defendant occupier argued that, with regard to a fireman
attending a fire, his duty only existed to protect him against a special or additional risk
above those he might ordinarily encounter as a result of his job. This argument was
rejected - whilst the firefighter’s skills were relevant to determining the applicable duty of
care, where it was foreseeable that he might be injured through the exercise of those
skills, the occupier would remain liable. The claim therefore succeeded.

Warnings

As noted at the top of this section, the duty of care is based on protecting visitors, rather
than removing hazards altogether. This means that the humble warning sign forms a
key element of fulfilling the duty. However, the addition of a warning to a hazard will not
absolve an occupier of liability. To return to the escaped bear example: a zoo owner
telling his keepers ‘look out, you have to capture a bear!’ will not let him escape liability
for bear-related injuries. As per s.2 (4) (a), warnings only fulfil the occupier’s duty of
care if they enable a visitor to be reasonably safe.

Exam Consideration: It should be noted that s.2 (4) (a) refers to all warnings, rather than
warning signs specifically. This means that an occupier could potentially give an
effective verbal warning instead of posting a sign. Of course, this is impractical - since
most hazards exist 24/7, erecting a sign is a far more practical solution than providing
verbal warnings to every single visitor. Nevertheless, do not make the mistake of
assuming that the absence of signage is proof of a negligent occupier - the key is that
the warning is communicated, not the means of communication.

Since signs form the primary method of warning visitors, various principles have built up
around their implementation. In general, a specific hazard will require a specific warning
- so if the hazard is an electric fence, then an appropriate warning would be: ‘Caution:
Electric Fence’, rather than just ‘Caution’. Visitors shouldn’t have to play ‘guess the
hazard’ whenever they see a warning. Hidden dangers will require greater attention to
be drawn to them (since by definition a visitor cannot be relied upon to avoid them of
their own volition.) Conversely, very obvious risks require no warning at all, as in
Staples v West Dorset District Council [1995] 93 LGR 536. The claimant was badly
injured when, crouched on a harbour wall to take a photo, he slipped and fell off of the
wall, some 20 feet high. The harbour wall was covered in algae, and thus very slippery
when wet. He brought an action against the defendant council, arguing that no warning
signs were present regarding the danger of slipping. The claim failed - the dangers of
slipping on algae on a harbour wall were obvious, and the claimant was aware of them.
The defendant thus had no duty to warn.

Exam Consideration: Staples demonstrates how claimants will be expected to use their
own common sense to self-warn of a hazard. All relevant circumstances should be
considered when dealing with OWA 1957 problem questions - so whilst you could argue
that the slip hazard was unobvious, it would be difficult to argue that an adult wouldn’t
recognise that walls next to steep cliffs shouldn’t be mounted.

Staple also provides an example of how the effects of warning signs can be enhanced
when used in combination with other safety measures - if there was a sheer drop at the
cliff edge, without a warning sign or wall, the claimant’s argument may well have
succeeded. It should also be noted that the effectiveness of a warning will depend on
the concerned visitor - warning signs will do little to deter younger children, for example
(although they do enhance their parents’ ability to keep them safe.)

Independent Contractors

As noted in the chapter on vicarious liability, it is usually not possible to attribute the
actions of an independent contractor to their employer. However, s.2 (4) (b) provides a
list of the situations in which an occupier will be held liable for a harm caused by an
independent contractor. Firstly, where in was unreasonable to entrust the work to an
independent contractor in the first place. This is to prevent an occupier from hiring
independent contractors to deal with all aspects of their premises in order to avoid
liability. Secondly, where the occupier failed to take reasonable steps to ensure the
independent contractor was competent - for example, a landlord who hires an
independent engineer to do gas safety checks will be expected to check that he is
qualified. Thirdly, where the occupier has failed to take reasonable steps to check the
work of an independent contractor. So if a school hires an independent contractor to
clear ice off of steps, they will be expected to check that it has been done (as in
Woodward v Mayor of Hastings (1945). Conversely, an occupier will not be expected to
check overly technical work, as long as they have taken the proactive measure of
ensuring their contractor is reputable (as in Haseldine v Daw & Son Ltd (1941).

Defences

There are three commonly encountered defences when dealing with OLA 1957. The
first is the defence of consent, as per s.2 (5). Visitors will often be in situations in which
they are aware of a risk, but choose to continue anyway - so a visitor who is aware of a
wild horse, but decides to continue into its field regardless, may well be held to have
consented to the risk.

Secondly, there will often be scenarios in which a visitor has acted poorly around a risk,
and thus the defence of contributory negligence can be raised. So visitors who fool
around near a cliff edge and fall off will likely be held to have contributed to their injuries.

Thirdly, exclusion clauses (a matter of contract law) will often be employed by occupiers
as a means to avoid liability.

Occupiers Liability Act 1984

OLA 1984 provides the basis for the duty that an occupier has towards those who are
not lawful visitors. This includes trespassers - those who lack permission in the first
place, as well as those who have overstepped the bounds of their permission. OLA
1984 also covers those who lawfully exercise a private right of way (this is a property
law concept), and those who have their access covered by right to roam legislation.

Much of the content of OLA 1984 matches that of OLA 1957. The primary difference
between the two is the conditions which must be met before a duty of care comes into
existence.

Defining ‘Trespasser’

The exact definition for trespasser can be found in Robert Addie & Sons (Collieries) Ltd
v Dumbreck [1929] AC 358 (facts unimportant, since the judgement is based on out-of-
date law): “someone who goes on the land without invitation of any sort and whose
presence is either unknown to the proprietor or, if known, is practically objected to.”

