OCCUPIER‟S LIABILITY

An occupier of premises may be liable in tort to a C who, whilst on those premises, suffers
personal injury or property damage because the premises are in a defective or dangerous condition

As in a common law negligence action, the C must prove the existence of a duty of care, breach of
that duty, causation, and that the loss suffered is not too remote  therefore thought of simply as
an aspect of the tort of negligence.

However, an important difference is that in this area of the law the question of whether or not a D
owes a duty of care, and the question of the standard of care required of him or her are answered by
reference to two statutes, namely the Occupiers‘ Liability Act 1957 and the Occupiers‘ Liability Act
1984.

1957 Act: 1984 Act:

regulates the duties owed by an applies to ―others‖ who enter premises –

occupier to ―lawful visitors‖ to his or usually trespassers.
her premises,
 The Old Law

i. Contractual entrants ii. Invitees

persons who entered premises in persons who entered premises to

accordance with the terms of a contract pursue some ―common interest‖ with
made with the occupier. Example: the occupier. Example: customers
guests staying in a hotel. entering the occupier‘s shop.

Standard of care: The occupier had a Standard of care: The occupier was
duty to see that the premises were as obliged to use reasonable care to
safe as reasonable care and skill could protect the invitee from unusual
make them for the purposes dangers of which he or she knew or
contemplated by the contract- highest ought to have known
standard of care owed to contractual
entrants – Indermaur v Dames [1966]

iii. Licensees iv.Trespassers

Persons entering without the

persons who cannot be said to be pursuing
permission of the occupier.
any “common interest” with the occupier,
but the occupier had simply given his or Standard of care: The lowest standard of
her permission (express or implied) for the care was owed to trespassers. The only
entrant to be on the premises. Example: duty which an occupier had was a duty to
Friends invited to dinner by an occupier. refrain from any deliberate act intended to
Standard of care: the occupier merely had a cause bodily harm to the trespasser or
duty to warn the licensee about any trap or done with reckless disregard for the
concealed danger on the premises of which he presence of the trespasser
or she had actual knowledge.
- Robert Addie and Sons (Collieries) v
Dumbreck [1929]
 The need to revise the old rules prompted the government to appoint a Law Reform Committee, whose
report was published in 1954. The Committee recommended that the fine distinctions under the old law
should be abolished, in favour of a uniform standard of care owed to all lawful visitors to premises.

The committee‘s recommendations were given legal force in the Occupiers‟ Liability Act
1957

However, the tough attitude towards trespasser was maintained, and it was not until the Occupiers‟
Liability Act 1984 that unlawful entrants were given statutory protection.

Sec 1(1) of the OLA 1957 and 1984: rules in the The Acts are concerned w/ liability to people
Act have effect ‗in place of the rules of the
physically on the premises
common law‘

OCCUPIER’S LIABILITY ACT 1957

The 1957 Act abolishes the common-law distinction between different types of lawful visitors and
substitutes a single category of ―lawful visitors‖.
Therefore, under the Occupiers‘ Liability Act 1957, an occupier owes a single duty to all lawful
visitors, irrespective of their purpose in entering the premises

S.2(1): “An occupier of premises owes the same duty, the „common duty of care‟, to all his
visitors …”
 The Scope of the 1957 Act

(1) The Act covers:

- personal injury caused to a visitor and damage to his or her property
- damage to property lawfully on the premises, even where that property does not belong
to a visitor.
- Consequential economic loss is also recoverable - AMF International Ltd v Magnet
Bowling Ltd

However, it does not apply to property which is outside the boundaries of the premises.

(2) The Act allows an occupier to limit his or her liability to visitors either by displaying a notice
on the premises, or, where visitors enter under a contract, by including a term in that contract
which sets the standard of care he or she owes.

(3) The Act is thought to apply only to the “occupancy

duty”

The old common law distinguished between:

- situations where the C suffered injury as a - situations where the C‘s loss was caused
result of some defect in, or dangerous object by some activity carried out on the premises
on, the premises – –
governed by the special rules of occupiers‘ governed only by the ordinary rules of
liability, which laid down the “occupancy negligence, which laid down the “activity
duty”  arose where the claimant‟s loss duty”.
could be said to result from the state of
the premises.
 It is unclear whether this distinction has survived the 1957 Act, however most academic commentary
suggests that the modern tendency seems to be that the 1957 Act applies only to the “occupancy duty‖ i.e.
it covers only those situations where the C‘s loss is due to the defective or dangerous state of the premises -
. - Ferguson v Welsh [1987] approved in Fairchild v Glenhaven Funeral Services [2000]
)

Ogwo v Taylor [1988]:

a fireman claimed for steam injuries he suffered as he was fighting a fire in a confined space at the
defendant‘s premises.
The occupier had put the fireman at risk by carelessly creating a danger on his premises and on this
basis the fireman succeeded in common law negligence, rather than occupiers‘ liability.

