Revision Hub / Module 4 · Special Liability Regimes

Occupiers' Liability

Lecture L13 Two statutory regimes Reading: Horsey & Rackley ch 11

Snapshot

Occupiers' liability is a statutory form of negligence for harm caused by the state of premises. Two regimes apply: the OLA 1957 imposes a "common duty of care" on occupiers towards visitors; the OLA 1984 imposes a narrower duty towards non-visitors (mainly trespassers). Framework: identify the occupier (Wheat v Lacon control test); classify the entrant; apply the correct Act; consider warnings, contractors, defences and contributory negligence.

1. Who is the occupier? The control test

Neither Act defines "occupier"; s.1(2) of the 1957 Act preserves the common-law meaning. In Wheat v E Lacon & Co the Lords adopted a control test: anyone with a sufficient degree of control over premises is an occupier. Exclusive possession is not required and two or more parties may occupy concurrently.

Wheat v E Lacon & Co Ltd [1966] AC 552 (HL)

Facts: A paying guest fell down a poorly-lit staircase in a pub managed under contract for the brewery owner.
Holding: Both brewery and manager were occupiers; an occupier is anyone with "a sufficient degree of control over premises that he ought to realise that any failure to use care may result in injury".
Why it matters: Modern control test: dual occupation possible; ownership neither necessary nor sufficient.

Occupier status can attach to tenants, landlords retaining common parts, licensees, and owners who hire contractors. Under s.4 Defective Premises Act 1972 a repairing landlord owes a duty for defects; in Harris v Birkenhead Corporation [1976] a council that had never entered a property was still the occupier.

2. The Occupiers' Liability Act 1957 — visitors

The 1957 Act abolished the old tripartite split between contractual entrants, invitees and licensees. The only distinction now is between visitors (express or implied permission) and non-visitors (everyone else, mainly trespassers).

Occupiers' Liability Act 1957 — key provisions

s.1(1) Duty in respect of "dangers due to the state of the premises or to things done or omitted to be done on them".

s.1(2) Preserves common-law meaning of "occupier" and "visitor".

s.1(3)(a) "Premises" includes any fixed or moveable structure (e.g. bouncy castle: Furmedge [2011]; ladder: Wheeler v Copas [1981]).

s.2(1) Occupier owes the "common duty of care" to all visitors, subject to extension/exclusion.

s.2(2) Duty: "to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted".

s.2(3) (a) "an occupier must be prepared for children to be less careful than adults"; (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(4)(a) Warning does not absolve unless "enough to enable the visitor to be reasonably safe".

s.2(4)(b) No liability for an independent contractor's faulty work if occupier acted reasonably in entrusting it and took reasonable steps to check competence and that the work was properly done.

s.2(5) No obligation for risks willingly accepted (statutory volenti).

2.1 Who is a visitor?

Permission may be express or implied (e.g. shopkeepers impliedly invite the public). A visitor who exceeds the scope of permission becomes a trespasser — Scrutton LJ: "when you invite a person into your house to use the staircase, you do not invite him to slide down the banisters". Applied in Geary v JD Wetherspoon plc [2011] EWHC 1506 (QB): claimant slid down a banister, fell onto marble and was paralysed; she had exceeded permission.

2.2 State of premises vs activities

The s.2(2) duty makes the visitor reasonably safe, not the premises in the abstract. The Act covers "dangers due to the state of the premises". In Tomlinson Lord Hoffmann suggested obiter that careless activities on land could fall within the Act, but Revill v Newbery [1996] treats activity-based harms as ordinary negligence. The duty is essentially one for omissions to remedy known land-based risks.

2.3 Standard of care & breach

Breach uses ordinary Bolton v Stone factors (probability, gravity, cost, utility). Liable: Pollock v Cahill [2015] (failure to warn blind guest of open window); Spearman v Royal United Bath Hospitals [2017] (disoriented patient fell from roof). Not liable: Bowen v National Trust [2011] (no foreseeable sign of branch decay); Kiapasha v Laverton [2002] (small takeaway did what was reasonable on wet floor — resources matter). James v White Lion Hotel [2021] confirms breach is fact-sensitive and voluntary risk-taking goes to apportionment.

2.4 Children: s.2(3)(a) and allurement

Occupiers must expect children to be less careful. Under the allurement doctrine, features harmless to adults may be dangerous to children and may even convert a trespassing child into a visitor.

Glasgow Corporation v Taylor [1922] 1 AC 44 (HL)

Facts: A seven-year-old died after eating poisonous berries from an attractive shrub in a public garden.
Holding: Liable: known allurements to children may ground a heightened duty; the berries were a "concealed danger".
Why it matters: Foundational authority for s.2(3)(a) and the allurement principle.