The Duty of Care towards Trespassers

The relevant duty of care can be found in s.1 (3) of the Act. It describes three criteria
which must be met before a duty arises. Firstly, the occupier must be aware of the
hazard, or have reasonable grounds to believe it exists. Notably, this is a subjective
standard - so whether this condition is met will depend on an occupier’s actual
knowledge of either a hazard or the symptoms of a hazard.

Secondly, the occupier must know or have reasonable grounds to believe that a
trespasser is in the vicinity of that danger. Again, this is also a subjective standard,
based on the occupier’s knowledge. The ‘reasonable grounds’ element is important
here - an occupier does not need to be looking out their window at the time a trespasser
is injured by a hazard. Instead, this condition is more about an occupier being aware of
the phenomenon of trespassers on their land. Examples of such grounds include an
occupier’s knowledge that people often use their field as a shortcut, or that children
often use a broken fence as a way to access a building site managed by the occupier.

Thirdly, the relevant risk must be one which the occupier would reasonably be expected
to protect against. This is not subjective, but objective - the courts will ask what the
reasonable occupier would have done. This will depend a lot on the nature of the risk - a
hidden and serious risk will require greater action than an obvious and mild one -
contrast a minefield with some nettles. We’d expect a reasonable occupier to go to
great lengths to protect trespassers from the former, but not the latter. The application
of the duty of care can be seen in Young v Kent County Council.

Case in Focus: Young v Kent County Council (2005)

The claimant, a 12-year-old boy, climbed up onto the roof of a school (via a ventilation
flu) to fetch a ball. He then fell through a skylight and was injured. The defendant
occupier was aware that the skylight was brittle, and that it represented a hazard. They
were also aware that the roof was used as a meeting place by children - the fact that the
roof could be accessed via the ventilation flu by children was even noted in a HSE
report. Finally, the brittle skylight was a hazard which could have easily been protected
against. The claim therefore succeeded, albeit with the claimant’s damages reduced by
50% on the basis of contributory negligence.

Exam Consideration: Be wary of being too harsh on trespassers when dealing with
problem questions - yes, they probably shouldn’t be on the land when they’re injured,
but the punishment for what is ultimately a pretty tame crime shouldn’t be death or injury
- especially considering that the duty is only imposed when an occupier knows they are
exposing trespassers to a hazard.

As with OLA 1957, greater lengths will be needed to protect children than adults - so
pay special attention when it is known that children are trespassing. Nevertheless, the
courts will rarely shy away from acknowledging the fact that there comes a point at
which children should be aware of a risk they are taking. An example of this can be
seen in Keown v Coventry Healthcare NHS Trust (2006). The claimant, an 11-year-old
boy, was seriously injured when he fell from a fire escape that he was climbing on. The
claimant admitted at trial that he knew that his actions were dangerous, and that he
should not have been climbing on the fire escape. The claim therefore failed. Notably,
the courts also held that the fire escape was not a hazard (as per the first requirement
to find a duty of care) - the fire escape was perfectly safe, it was the actions of the
claimant which rendered it hazardous.

The same principle that was employed in the analysis of the hazard in Keown can also
be seen to operate in Thomlinson v Congleton Borough Council (2004). The defendant
occupier owned a large country park - an old sand quarry which had to be turned into a
lake. The lake was dangerous for swimmers, and so notices were posted around the
lake, and rangers were deployed to, amongst other duties, prevent swimming. The
claimant dove into shallow water and broke his neck. The claim failed. The claimant was
a self-acknowledged trespasser due to his choice of activity. The injuries were not due
to a hazard, but instead due to the claimant’s own freely taken actions. The bench also
noted, from a policy perspective, that the relevant preventative measure would have
been to close the lake altogether - something which would have led to the closure of a
number of similar locations around the country.

It can, thus, be seen that the courts will not define something as a hazard on the basis
of it being involved in an injury, but instead will ask if it is of a generally hazardous
nature. This will particularly be the case when injury is caused by an action taken by a
fully autonomous claimant.

OCCUPIERS LIABILITY
HAND NOTE-2

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 occupier’s 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'.

Different levels of protection are expected under the two pieces of legislation with a
higher level of protection afforded 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) Case summary

Physical occupation is not a requirement:

Harris v Birkenhead Corp (1976) 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 fixed 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.
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
film 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 meters.

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) Case summary

Repeated trespass alone insufficient:

Edwards’s v Railway Executive (1952) 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) 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) Case summary

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) Case summary

Persons on the land exercising a private right of way:

Holden v White (1987) 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) Case summary

Jolley v Sutton (2000) Case summary

Glasgow Corporation v Taylor (1922) Case summary

Phipps v Rochester Corporation (1955) Case summary

Simkiss v Rohndda Borough Council (1983)

Bourne Leisure v Marsdon (2009) 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) Case summary

Salmon v Seafarer Restaurant (1983) Case summary

Ogwo v Taylor (1987) 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) 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) Case summary

There is no duty to warn against obvious risks:

Darby v National Trust (2001) Case summary

Cotton v Derbyshire Dales District Council (1994) Case summary

Staples v West Dorset District Council (1995) 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) case summary

Gwilliam v West Hertfordshire Hospitals NHS Trust (2003) case summary

Defences applicable to Occupiers Liability Act 1957

Volenti non fit 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) 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 afforded to those breaking into the premises
with criminal intent see Revill v Newbery (1996) Case summary. Whilst it may at first
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) Case summary overruling Addie v. Dumbreck (1929) 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
offered. Hence the fact that death and personal injury are the only protected forms of
damage and 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 offer 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) 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 suffer injury on the premises
by reason of the danger concerned.

Revill v Newbery (1996) Case summary

Ratcliff v McConnell (1997) 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) Case summary

Defences

Volenti non fit 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 afforded to trespassers.