Additionally, the Act may also apply where an activity on premises gives
rise to a continuing source of danger (e.g. use of the premises for motor
racing

Cunningham v Reading Football Club

[1992]

State of the premises enabled other visitors to act in a way that injured
spectators at a football match. They ripped up lumps of concrete and
used them as projectiles.
Held: OLA did apply  even though the danger was not strictly due to
the state of the premises: it was due to a particular activity done on the
premises. At the same time, the state of the premises did enable the
activity
 IMPORTANT DEFINITIONS

Who Is An “Occupier”?

The term ―occupier‖ is not defined in either Act.

Sec 1(2): an ―occupier‖ is simply a person ―who would at common law be treated as an
occupier‖.

COMMON LAW:
courts have taken a broad approach, holding that a person will be an ―occupier‖ if he or she has
a sufficient degree of control over the state of the premises. A person need not have a legal
estate in land to be the ―occupier‖ of that land, nor need he or she have a right to exclusive
possession.

Wheat v E. Lacon & Co [1966]

The D, a brewery, owned a public house.

They allowed Mr and Mrs Richardson, to live in accommodation above the pub, not as tenants, but as
mere licensees.
The brewery had given Mrs Richardson permission to take in paying guests in part of the upstairs
accommodation, access to which was gained by an outside staircase.
The staircase was dangerous because its handrail did not go all the way to the bottom, and because it was
unlit.
One evening, P‘s husband, who was a paying guest, fell down the staircase and was fatally injured.
P sued the brewery under the 1957 Act, and the question arose whether the brewery were ―occupiers‖ of
the private part of the building.
 HOL held:
in the circumstances, the brewery had retained sufficient control over the upstairs part of the
premises to be regarded as occupiers as they had retained the right to access that part themselves. It
was held that Mr Richardson, his wife and the brewery were all ―occupiers‖ under the Act.

However, the standard of care required of each was defined by the extent to which
each had control over the premises.
On the facts, none of the parties had fallen below their respective standards of care as
the short handrail did not by itself make the staircase unreasonably hazardous, and
they were not responsible for a stranger having caused it to become unlit by removing
a light bulb.

Two important points established by the case:

where the owner of premises licenses others

to occupy those premises, but retains the right
to enter the premises, he or she remains an
there can be more than one ―occupier‖ for the purposes of the Act.
occupier of premises
However, where the owner grants a tenancy
conferring on others exclusive possession of
the premises, he or she cannot be regarded as
an occupier as he will normally have given
up control of the premises.
 Harris v Birkenhead Corporation
[1976]:

D was a local authority which had made a compulsory purchase order on a house.
It then served on the owner of the house, and on a tenant who occupied it, a notice of entry which
entitled it to take possession of the house within 14 days.
Eventually the tenant departed, leaving the house uninhabited, but the local authority took no steps to
assert its possession of the house.
A four and a half year-old child entered the house through an unsecured door and was injured when he
fell from a second floor window.

COA held: D became the occupier as soon as the premises were vacated.
Although it could not be said that in every case a person with an immediate right to take possession of
premises would be an ―occupier‖, in these particular circumstances, actual physical possession of the
premises was not necessary before the local authority could be regarded as having control of the
premises.

INDEPENDENT CONTRACTORS AS
OCCUPIERS

Whether or not an independent contractor who enters premises to undertake work becomes an occupier
of the premises depends on the nature and scale of the work being undertaken. A contractor
undertaking a large building development would become the occupier of the site

AMF International Ltd v Magnet Bowling Ltd

Page v Read [1984]:

Owners engaged contractors to carry out

construction work. P was injured. Court a decorator painting a house would not
found that both owner and contractor had become an occupier of the premises
sufficient control to be joint occupiers of
the premises.
 What Can Be Occupied?

There is no explicit definition of ―premises‖ in the Act.

However, Sec 1(3)(a) states: the Act regulates the obligations of persons occupying or having
control over “any fixed or moveable structure, including any vessel, vehicle or aircraft”.

Case law has established that ―premises‖ covers not only land and buildings, but also such structures as
lifts, ladders, diving boards, scaffolding and even large digging machines.

Wheeler v Copas [1981]

A builder P, working on D's property, was injured when a ladder lent to him by D broke under him.
The judge said a ladder could under some circumstances be considered as "premises".
 Who Is A Lawful Visitor?

Sec 1(2): a “visitor”, under the Act, is simply someone who would have been either an “invitee” or a
“licensee” at common law before the Act was passed.

The position of contractual entrants - governed by Sec

5:
no protection to trespassers and
To a limited extent, an occupier is free to set his or her
does not apply to persons who are
own standard of care in relation to contractual entrants,
outside the premises.
but where he or she does not do so, such entrants are
treated in the same way as visitors and are owed the
“common duty of care”.

Under the Act, the distinction between invitees and licensees is replaced by a single test: has the
occupier given the entrant permission to be on the premises?
[2018]
PERSONS COVERED BY SEC 1(2)

1. Express Permission

Persons expressly given permission to enter

 2. Implied Permission

a person who enters premises in order to communicate with the occupier will be treated as having the
occupier‘s implied permission to be on the premises.

