Occupiers' liability is a field of tort law, codified in statute, which concerns the duty of care

Duty of care

In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant...

 that those who occupy (through ownership or lease) real property owe to people who visit or trespass. It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises. In English law, occupiers' liability towards visitors is regulated in the Occupiers' Liability Act 1957

Occupiers' Liability Act 1957

The Occupiers' Liability Act 1957 is an Act of the Parliament of the United Kingdom that covers occupiers' liability. The result of the Third Report of the Law Reform Committee, the Act was introduced to Parliament as the Occupiers' Liability Bill and granted the Royal Assent on 6 June 1957,...

. In addition, occupiers' liability to trespasser

Trespasser

In the law of tort, property, and criminal law a trespasser is a person who commits the act of trespassing on a property, that is, without the permission of the owner. Being present on land as a trespasser thereto creates liability in the trespasser, so long as the trespass is intentional...

s is provided under the Occupiers' Liability Act 1984

Occupiers' Liability Act 1984

The Occupiers' Liability Act 1984 is an Act of the Parliament of the United Kingdom that covers occupiers' liability for trespassers. In British Railways Board v Herrington 1972 AC 877, the House of Lords had decided that occupiers owed a duty to trespassers, but the exact application of the...

. Although the law largely codified the earlier common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

, the difference between a "visitor" and a "trespasser", and the definition of an "occupier" continue to rely on cases for their meaning.

Who is an occupier?

Neither Occupiers' Liability Act defines "occupier". The definition must be sought in case law. The currently applicable test for the status of "occupier" is the degree of occupational control. The more control one has over certain premises, the more likely he is to be considered "occupier" for the purposes of the two Occupiers' Liability Acts. More than one person at the same time can have the status of occupier.

Tenants and licensees

Both tenants and licensees will be occupiers of property where they live. Licensees will usually share the status of occupier with the owner.

Owners

Owners of let property will be occupiers of those areas which they have not let by demise and over which they have retained control (such as the common staircase in flat building). If the tenancy agreement imposes upon the owner the duty to carry out repairs, he will be co-responsible with the tenant for the conditions of the premises as occupier.

Independent contractors

Independent contractors working on the property may also be covered by the concept of "occupier" if they exercise sufficient control over the premises.

"Visitor"

The Occupiers' Liability Act 1957 regulates occupiers' liability to visitors. S 1(2) of the Act defines “visitors” as persons to whom the occupier gives (or is to be treated as giving) an invitation or permission to enter or use the premises. In other words, visitors are persons who have the express or implied permission of the occupier to be on the premises. A visitor who exceeds the occupier's permission, e.g. by going to the part of the premises where he was told by the occupier not to go, or by outstaying his leave, will become a trespasser and will fall outside the sphere of application of the Act. He will then be in the sphere of application of the Occupiers' Liability Act 1984, with lower standards of protection.

"Visitors" for the purposes of the Act are also “persons who enter premises for any purpose in the exercise of a right ... whether they in fact have [the occupier's] permission or not.” Police carrying out a lawful search, or firefighters in the exercise of their duties will fall into this category.

"Premises"

S 1(3) of the Act defines premises as “fixed or movable structures, including any vessel, vehicle or aircraft.” Nevertheless, occupiers of vehicles are rarely sued by passengers under the Occupiers’ Liability Act, usually relying on Common Law Negligence

Negligence

Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...

.

Scope of duty

The Occupier's Liability Act 1957 imposes upon the occupier a common law duty of care

Duty of care

In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant...

. The 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". The standard of care an occupier is expected to meet is the standard of "a reasonable occupier", no different from the usual common law negligence standard of care

Breach of duty in English law

In English tort law, there can be no liability in negligence unless the claimant establishes both that they were owed a duty of care by the defendant, and that there has been a breach of that duty...

.

Children

Section 2(3)(a) provides that an occupier must be prepared for children to be less careful than adults. As a result, a higher standard of care is expected from the occupier when children are visiting his premises. For example, if a city authority plants a bush with poisonous berries in a public park, it should fence it off in case the children visiting the park are tempted to eat these berries. However, an occupier may reasonably expect that his child visitors be accompanied by their parents or other guardians, who will look after them. Therefore, it had been held that the occupier will have discharged his duty toward a child if he had made the premises reasonably safe for the child accompanied by the kind of guardian that he can expect them to be accompanied by in the circumstances.

Specialist visitors

Section 2(3)(b) provides that professional visitors, i.e. persons in the exercise of his skill should "appreciate and guard against any special risk ordinary incident to [the exercise of the skill]". This means that the occupier does not need to exercise special care to prevent injury to persons who have come to repair the premises or perform other special services in them. So, the family of chimney sweeps that negligently entered the occupier's chimney while his boiler was on and suffocated could not recover against the occupier of the premises: the risk they decided to take should have been known to them as part of their profession and they should have guarded against it.

Liability for others

The occupier will not normally be liable for damage caused by the negligence of persons who were carrying out work on his premises, such as independent contractors. So, if damage was caused by a faulty maintenance of lifts, the occupier will not be liable because this damage was the result of other persons' negligence. Nevertheless if the occupier:

• was not reasonable in employing the contractor;
• did not make sure that the contractor was sufficiently competent; or
• did not properly supervise the contractor’s work,

he may still be liable under s.2(4)(b) of the Occupiers' Liability Act 1957.

