occupiers liability
Objectives of Chapter
Understand the occupier's duty towards lawful visitors as governed by the Occupiers' Liability Act 1957.
Understand the occupier's duty towards trespassers as governed by the Occupiers' Liability Act 1984.
Historical Context
Since the 19th century, law recognized the occupier of premises had a duty towards the safety of visitors.
The duty evolved through common law, classifying visitors and assigning different levels of duty:
Contractors (e.g. hotel guests) were owed the highest duty—ensuring premises fit for contract purposes.
Invitees (e.g. customers) owed a lower duty—to take reasonable care against unusual dangers.
Licensees (e.g. friends) owed a warning of known concealed dangers.
Trespassers owed no care but could not be harmed deliberately or recklessly.
Statutory Developments
Following a Law Reform Committee report, the Occupiers Liability Act 1957 established a statutory duty for occupiers towards lawful visitors in relation to dangers due to the state of the premises.
The Occupiers' Liability Act 1984 later imposed a different duty towards trespassers.
25.1 Occupiers and Premises
25.1.1 Occupiers
Potential defendants under both Acts are occupiers who may or may not own or lease the premises. No statutory definition of 'occupier'.
Case Law Determining Occupier:
Wheat v E Lacon & Co. Ltd (1966): A pub manager rented rooms and was liable alongside his employer when a guest fell and died due to a staircase defect. Multiple occupiers can exist.
Harris v Birkenhead Corporation (1976): A local council was found to occupy an empty house despite not taking possession. Control over premises plays a role in identifying an occupier.
Bailey v Armes (1999): A boy injured while playing on a roof was deemed not covered as there was insufficient control over access from both the defendants and supermarket owners.
25.1.2 Premises
No strict definition of premises beyond s 1(3) (a) of the 1957 Act mentioning 'fixed or moveable structures, including vessels, vehicles, and aircraft'.p
Examples of premises include:
A ship in dry dock.
A vehicle.
A lift.
A ladder.
Case Examples:
Revill v Newbery (1996): Claimant injured attempting to steal from the defendant's shed; harm due to dangerous conduct rather than premises condition.
25.2 Lawful Visitors and the Occupiers' Liability Act 1957
Under s 2(1), the occupier owes lawful visitors a common duty of care, applicable to adults, children, and workmen.
25.2.1 Adult Visitors
Adult visitors are owed a common duty of care:
Invitees: Individuals invited to enter, having express permission.
Licensees: Individuals with express or implied permission for a period.
Contractual Permission: Individuals with access via a purchased ticket.
Statutory Rights: Persons like meter readers or police with lawfully granted entry.
Key Term: Visitor: Legal definitions encompass invitees, licensees, those with contractual permission, and those with statutory right of entry.
25.2.2 Examples for Adult Visitors
Activity Considering Claimants:
Trevor (milkman): Lawful as he delivers milk.
Kurt (picking flowers): Not lawful as he exceeded permission.
Craig (flyer delivery): Lawful due to business purpose.
Iqbal (police officer): Lawful for police duties.
Hannah (crossing field): Lawful if public path.
Aaron (electrician): Lawful for agreed work.
Ali (police enquiry): Lawful for official business.
Common Duty of Care Requirements (s 2(2)):
To take reasonable care ensuring visitors are safe for the intended purpose of their visit.
25.2.3 Relevant Case Law for Adult Visitors
Laverton v Kiapasha Takeaway Supreme (2002): Owners maintained wet floors and precautions; liability was denied as they took reasonable care.
Dean and Chapter of Rochester Cathedral v Debell (2016): Court stated tripping is common; liability exists only for real dangers—not minor blemishes that are regular hazards.
Visitors are reasonably safe even with minor defects present.
25.2.4 Exceeding Permission
A visitor's status may change to trespasser if they enter non-authorised areas, invoking rules of the 1984 Act. Liability will not apply for pure accidents.
Cole v David-Gilbert (2007): Claimant injured in a village green hole where the duty of care was limited; the act was deemed a pure accident, potential dangers were not due directly to the occupier's actions.
25.2.5 Occupiers' Liability to Children
A higher duty of care exists for children (s 2(3)): the occupier must antidote to children being less careful than adults, requiring reasonably safe premises for the child’s age.
Relevant Cases:
Glasgow Corporation v Taylor (1922): Liability established due to deadly allurement of poisonous berries.
Phipps v Rochester Corporation (1955): No liability as parents should supervise young children.