Robson v Hallett [1967]

a postman or other individual has implied permission to walk up the occupier‘s drive to use the
letterbox, or to call at the front door, unless he or she knows, or ought to know, that this is
expressly forbidden

However, case law on implied permission must be seen in the context of the state of the common
law when it developed.

The common law was harsh in its treatment of trespassers and therefore many judges felt that the
rules could produce injustice. Therefore, the courts were willing to use fictional devices and sought to
avoid the unfairness of the common law in hard cases by classifying trespassers as implied licensees.

if an occupier knew that people were in the habit

if there were alluring things on the land for
of walking across his land and did nothing
children to play on, the courts might treat these as
effective to deter them, he might be treated as
in a sense inviting the children on to the land.
having given them a licence to use the land on
the basis that he reasonably led them to believe
that he has invited or permitted them to be on his
premises.
Glasgow Corp v Taylor [1922]
Lowery v Walker [1911]:

a council‘s failed to fence off a poisonous

P was using a short-cut across a farmer‘s field plant near a children‘s playground. A
when he was attacked by a horse. seven-year-old child died after eating
The farmer knew that the short-cut had been berries from the plant. The berries looked
regularly used by the public for the past 35 like cherries or large blackcurrants and
years, and had protested about this, although he were very alluring and tempting to
had never brought legal proceedings. children.
 Despite the protests, the farmer was held to have Held: Even though the boy had no right to take the
given implied permission for people to use the berries, or even to approach the bush, and an adult
short-cut as he had led the members of the public doing so might have been treated as a trespasser,
to believe that they were permitted to cross his the boy was treated as an implied licensee.
land. Therefore the P was classified as an implied
licensee

Cooke v Midland Great Western Railway of

Edwards v Railway Executive [1952] Ireland [1909]

C was a child who was injured on a railway line. A young child was injured when playing on
For many years, children had gone on to the D some machinery on D‘s land.
railway company‘s land to play.
To get to the machinery the child entered D‘s
The D company had done its best to stop land through a gap in a fence (which to D‘s
children from coming onto its land to play by knowledge other children did as well).
putting a fence and repairing the fence
whenever it discovered that the children had
breached a hole in it.

Held: the C was not a ‗visitor‘ as the D had done Held: children who entered on to the D‘s land
nothing to lead children like the C to believe that without permission and played with the machinery
they were permitted to come onto the land for the might be treated as doing so with the ‗leave and
purpose of playing on it. licence‘ of the D, given their knowledge that
children often came on to the land and that the
machinery was likely to be very attractive to
children

Now that trespassers are afforded greater protection under the OLA 1984, it is suggested there
is less need for the courts to resort to the idea of implied permission to do justice in hard cases
and therefore the earlier authorities are unlikely to be followed unless the court feels that, in a
particularly meritorious case, even the protection afforded by the OLA 1984 would be
insufficient.
 3. Persons Entering By Authority Of Law:

Sec 2(6): persons entering premises in the exercise of a right conferred by law are treated as if
they had been given permission to enter by the occupier

Example: firemen attending a fire, or policemen executing a warrant

Such cases are not cases of implied permission, but of deemed permission, because these persons are treated
as visitors even where the occupier expressly states that he or she does not want them on the premises

Limitations On Permission

The permission given by an occupier, whether express or implied, may be limited in a number of ways.

i. the occupier may permit a person to be in some parts of the premises

but not others.

Gould v McAuliffe [1941]

a customer in a pub, looking for an outside lavatory, wandered through an unlocked gate into a
private part of the premises where she was attacked by a dog.
The argument that she had become a trespasser was rejected.

Held: where an occupier wishes to exclude a visitor from an area into which visitors are likely to
wander, he or she must take reasonable steps to inform the visitor that the area is out of bounds.
 Mersey Docks and Harbour Board v Procter [1923]:

Whether it is necessary to post a notice excluding visitors from a particular area will depend on the
facts of each case. Such a notice will not be necessary in respect of a part of the premises to which no
one would reasonably expect a visitor to go.

ii. the occupier may permit the person to remain on the premises only for a
certain period of time.

Stone v Taffe [1974]

Owners of a pub specifically instructed manager not to let his friends remain on the premises after
closing hours. However on one occasion, the manager allowed friend to remain after closing hours who
suffered injuries when he fell on unlit stairs.
.
The brewery was held liable: the guest was a lawful visitor, since he did not know of the prohibition
and believed he was on the premises by invitation

iii. the occupier may permit the person to be on the premises only for
certain purposes.

In determining whether or not a person is a visitor, it is relevant to consider the purpose for
which that person is permitted to be on the premises.