Effective warning

Under s.2(4)(a), a warning will only serve to discharge the occupier’s duty with respect to the danger if it enables the person to whom the duty is owed to be reasonably safe. The warning must therefore be sufficiently clear about the danger and ways of avoiding the danger must be readily available. In determining this, the courts will consider the following factors:

• How specific was the warning? Did it make the nature of the danger clear? A simple “do not touch” or "enter at your own risk" may not be sufficient warning, since it does not put people in notice of any danger to themselves. However, by touching where it says "do not touch", the visitor will turn into a trespasser, who has a lower degree of protection under the 1984 Act.
• The nature of the danger. Was it hidden or apparent? A warning of a hidden dangers must clearly be more express.
• The type of visitor? Not all visitors may be able to understand the warning, as may be the case with small children or foreign tourists who do not read English.

NB: Warnings must be distinguished from notices purporting to exclude liability.

"Persons, other than visitors"

The Occupiers' Liability Act 1984 applies to "persons, other than visitors". In practice, these are usually what is referred to as trespassers.
In Robert Addie & Sons (Colliery) Ltd v. Dumbreck [1929] AC 358 Lord Dunedin had defined "trespasser" as follows:

"A trespasser is a person who goes upon land without invitation of any sort and whose presence is unknown to the proprietor or, if known, is practically objected to."

Scope of duty

The scope of duty under the 1984 Act is much narrower than under the 1957 Act. An occupier will only owe trespassers a duty to care for their safety:

• in respect of risks of which the occupier knows or has reasonable grounds to believe that they exist;
• if he knows or has reasonable grounds to believe that the [trespasser] is in the vicinity of the risks;
• if the risk is one against which he can be expected to offer some protection in the circumstances.

Whether the risk is one against which the occupier may be expected to offer some protection will depend on various relevant factors, which include:

• The nature of the premises (how dangerous are they? A private house? An electrified railway line?);
• The nature of the danger (hidden or obvious and the degree of danger);
• The extent of the risk (is there a high or low risk of injury?);
• The gravity of possible injury;
• The age of the trespasser;
• The nature and character of entry (e.g. burglar, child trespasser or adult inadvertently trespassing);
• The foreseeability of the trespasser (i.e. the more likely people are to trespass, the more precautions must be taken).

Occupiers' liability and negligence

A claim under one of the Occupiers' Liability Acts does not exclude a simultaneous claim in negligence

Negligence

Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...

, known as suing "in the alternative". Very often, both claims are brought at the same time.

As in negligence, once the claimant has proved that the defendant was in breach of his duty towards him under the Occupiers' Liability Act, he must go on to prove damage and factual and legal causation

Causation in English law

Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law....

. Defences, such as contributory negligence, assumption of risk

Assumption of risk

Assumption of risk is a defense in the law of torts, which bars a plaintiff from recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which he was participating at the...

, ex turpi causa

Ex turpi causa non oritur actio

Ex turpi causa non oritur actio is a legal doctrine which states that a claimant will be unable to pursue a cause of action if it arises in connection with his own illegal act...

 etc. will equally apply to actions under the Occupiers' Liability Acts.

Case list

• Glasgow Corporation v Taylor [1922] 1 AC 44
• Robert Addie & Sons (Colliery) Ltd v Dumbreck [1929] AC 358
• Phipps v Rochester Corporation [1955] 1 QB 450
• Roles v Nathan [1963] 1 W.L.R. 1117, concerning chimney sweeps' inability to claim compensation for a dangerous work environment
• Wheat v E Lacon & Co Ltd [1966] 1 All ER 582, concerning the definition of "occupier"
• Ward v Tesco Stores Ltd
  Ward v Tesco Stores Ltd
  Ward v Tesco Stores Ltd [1976] 1 WLR 810, is an English tort law case concerning the doctrine of res ipsa loquitur . It deals with the law of negligence and it set an important precedent in so called "trip and slip" cases which are a common occurrence...
  
  [1976] 1 W.L.R. 810, on res ipsa loquitor; the liability of a supermarket to compensate for anyone slipping on premises (on pink yoghurt or otherwise)
• Titchener v British Railway Board [1983] 1 WLR 1427
• Ratcliff v McConnell and Another [1999] 1 WLR 670; a failed claim by a trespasser who was injured by diving into the shallow part of a swimming pool when it was closed to visitors;
• Gwilliam v West Hertfordshire Hospital NHS [2002] EWCA Civ 1041, on the possible 'duty to insure' one's property
• Tomlinson v Congleton Borough Council
  Tomlinson v Congleton Borough Council
  Tomlinson v Congleton Borough Council [2003] is a 2003 court case in England from the House of Lords regarding the torts of negligence and occupiers' liability ....
  
  [2003] 3 All ER 1122; a failed claim of a diver left paralysed after diving into a lake where a sign "no diving" was put up
• Donoghue v Folkestone Properties Ltd
  Donoghue v Folkestone Properties Ltd
  Donoghue v Folkestone Properties Limited is an English court case heard in the Court of Appeal of England and Wales concerning the tort of occupiers' liability from the Occupiers' Liability Act 1984.-Litigation:...
  
  2003