Phipps v Rochester Corp [1955] 1 QB 450

Facts: A five-year-old fell into an obvious trench dug across open land used as a playground.
Holding: No liability: Devlin J held an occupier may expect "small children will, in fact, be accompanied by a responsible person".
Why it matters: Outer limit of s.2(3)(a): parental responsibility, not occupier liability, fills the gap for very young children.

Applied in Simkiss v Rhondda BC (1983) and Marsden v Bourne Leisure [2009] (drowning of a two-year-old). Contrast Jolley v Sutton LBC [2000] (abandoned boat = foreseeable allurement).

2.5 Skilled visitors: s.2(3)(b)

Roles v Nathan [1963] 1 WLR 1117 (CA)

Facts: Two chimney sweeps, repeatedly warned about CO build-up, returned at night, ignored warnings and were asphyxiated.
Holding: No liability: under s.2(3)(b) an occupier may expect a skilled visitor to guard against risks "ordinarily incident to" their calling.
Why it matters: Workmen take their occupational risks with them.

2.6 Warnings: s.2(4)(a)

A warning suffices only if it enables the visitor to be reasonably safe. In Darby v National Trust [2001] there was no duty to warn of the obvious risk of drowning while swimming in a pond. Tomlinson reinforces that obvious risks rarely require any warning.

2.7 Independent contractors: s.2(4)(b)

An occupier is not liable for a contractor's negligence where (i) it was reasonable to entrust the work, (ii) the contractor was apparently competent, and (iii) reasonable checks were made. In Haseldine v CA Daw [1941] (negligent lift repair) the occupier could not verify specialist work; in Woodward v Mayor of Hastings [1945] (icy steps) the school should have checked. Ferguson v Welsh [1987] confirms occupiers are not normally liable for contractors' unsafe systems, though a duty may arise where the occupier knew or ought to have known. Gwilliam [2002] and later cases (Naylor v Payling; Glaister) suggest no general duty to verify insurance.

3. The Occupiers' Liability Act 1984 — non-visitors

The 1984 Act replaced the harsh common-law rule of Addie v Dumbreck [1929] (no duty to trespassers save for intentional injury) with the "common humanity" standard from BRB v Herrington. The duty is narrower than s.2(2) and arises only on stringent preconditions.

Occupiers' Liability Act 1984 — key provisions

s.1(1) Duty to "persons other than visitors" in respect of dangers due to the state of the premises.

s.1(3) Duty arises only if: (a) occupier is aware or has reasonable grounds to believe the danger exists; (b) knows or has reasonable grounds to believe the non-visitor is in the vicinity; and (c) the risk is one he may reasonably be expected to offer some protection against.

s.1(4) Duty: "to take such care as is reasonable in all the circumstances… to see that [the non-visitor] does not suffer injury… by reason of the danger concerned".

s.1(5) Duty may be discharged by reasonable warning or by steps to discourage entry.

s.1(6) No duty for risks willingly accepted (statutory volenti).

s.1(8) Property damage excluded — only personal injury.

3.1 Who is a non-visitor?

Trespassers, persons exercising private rights of way, and entrants under the Countryside and Rights of Way Act 2000. Tomlinson confirms a visitor who exceeds permission becomes a trespasser. Ovu v London Underground [2021] left open whether a trespasser remains one indefinitely or whether the analysis is sensitive to the precise stage of the encounter.

3.2 The s.1(3) preconditions

Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231

Facts: Claimant dived from a slipway into a harbour at midnight mid-winter and struck a submerged grid pile.
Holding: No duty: at that time and place the occupier had no reasonable grounds to believe a trespasser would be in the vicinity (s.1(3)(b)).
Why it matters: s.1(3)(b) is judged at the actual time and place of the incident, not in the abstract.

Tomlinson v Congleton BC [2003] UKHL 47

Facts: An 18-year-old ignored "no swimming" signs, dived into a shallow lake and broke his neck.
Holding: No liability: he was a trespasser; the risk came from his own activity, not the premises; obvious risk meant s.1(3)(c) failed. Lord Hoffmann: "people of full capacity who choose to indulge in dangerous activities… have to take responsibility for their own actions".
Why it matters: Anchors modern law: obvious risks, autonomy, "social cost" of over-deterrence.

Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39

Facts: An 11-year-old climbed the underside of a fire-escape staircase like a climbing frame and fell.
Holding: No duty: the staircase was not itself dangerous; injury arose from misuse, not from "the state of the premises".
Why it matters: Distinguishes premises-based from activity-based dangers; limits the heightened protection of children.

3.3 Reasonable steps under s.1(4)

A duty is usually discharged by warnings or physical measures discouraging entry.

British Railways Board v Herrington [1972] AC 877 (HL)

Facts: A six-year-old crossed a defective fence onto a railway and was burned on the live rail.
Holding: The Board owed a duty of "common humanity" and breached it by failing to repair the fence.
Why it matters: Historical predecessor of the 1984 Act; replaced the harsh Addie v Dumbreck rule.

Ratcliff v McConnell [1999] (student dived into closed pool with signs — reasonable steps taken; volenti). Westwood v Post Office [1974] requires warnings to let the trespasser appreciate and avoid the risk; vague "no admittance" will not do.

4. Defences and contributory negligence

Volenti: complete defence (s.2(5); s.1(6)) — illustrated by Geary (1957 Act) and Ratcliff (1984 Act). Contributory negligence reduces damages under the 1945 Act: in English Heritage v Taylor [2016] a visitor who fell over a castle drop was 50% to blame. Exclusion: s.2(1) permits restriction by agreement/notice, but s.65 CRA 2015 (formerly s.2 UCTA 1977) bars a business occupier from excluding liability for personal injury or death caused by negligence; other exclusions must be fair. The 1984 Act is silent on exclusion.

Public rights of way: McGeown v NI Housing Executive [1995] holds users are neither visitors nor trespassers under the Acts. The CROW Act 2000 imposes a still narrower duty on "access land" occupiers — liability only for hazards created intentionally or recklessly.

5. Application framework

Identify the occupier(s). Apply the Wheat v Lacon control test. Owners, tenants, landlords with common parts, licensees and contractors can all qualify; multiple occupiers possible.
Classify the entrant. Visitor (express/implied permission) or non-visitor (trespasser, public right of way, CROW Act)? Has a visitor exceeded permission (Geary; Tomlinson)? Children may be elevated by allurement (Glasgow Corp) or remain trespassers for activity-based dangers (Keown).
Apply the correct Act. Visitors: s.2(2), modified by s.2(3) (children/skilled), s.2(4)(a) (warnings), s.2(4)(b) (contractors). Non-visitors: satisfy the three s.1(3) preconditions, then apply the s.1(4) reasonable-steps duty.
Breach. Bolton v Stone factors — probability, gravity, cost, utility (Tomlinson's "social cost"). Distinguish premises-based from activity-based dangers.
Defences and apportionment. Volenti; contributory negligence; valid exclusion (subject to CRA/UCTA). Note s.1(8) excludes property damage under the 1984 Act.

If visitor status is arguable, run both regimes in parallel: "If a visitor, then under the 1957 Act…; if a trespasser by exceeding permission, then under the 1984 Act…".

6. Common pitfalls

Treating "occupier" as "owner". Wheat's control test means managers, licensees, contractors and even a non-entering owner (Harris v Birkenhead) may be occupiers concurrently.

Conflating the two Acts. s.2(2) is a positive duty; s.1(4) only arises after the s.1(3) preconditions and is much thinner. Always state which regime applies and why.

Forgetting the duty concerns state of the premises, not the claimant's activity. Tomlinson and Keown: a shallow lake or fire escape is not itself dangerous; activity-based harms fall into ordinary negligence.

Assuming any sign discharges the duty. s.2(4)(a) requires warnings to enable reasonable safety — generic notices may miss specific hazards (Westwood; cf. Darby for obvious risks). Children may not read at all (Glasgow Corp).

7. Exam checklist

Identified every occupier on the Wheat v Lacon control test, including concurrent occupiers.
Classified the claimant as visitor or non-visitor; flagged any change of status by exceeding permission.
Selected the correct Act (1957 for visitors, 1984 for non-visitors) and ran both in the alternative if status is contested.
For 1957 Act problems: cited s.2(2) common duty, plus s.2(3) (child / skilled visitor), s.2(4)(a) (warnings), s.2(4)(b) (independent contractors) where engaged.
For 1984 Act problems: ran each of the three s.1(3) preconditions before reaching the s.1(4) duty.
Distinguished state-of-premises harms from activity-based harms (Tomlinson, Keown).
Considered breach factors (probability, gravity, cost, utility) and any heightened/lowered standards (children; skilled visitors).
Closed with defences: volenti (s.2(5)/s.1(6)); contributory negligence; valid exclusion subject to CRA 2015/UCTA 1977.