The Calgarth [1927]:

Scrutton LJ: ―When you invite a person into your house to use the staircase, you do not
invite him to slide down the banisters.‖

Thus, where a person is invited for one purpose (to sleep in a bed) and starts to pursue an activity
unrelated to that purpose (jump up and down on the mattress), that person may cease to be a visitor,
even though he or she has not strayed from the permitted area
 R v Jones & Smith

D1 and D2 went into D2‘s father‘s house to steal a TV. Action brought against them for burglary.
DD1 and D2 were still trespassers as D2‘s father had not given him permission to come to his house
for the purpose of stealing.

iv. the occupier may permit the person on the premises but may
subsequently expressly revoke the permission

where a person enters premises with permission, but that permission is subsequently expressly
revoked, the law will allow a reasonable time to leave the premises, during which he or she will
still be treated as a visitor.

Robson v Hallett [1967]:

Police sergeant and 2 constables went to X‘s house to make enquiries.

X had 2 sons A & B. A let sergeant in to the house but X told him to leave.
As the sergeant reached the door, A attacked him.
The constables who were waiting outside in the garden went to help sergeant but were attacked by
B.
A and B convicted of assaulting police officers in execution of duties.

HC: The sergeant did not become a trespasser the moment he was told to go; he was allowed a reasonable
time in which to leave the premises and was in the course of doing so.

Dunstor v Abbott [1953]

v. Permission given by someone other than the occupier = insufficient

The permission to use the premises for the purposes in question must be given by the occupier or
by someone who had the ostensible authority to such an invitation or permission on occupier‘s
behalf.
Ferguson v Welsh [1987]
 Note: Persons exercising rights of way:
Sec 1(4): Persons entering land in the exercise of a public or private right of way, or in the exercise of
a statutory right to access land for recreational purposes are not ―visitors‖ under the Act - McGeown
v Northern Ireland Housing Executive [1995], Greenlagh V BRB [1969]

The “Common Duty Of Care”

The duty owed by the occupier to a lawful visitor is the ―common duty of care‖ defined in Sec
2(2):

Sec 2(2): ―The common duty of care 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 or she is invited or permitted by the occupier to be there.‖

it is the visitor, rather than simply the liability under the Act can arise where an
premises which must be reasonably safe. occupier merely fails to protect a visitor
from a danger on the premises and does not
need to have created that danger in order to
be liable

Example: if the occupier invites or permits a

blind man to come onto the premises, he or she
must take greater care for that visitor‘s safety
than would be the case in relation to a sighted the fact that the occupier has invited or
person. permitted the C to be on the premises creates
the necessary degree of proximity
 Discharging The Common Duty Of Care

In deciding whether or not the occupier is in breach of the common duty of care, the courts will have
regard to the same general factors which would be considered in a common law negligence action
including
- the likelihood of a risk materialising,
- the magnitude of the loss if the risk does materialise, and
- the cost and practicality of taking precautions.

Sawyer v Simonds (1966) : Laverton v Kiapasha [2002]:

Partially drunk customer slipped on a wet

A pub customer fell and cut his hand on a floor at D‘s shop on a wet evening. The
broken glass: doormat was not in its proper place at the
the hotel owners were not liable because time, and the floor was wet
they had a system whereby the hall porter Held: considering that it was peak time,
checked the state of the bar every twenty store manager could not be expected to
minutes, and this was enough for ensure that doormat was in place at all
"reasonable care". times and the floor mopped at all times
 no liability.

Cole v Davis-Gilbert [2007]:

Sutton v Syston Rugby Football Club Ltd [2011]:

Held: there was a danger in setting too high a player gashed his knee on a plastic object
a standard of care as it could lead to submerged in the rugby pitch.
inhibiting consequences, namely the
reduction in or prohibition of traditional Held: a quick walk-over inspection of the
activities rugby pitch was sufficient to discharge the
club‘s duty and further noted that games of
rugby are desirable activities within the
meaning of s.1 of the Compensation Act 2006.
In addition to the above, The Act expressly refers to a number of more specific factors which are
to be considered when deciding the question of breach of duty –
mentioned in Secs 2(3) and (4),

Sec 2(3)

S 2(3) refer to two specific types of visitor— children and professionals—and makes it
clear what degree of vigilance for their own safety an occupier should expect from each
type of visitor.

1. CHILDREN – Sec 2(3)(a):

Sec 2(3)(a): “an occupier must be prepared for children to be less careful than adults”

Reason: Children often fail to appreciate dangers that are obvious to adults. Their natural curiosity
often leads them into dangerous situations. Therefore, in discharging his or her duty of care, an
occupier must bear in mind that children tend to be attracted to certain objects, unaware that they
are dangerous

Glasgow Corporation v Taylor [1922]:

Poisonous berries, which looked like blackcurrants, were said to be an ―allurement‖ to small
children.
 Jolley v Sutton London Borough Council [2000]

A 13-year-old boy (Jolley) and his friend had attempted to repair an old wooden boat,
which was left abandoned on its land by the D Council and Jolley had been injured when
the boat, which had been jacked up, fell on him.