Jolley v London Borough of Sutton (2000): Injury from playing in a dangerous abandoned boat was fairly foreseeable.
25.2.6 Liability for Tradesmen
Occupiers owe common duty of care to tradesmen. However, under s 2(3)(b), it’s expected they guard against risks related to their work.
Roles v Nathan (1963): The court found occupiers not liable for chimney sweeps who ignored safety warnings.
25.2.7 Liability for Independent Contractors
s 2(4) stipulations: Occupiers not liable if:
Reasonable to contract work out.
Competent contractor chosen.
Occupier checked quality of work.
Case Examples:
Haseldine v Daw & Son Ltd (1941): No liability for a fatal lift accident due to the specialized nature of the work.
Bottomley v Todmorden Cricket Club (2003): Liability established due to unsafe pyrotechnics team choice, lacking professionalism and insurance.
Woodward v Mayor of Hastings (1945): School liable for ice risks, as they failed to inspect work post-clearing.
25.2.8 Defences to Claims
Options include contributory negligence and consent (volenti non-fit injuria).
Contributory Negligence: Claimant’s own negligence leads to liability reduction.
Consent: If successfully argued, claimant bears no damages for injury. Specific references to Chapter 24 also apply.
25.2.9 Warning Notices
Can exonerate liability if clear about dangers (s 2(4)). Signs must provide adequate warning; failure leads to possible claims.
Rae v Marrs (1990): Warning insufficient in extremely dangerous premises.
Staples v West Dorset District Council (1995): Obvious dangers require no additional warnings.
25.2.10 Exclusion Clauses
Occupiers can exclude duties by agreement (s 2(1)). Clauses limiting liability to death/personal injury due to negligence is void per Unfair Contract Terms Act 1977.
Consumer Rights Act 2015 prohibits exclusion clauses that limit liability for personal injury.
25.3 Liability for Trespassers: The Occupiers' Liability Act 1984
25.3.1 Background
Historical common law dictated no duty to trespassers but for negligence. The duty of common humanity emerged.
Case Example: British Rail Board v Herrington (1972) established a limited duty owed to child trespassers under conditions where danger is known.
25.3.2 Scope of Duty under s 1(1)(a) of the 1984 Act
Duty applies concerning injuries on premises attributable to dangers present. Only personal injury claims are valid, not property damage.
Duty conditions (s 1(3)): Must possess awareness or reasonable grounds of a prevailing danger; a duty arises if a risk is one requiring some protection.
Required care assessment is objective and conditional on premises, risks, and trespassers' ages.
25.3.3 Risks for Adult Trespassers
Courts established that obvious risks exempt occupiers from liability.
Case Examples:
Ratcliff v McConnell (1999): Court found the occupier not liable for injuries from known swimming pool hazards.
Donoghue v Folkestone Properties (2003): No duty owed as the claim occurred at an unlikely time for trespassers.
Tomlinson v Congleton Borough Council (2003): Liability lost as the water danger was due to the claimant’s actions, not the premises condition.
Higgs v Foster (2004): Occupiers not liable as the potential danger was disregarded due to unanticipated trespasser presence.
Rhind v Astbury Water Park (2004): No duty owed when the risk was unknown due to a hazard on the premises.
25.3.4 Risks for Child Trespassers
Same statutory concept applies to children as adult trespassers but attitudes are generally softer towards youths.
Case Examples:
Keown v Coventry Healthcare NHS Trust (2006): Court deemed child responsible for dangerous choices in climbing a fire escape.
Baldaccino v West Wittering (2008): Diving injuries deemed a result of individual action, thus occupiers not liable.
25.3.5 Defences under the 1984 Act
Conditions similar to lawful visitors, including consent and contributory negligence principles.
Westwood v Post Office (1973): Sufficient warning notice upheld even for trespassers.
25.3.6 Remedies for Trespassers
Damages can be claimed only for personal injuries; stricter rules than for lawful visitors.
Summary of Key Points
Lawful visitors owed common duty by occupier, requiring premises to be reasonably safe.
Higher safety standards for children due to perceived naivete & potential allurement effects.
Non-liable presence for contractors if reasonable expectations are met regarding work quality and execution.
Occupiers may exclude liability via warnings or exclusions, but with strict adherence to unaltered laws regarding personal injury.
Clear duties towards trespassers exist but considerably limited, especially related to obvious dangers or unforeseen events.