Occupiers’ Liability

Occupier’s liability concerns the liability of an occupier of land or premises for the injury, loss or damage suffered
by the claimant while being on the occupier’s premises. Occupiers’ Liability Act 1957 (OLA 1957) which
prescribed the occupiers’ duty to their lawful visitors. The duty towards unlawful visitors is set out in Occupiers
Liability Act 1984 (OLA 1984).

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 controls the premises (WHEAT v LACON & CO). An
‘occupier’ does not have to actually occupy the premises as the legal control is enough. There can be two or more
occupiers at the same time (HARRIS v BIRKENHEAD).

PREMISES: S1 (3) (a) of the Act states that it is not just land and buildings but also temporary and mobile structures
are included (WHEELER v COPAS),

Examples of premises: land/ lifts (HASELDINE), ships in dry dock (HORTON), ladder (COPAS), boat (SUTTON
LONDON), vessel/ vehicle/aircraft (BUNKER v BRAND) . The injury must be because of the defective state of the
premises (OGWO v TAYLOR).

Occupiers’ Liability Act 1957

Lawful visitors: Lawful visitors are divided into three categories: (1) Licensees (2) Invitees (3) rightful breach of
peace stopper. A visitor may have permission to enter only until a certain time or only to enter certain parts of the
premises (CALGRATH). Repeated trespassing by the trespasser can turn them into licensee (EDWARDS). If there
is implied licence then the D cannot be counted as a trespasser (LOWERY v WALKER).

Occupiers’ duty of Care towards a lawful visitor:

According to s. 2(2) of OLA 1957, the occupier must take reasonable care to ensure that the visitor is reasonably
safe in using the premises (FERGUSON v WELSH).

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.

Skilled visitors:  s.2(3)(b) states that Occupiers can assume that skilled visitors will have a greater awareness of
risks and the relevant precautions that they should take (ROLES v NATHAN). However, this will only apply to
risks whose nature matches the skill of the visitor (GENERAL CLEANING CONTRACTORS LTD v
CHRISTMAS). The occupier must accurately explain the nature of the problem (SALMON v SEAFARER
RESTAURANTS).

Children: s. 2(3)(a) warns that children can be expected to be less careful than adults and a greater level of care
might be required to keep them from harm. What pose no threat to an adult might pose a threat to a children
(MOLONEY v LAMBETH). In PHIPPS v ROCHESTER CORPORATION it was stated that parental responsibility
cannot be shifted towards landowners. However, if land holds either concealed danger, or something which might
allure children to it, then a duty will likely be held to exist (TAYLOR). Pile of stones is not an allurement
(LATHAM v JOHNSON). Accidents can happen without anyone being at fault (MARSDEN).

Warning: Very obvious risks require no warning at all (STAPLES). Where a risk is not obvious warning must be
given (ENGLISH HERITAGE v TAYLOR). S.2(4)(a) of OLA 1957 states that sufficient warning of a danger will
remove the liability (ROLES v NATHAN). Sometimes precise warning may be insufficient (RAE v MARS). Taking
sufficient steps would have prevented the harm (BEATON v DEVON).

Independent contractors: S.2(4)(b) provides a list of the situations in which an occupier will not be held liable for
a harm caused by an independent contractor. Firstly, where in was reasonable to entrust the work (HASELDINE v
DAW). Secondly, the independent contractor was competent (WALSH), thirdly, where the occupier has failed to
take reasonable steps to check the work (WOODWARD). If technical knowledge is required to check the work of
the contractor, then the occupier will not be liable (HASELDINE).

Defences

Defences when dealing with OLA 1957.

1. Volenti non fit injuria: Visitors will often be in situations in which they are aware of a risk, but choose to
continue anyway. Visitor will be held to have consented to the risk. Three conditions must be satisfied in
order to get this defence. Firstly, the risk was understood by the visitor (SIMMS v LEITH), secondly, must
be accepted by him (WHITE), lastly, must have given alternative choices (BURNETT)
2. Contributory negligence: 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.
3. Exclusion clause: An occupier may exclude his liability by giving a notice. However, the notice must be
clear and reasonably drawn to the visitors attention (WHITE v BLACKMORE).

4. Ex Turpi Causa: If the claimant suffers injury while committing illegal act then the occupier will be able
to avoid liability.

Occupiers Liability Act 1984

OLA 1984 provides the basis for the duty that an occupier has towards those who are unlawful visitors. This
includes trespassers and also using private right of way (GAYTON). A trespasser is 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.” (DUMBRECK).

The Duty of Care towards Trespassers:

The relevant duty of care can be found in S1(3) of the Act. It describes three criteria which must be met before a
duty arises.

1. The occupier must be aware of the risk, or have reasonable grounds to believe that it exists (WOOLIN).
2. The occupier must know or have reasonable grounds to believe that a trespasser can come into the vicinity
of that danger (SWAIN v PURI).
3. The relevant risk must be one which the occupier would reasonably be expected to protect against
(TOLMINSON).

S.1(4) states that a reasonable occupier is expected to show that there might be danger (YOUNG v KENT
COUNCIL). Occupier may owe a duty who is engaged in committing a crime (PLATT v LIVERPOOL).

Sufficient warning of a danger will remove the liability (WESTWOOD v POST OFFFICE).

Voluntary assumption of risks neglects liability (TOLMINSON).

Contributory negligence is a defence to actions against trespasser