Held: the council was held to be in breach of its duty of care by allowing the boat, which was an
enticing play area for children, to be left abandoned on its land.
The courts should not underestimate the ingenuity of children in finding unexpected ways of doing
mischief to themselves and others and therefore the type of accident and injury which occurred was
reasonably foreseeable in the context of teenage boys attracted to an obviously abandoned boat

Clarifies that the courts will apply the rules of

occupiers‘ liability generously towards children,
particularly in relation to serious personal injury

LIMITATION

However, an occupier will not be liable for every action of a child on his or her premises and the rule
in Sec 2(3)(a) is not a mechanical rule to be applied every time the C happens to be a child

The law therefore provides that an occupier is entitled to assume that the behaviour of very young
children will be supervised by a responsible adult.

Phipps v Rochester Corporation

[1995]:

P was a five-year-old boy.

Accompanied by his sister, aged seven, he went out collecting blackberries on a large open
space and fell into a deep trench, breaking his leg.
The trench, which would have been an obvious danger to an adult, had been dug by the Ds,
who were developing the site.
 Held: where children of ―tender years‖ were concerned, an occupier was entitled to consider how a
prudent parent or guardian of the child should behave. Prudent adults would not have allowed two small
children to roam over the site unaccompanied.
Therefore, the occupiers of the site escaped liability as their only duty to very young children was to
ensure that they were reasonably safe on the site when accompanied by a responsible adult, and on the
facts, this duty had been discharged.

Devlin J: “it would not be socially desirable if parents were, as a matter of course, able to shift
the burden of looking after their children from their own shoulders to those of persons who
happen to have accessible bits of land.”

Bourne Leisure Ltd v Marsden [2009]

the question was whether a holiday site owner was liable for the drowning of a child in a pond, by
failing to highlight the dangers and bring the pond‘s location or the existence of an access pathway to
the parent‘s attention.

COA held: although an occupier ought reasonably to anticipate that small children might escape the
attention of parents and wander into places of danger, it does not follow that the occupier is under a
duty to make the premises completely safe for children.

Simkiss v Rhondda Borough Council [1983]:

an occupier is required to take account of the social habits of the neighbourhood in which his or her
premises are situated. Thus, where a piece of land becomes locally recognised as a playground for
unaccompanied small children, an occupier must ensure that these children are reasonably safe.

Note: Whether or not an occupier is entitled to expect that very young children on his or her premises
will be accompanied by an adult depends the age of the child and the nature of the premises.
Thus, a prudent parent should realise that whilst only very young children will be at risk in a
playground, a building site present dangers to older children if unaccompanied.
 2. TRADE/PROFESSIONAL VISITORS – Sec 2(3)(b)

Sec 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, so far as the occupier leaves him free
to do so.”

Reason: An occupier may expect that a skilled visitor, employed to undertake work on the premises,
will take appropriate precautions against risks ordinarily associated with his or her work.

Roles v Nathan [1963]

Two chimney sweeps had been engaged to clean and toseal up some vent holes in the flue of a
boiler so that it would operate more efficiently.
The D‘s heating engineer had repeatedly warned the sweeps about the dangers of being
overcome by carbon monoxide fumes if they worked on the flue while the boiler was lit.
However, the sweeps dismissed his warnings, taking the view that they were the experts and
could look after themselves.
The sweeps died as they tried to seal the flue while the boiler was lit, and were overcome by
fumes

Held: the occupiers were not liable for the death of the sweeps.

Lord Denning: “When a householder calls in a specialist to deal with a defective

installation on his premises, he can reasonably expect the specialist to appreciate and
guard against the dangers arising from the defect. The householder is not bound to watch
over him to see that he comes to no harm”.
 LIMITATIONS

An occupier may be liable where a

professional visitor suffers injury as a result Sec 2(3)(b) does not cover risks not normally
of a danger on the premises, even though they associated with the job
have exercised all due care and skill in taking
care of their own safety.

Ogwo v Taylor [1988] – a case decided at Eden v West & Co [2002]:

common law negligence

Ds were liable where a carpenter removed a

A fireman who got injured while fighting a fire in a window and the brickwork above it
confined space was able to recover from an collapsed on him —the risk of this
occupier who had negligently started the fire on the happening in a modern property was
premises. extraordinary and the Ds ought therefore to
have warned him that the brickwork was not
properly supported.

HOL held: whilst an occupier was entitled to

expect that the fireman would use his professional Williams v Department of the
skill in tackling a fire, if, despite exercising all Environment
due skill, the fireman suffered injury, the occupier
would be liable

Risk of injury from an exposed spindle in a

boiler was not incidental to the calling of an
industrial heating engineer

Neame v Johnson:
COA: the risk of falling over books or other
material left on the floor of residential
accommodation was one associated w/ being an
ambulanceman.
 Sec 2(4)

S 2(4) considers two additional factors in deciding the question of breach of duty including
warnings and situations where the danger is created by an independent contractor

3. WARNINGS – Sec 2(4)(a)

Sec 2(4)(a): in deciding whether or not an occupier has discharged the common duty of care, the fact that
he or she has warned visitors of the danger is a relevant consideration.
However, Sec 2(4)(a) goes on to state that: “the warning is not to be treated without more as absolving the
occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably
safe.”

Therefore, a distinction must be drawn between a mere warning of the danger, which offers no assistance as
to how to avoid the danger, and a warning which enables the visitor to be reasonably safe.  Under the Act,
only the latter type of warning will completely discharge the common duty of care.

Roles v Nathan [1963]:

Held: On the facts of the case, the chimney sweeps had been given clear warnings of the danger
by the D‘s heating engineer.
According to Lord Denning, these warnings enabled the sweeps to be reasonably safe, by making
it clear that the danger could be avoided if they avoided working in the flue when the boiler was
alight.

Lord Denning: “Supposing, for instance, that there was only one way of getting into and out of
premises, and it was by a footbridge over a stream which was rotten and dangerous. According to [the
old law, the occupier could escape all liability to any visitor by putting up a notice: „This bridge is
dangerous‟, even though there was no other way by which the visitor could get in or out, and he had
no option but to go over the bridge. In such a case, s.2(4) makes it clear that the occupier would
nowadays be liable. But if there were two footbridges, one of which was rotten, and the other safe a
hundred yards away, the occupier could still escape liability, even today, by putting up a notice: „Do
not use this footbridge. It is dangerous. There is a safe one further upstream‟. Such a warning is
sufficient because it does enable the visitor to be reasonably safe.”
 1. Occupiers who give warnings are 2. Not only must the warning tell the visitor
attempting to perform or to discharge their what to do in order to avoid the danger, it
duty of care: they are not attempting to must be given in terms which are
exclude their liability comprehensible to the visitor.
As children do not always give warnings the
attention they deserve, an occupier may be
required to take other steps, such as the
erection of a barrier, to discharge the
common duty of care.

3. The courts have made it clear that there is no duty to warn

irresponsible visitors against dangers which are perfectly obvious.

Tomlinson v Congleton BC
[2003]:
Lord Hoffman: ”A duty to protect against obvious risks or self-inflicted harm exists only in cases in
which there is no genuine and informed choice … or some lack of capacity, such as the inability of
children to recognise danger.”

English Heritage v Taylor

[2016]:

The key issue for the court was whether allowing visitors to a castle to use an informal path down a steep slope
where there was a risk of falling from a height into the moat was an obvious danger or not.

Held: Ds were held liable as it was not an obvious danger and that there had been no warning sign.
 Darby v National Trust [2001]:

C drowned in a pond of deep murky water.

Held: no hidden dangers in the pond  The risk of drowning in deep murky water was one which would have
been obvious to any adult who went into the pond and therefore Ds were not under a duty to place notices
around the pond warning of this risk.

Blackpool and Fylde College v Burke

[2001]

A pile of badly stacked classroom chairs fell on a student

Held: the college was under no duty give warnings and instructions about how to stack the chairs, because the
way the chairs should be stacked was obvious, as was the risk of their collapsing if this was not properly done.

Edwards v Sutton LBC

[2016]:

Held: an unfenced ornamental bridge with low parapets presented an obvious danger and
provision of side barriers/a warning would not have been appropriate.

4. Sec 2(4)(a) refers to a warning given by the

occupier and therefore a warning given by 5. The words “without more” raise the possibility
someone other than the occupier is prima facie that a warning which does not by itself enable the
insufficient to discharge the occupier‘s duty of visitor to be reasonably safe might be regarded as
care, even if it enables the visitor to be reasonably sufficient to discharge the common duty of care when
safe. taken together with some other factor in the case (e.g.
However, a warning given to a visitor by a third the presence of a guard rail).
party will, of course, form part of ―all the
circumstances of the case‖ and will be a relevant
consideration under Sec 2(2) of the Act.
 6. A sign stating that “visitors enter at their own risk” is not a warning at all, but an attempt to invoke the
defence of voluntary assumption of risk.
Similarly, a sign declaring that “no responsibility is accepted for any loss or damage on the premises” is
not a warning, but an attempt to exclude liability.

4. INDEPENDENT CONTRACTORS – Sec 2(4)(b)

deals with the situation where a visitor suffers loss because of the independent contractor‘s negligence in
carrying out work for the occupier.

The visitor‘s loss may result from the manner in which the contractors conduct themselves whilst on the
premises or may result from a defect in the premises left by poor workmanship

The question is whether or not an occupier can escape all blame for dangers created by independent contractors on
the premises?

Sec 2(4)(b): where a visitor suffers damage due to “the faulty execution of any work of construction,
maintenance or repair” by an independent contractor, the occupier is not normally liable if, in all the
circumstances of the case

it was reasonable to the occupier took reasonable the occupier took reasonable steps
entrust the work to an steps to satisfy himself or to satisfy himself or herself that the
work had been properly done.
independent contractor herself that the contractor
was competent;
 i. it was reasonable to entrust the ii. the occupier took reasonable steps to
work to an independent satisfy himself or herself that the contractor
contractor: was competent:

not very problematic  will be satisfied if A contractor will usually be taken to be competent unless
the work is of a type which is normally the occupier is aware of facts which suggest incompetence
undertaken by contractors. (example: faulty work carried out in the past).

However, in some circumstances, it may be appropriate for

an occupier to check a contractor‘s competence by:
- seeing that he or she is a member of a relevant trade
association
-holds relevant qualifications,
-is suitably experienced and
- is insured.

Bottomley v Todmorden Cricket Club

[2003]

the Ds were held liable for the activities of independent

contractors providing a fireworks display—
the hazardous nature of the activity placed the Ds under a duty
to take positive steps to check the competence of the contractors,
and, in particular, to check whether they were insured.

Gwilliam v West Hertfordshire NHS Trust [2002]:

D hospital had engaged a contractor to operate a ―splatwall‖ at a

fund-raising event.
The hospital had selected the contractor‘s name from the phone
book, and had paid him an extra £100 to operate the amusement,
C was injured by the contractor‘s negligence, and it turned out that
his public liability insurance had expired four days before the
event.
 COA held: whilst the hospital had been under a duty
to inquire into the contractor‘s insurance position, it
would have been unreasonable for them to actually
check his insurance certificate.
Therefore, by accepting the contractor‘s assurances
that he was insured, the hospital had discharged its
duty of care.

iii. the occupier took reasonable steps to satisfy himself or herself that the work had been
properly done:

Two matters are relevant in deciding whether and when it will be reasonable for an
occupier to inspect a contractor‘s work personally, to see that it has been properly done:

i. the nature of the work undertaken - the ii. the character of the occupier – where the
more complex and technical the work, the occupier is a specialist company or a local
less reasonable it is for the occupier to authority, a more detailed inspection may be
inspect it in person called for than would be required of a lay
person.

Where the occupier is a commercial concern, and the

Woodward v Mayor of Hastings [1945]: work in question is especially complex (such as the
construction of a large building or ship), the
occupier‘s duty to check each part of the work, as it
is completed, may be onerous.
a pupil was injured when he slipped on a snowcovered
step at school. D, a local authority tried to escape However, in some cases, he or she may even have to
liability by claiming that it had delegated the task of engage independent experts to supervise the
cleaning the step to the school cleaner who, it was contractor‘s work – AMF International v Magnet
argued, was an independent contractor. Bowling Ltd

Held: Ds were held liable. The cleaning of the step was

not a specialist task, and the danger was self-evident.
The occupiers therefore had a duty to inspect the
cleaner‘s work to see that it had been properly done

Haseldine v Daw [1941]:

P was fatally injured when a lift in a block of flats

fell to the bottom of its shaft, due to the negligence
of independent contractors employed to repair the
lift.
 Held: the occupier had discharged his duty  As Limits of the decision: The decision will
the work carried out on the lift was of a technical not allow an occupier to wash his or her
nature, the occupier could not be expected to ensure hands of all responsibility simply by
that it had been properly done and it was reasonable arguing that the work requiring special
for him to leave the maintenance of the lift to an skill has been delegated to a contractor.
expert. Thus, if contractors were to remove a lift
(a specialist task) but were to leave the
entrance to the shaft unguarded, it would
be difficult for the occupier to escape
liability, because the danger would be
obvious, even to a lay person.
Scott LJ: if the occupier were made liable in such
circumstances, this would effectively make him the
insurer of the contractor‘s negligence.

Ferguson v Welsh [1987]:

an occupier has no general duty to supervise the system of work used by a contractor so
as to protect the contractor‘s employees from harm.

However, in very exceptional cases, an occupier who becomes

aware that the contractor‘s employees are obviously in danger might
be under a duty to ensure that dangerous working practices are
stopped.

Green v Fibreglass Ltd [1958]

Sec 2(4)(b) does not require an occupier to supervise a contractor‘s working practices on a day-to-day basis
Reason: Sec 2(4)(b) employs the past tense. It requires an occupier to ―satisfy himself … that the work had
been properly done‖.
 Defences

i. Contributory negligence on the part

of the visitor – ii. Volenti non fit injuria - expressly
The occupier‘s liability to the visitor will referred to in Sec 2(5)
be reduced to the extent of any
contributory negligence established on
the part of the visitor The general
common law principles of negligence
will apply.

iii. Exclusion of liability

Sec 2(1) imposes the ―common duty of care‖ on an occupier ―except in so far as he is free to and does
extend, restrict, modify or exclude his duty … by agreement or otherwise”.

Therefore an occupier may exclude or limit his or her liability either by:
i. displaying a notice on the premises, or
ii. by an express term of a contract governing a visitor‘s entry
However, both of these methods are subject to the restrictions on exclusion of liability contained in the UCTA
1977 and CRA 2015.

i. Displaying a notice on the premises

Exclusion notices are conceptually distinct from warning notices.

However, certain notices combine exclusion of liability with an element of warning  in such cases, each element
of the notice should be treated separately.

Ashdown v Samuel Williams & Sons Ltd [1957]:

a licensee was injured while using a short-cut over the Ds‘ land on her way to work.
 COA Held: Ds were not liable because they had posted notices on the land stating that no person on the land
would have any claim against the Ds for any injury whatsoever and had taken reasonable steps to bring the
exclusion of liability to the attention of persons on the premises,

White v Blackmore

the notice must be clear (both in the sense of legibility and intended scope) and reasonably drawn to the
visitor‘s attention before entry.

Note: The notice cannot exclude liability to those required and permitted by law to
enter and who are therefore not free to stay off the occupier‘s land;

ii. An express term of a contract

Where a visitor enters premises in accordance Where the contract in question contains no
with a contract governing his or her entry, express term providing for a standard of care or
occupiers may include in that contract an where it contains an express term which is void
express term which specifies the standard of under UCTA 1977 or CRA 2015, Sec 5(1)
care owed to their visitor. operates to imply into the contract the
―common duty of care‖
This standard may be lower (or higher) than
the ―common duty of care‖. Maguire v Sefton [2006]
 The Contract’s Effect On Third Parties

Sec 3 deals with a situation where:

an occupier enters into a contract with A which contains an express term setting a standard of care in relation to
Aand the occupier agrees, by the terms of the contract, to let B enter the premises (even though the occupier has
no contract with B).
In such cases, if the relevant term of the contract sets a standard of care lower than the standard set in the 1957
Act, then that term does not apply to B and B is owed the ―common duty of care‖ under the Act  a
straightforward application of privity of contract

UCTA 1977

SCOPE

s.1(1)(c): the Act applies to notices applies when liability arises from the occupation of
excluding or limiting the common duty premises used for business purposes by the occupier.
of care under the 1957 Act  applies to
exclusion clauses in contracts + notices
attempting to restrict the D‘s liability

Sec 1(3) defines “business liability”: liability for the breach

of an obligation arising from “things done … in the course of
a business … or … from the occupation of premises used
for business purposes of the occupier”.
Sec 2 of OLA 1957 : liability to persons accessing premises
for “recreational or educational purposes” is not ―business
liability‖ unless those persons are also accessing the premises
for the business purposes of the occupier.

Sec 14 - defines “business‖ includes activities

which would not normally be thought of as
―business‖, namely the activities of government
departments and local authorities. May cover
charitable activities and ―Professional fund
raising‖, where only a proportion of the proceeds
are donated to charity, is clearly a business activity

Sec 2(4): the Act does not apply to ―consumer notices‖ i.e.
notices which seek to exclude or restrict a trader‘s liability to
a consumer  regulated by the Consumer Rights Act
2015.
 SUBSTANCE

Sec 2(1): where the liability in question is Sec 2(2): notices or contract terms which
―business liability‖, notices or contract attempt to exclude liability for other
terms which attempt to exclude liability matters (e.g. damage to property) are
for personal injury or death are void. valid only if they are ―reasonable‖.

CRA 2015 - introduced new statutory provisions dealing with exclusion clauses
in consumer contracts and notices.

applies to notices seeking to exclude or restrict liability to the extent that it

(a) relates to rights or obligations as between a trader and a consumer, or
(b) purports to exclude or restrict a trader's liability to a consumer.

Sec 2 defines a “consumer” and a “trader”:

- A “consumer” is a person acting for purposes that are wholly or mainly outside that person‘s trade, business,
craft or profession.
- A “trader” is a person or company acting for purposes relating to its trade, business, craft or profession

Sec 65:

(1) A trader cannot by a term of a consumer (2) Where a term of a consumer contract/ notice purports
contract or by a consumer notice exclude or to exclude or restrict a trader's liability for negligence, a
restrict liability for death or personal injury person is not to be taken to have voluntarily accepted any
resulting from negligence. risk merely because the person agreed to or knew about
the term or notice.

(3) “personal injury” includes any disease (4) “negligence” means the breach of—
and any impairment of physical or mental (a) a contractual obligation,
condition.
(b) a common law duty to take reasonable care or
exercise reasonable skill,
(c) the common duty of care imposed by the occupiers‘
liability act 1957.‖
 Sec 62(6): For Notices or contract terms which attempt to exclude liability for other matters (e.g.damage to
property), the test is fairness.
A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties'
rights and obligations to the detriment of the consumer.

A Minimum Non-Excludable Standard Of Care

It has been suggested that the occupier‘s duty to a visitor cannot be reduced below the level of the
duty owed to a trespasser because, as a matter of policy, the latter represents a minimum standard
of care owed to all, and should therefore be non-excludable  However, there is no authority to
support this argument and, unlike the 1957 Act, the 1984 Act does not mention whether an
occupier is able to modify or restrict the duty of care.