Occupiers’ liability is a special liability regime meaning that statutory regulation combines with common law to produce a package of obligations. Claims under occupiers’ liability are brought within the common law framework of negligence. There is some relevant statute law under the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act of 1984.
Someone seeking to prove occupiers’ liability must establish some important factors. To make a claim under the 1957 Act a claimant would have to show that they had suffered loss due to the state of the premises, then identify the occupier, prove that they were a visitor and establish that the occupier failed to take reasonable care for the visitor’s safety.
Under both the 1957 and the 1984 Act, duties are imposed on the occupier of the premises. In the case of Wheat v E Lacon & Co Ltd [1966] 1 All ER 582, managers of a public house were allowed by the defendants to take paying visitors who were accommodated in part of the premises labelled ‘Private’ of which the manager were licensees. The claimant’s husband while a paying visitor was killed by a fall from a staircase on the private part of the premises. This case states that the most important characteristic of an occupier is the extent of control they have over the premises. The case establishes that an occupier is someone who has a sufficient degree of control over the premises. Where a landlord lets flats in a block but retains control of the common staircase, the landlord will have sufficient control over the common staircase to be an occupier of it. The definition of an occupier is widely interpreted in a test which the courts apply as one of occupational control. However, the control need not be exclusive. There may be more than one occupier for the same premises, e.g., contractors undertaking a large building development.
We have to then consider who would constitute a visitor. The 1957 Act imposes a duty on occupiers towards visitors. Under this Act, visitors are those who have an express or implied permission to be on the occupier’s land. The 1957 Act makes it clear that this includes persons who enter under the terms of a contract and persons who enter in order to exercise any rights conferred under law.
The definition of a premises under the 1957 Act is very wide indeed. It includes open land as well as fixed and moveable structures. The duty of care owed by occupiers to their visitors is such as to take reasonable care in all the circumstances to see that the visitor is reasonably safe in using the premises for the purpose for which they are permitted to be there. The standard of care expected is the same as in an ordinary claim of negligence, i.e., an occupier must reach the standard of a reasonable occupier. They will obviously be in breach of this if they fall below this standard. There is a clear crossover here between the standards of negligence and those of expected of a reasonable occupier and similar factors will be taken into account. For example, would the reasonable occupier have generated the extent of risk that was present or should further steps have been taken by the occupier to make that premises more safe? All of these factors will have to be considered when advising clients on claims such as these.
Child visitors are singled out as requiring a higher degree of care from the occupier than other visitors. This is because they cannot be expected to appreciate dangers which would be obvious to an adult. In Glasgow Corporation v Taylor [1922] 1 ACC, a boy died by eating the berries of a poisonous shrub growing in public gardens in Glasgow. The father sued the Corporation as the proprietors and custodians of the guardian for damages for the death of his son. The court held that the poisonous berries represented a concealed danger to a seven year old. It was decided that because the shrub was a temptation or an allurement to such a young child, the occupier should have taken additional precautions.
In Phipps v Rochester Corporation [1955] 1 QB 450, a boy out blackberry picking walked across a large open space of grassland which was part of a building site on which a housing estate was being developed by the defendant. The boy fell into a trench and broke his legs. The children lived with their parents in a house in a road adjacent to the open grassland. The children were in the habit of using the land and the defendants had taken no steps to prevent them from doing so but there was no evidence that little children frequently went there unoccupied. The court held that the crucial issue was the boy’s age and the role of parental responsibility. A prudent parent would not have allowed two small children to go onto the building site. The defendant Corporation was entitled to assume that parents would not behave in this way and therefore the Corporation escaped liability. This is an important principle. Occupiers will have complied with their duty to a very young child visitor if they make their premises reasonably safe for a child who is accompanied by the sort of guardian by whom the occupier is entitled in all circumstances to expect the child to be accompanied by.
It is possible for an occupier to comply with their common duty of care by giving adequate warning. The mere fact that a warning was given will not necessarily suffice. The crucial issue will be whether the warning given was sufficient to enable the visitor to be reasonably safe. The important factors for a court to consider in deciding adequacy or otherwise of a warning are the nature of the warning, how specific it was, the nature of the danger and the type of visitors that it was directed at.
In the case of independent contractors, provided the occupier satisfies the three requirements to be found in the 1957 Act, the occupier will have discharged their common duty of care. These requirements are entrusting the work to an independent contractor and taking such steps as they reasonably ought to in order to satisfy themselves that the contractor was competent and taking such steps that they reasonably ought to in order to satisfy themselves that the work had been properly done. If these three circumstances are present, then where injury results from faulty workmanship on behalf of the contractor, the occupier is not liable. The ability to discharge the occupier’s duty of care does not apply to all work done by an independent contractor. The work must be work of construction, maintenance or repair. Upon the duty with respect to independent contractors, see the cases of Haseldine v Daw & Sons [1941] 3 All ER 156 and Woodward v The Mayor of Hastings [1945] KB 174. These cases provide that in summary where an occupier employs an independent contractor, the key question is whether the occupier has done all that reasonable care requires of them. If they have done, they will not be in breach of duty.
Causation and remoteness of damage
As with other torts, the issue of causation and remoteness apply to any claim under the 1957 Act. So you will have to consider whether causation and remoteness apply.
There are also a few arguable defences to an occupier who has breached their common duty. The 1957 Act preserves a common law defence of consent. A court will apply the same principles as for consent under common law. The claimant must therefore know the precise risk that causes the injury and by their conduct show that they have willingly accepted such a risk.
Occupiers may discharge their common duty of care by adequately warning of the relevant danger on their premises. However, the 1957 Act also permits an occupier to exclude their liability but is subject to the same requirements as to exclusion of liability that was considered earlier. In other words, reasonable steps must have been taken to bring the exclusion notice to the claimant’s attention before the tort was committed and the wording of the notice must cover the loss suffered by the claimant. Again, the ability of a defendant to exclude liability is limited by the Unfair Contract Terms Act of 1977 and the Consumer Rights Act of 2015. Business owners will be unable to exclude their liability for a non-consumer visitor’s death or personal injury because of UCTA. They may however be able to exclude liability for damages to a visitor’s property if a court considered it was fair and reasonable to allow them to do so.
Contributory negligence will also apply to reduce the sum of any awarded compensation in the same way as it does for every other case.
Liability of occupiers to trespassers
A duty under the 1984 Act is owed to people other than visitors. Under the 1957 Act a visitor is someone who has the occupier’s express or implied permission to be on the premises. The 1984 Act can apply to persons who do not have such permission, for example trespassers. In addition to trespassers, the 1984 Act covers three other types of entrants. They are people entering under an access agreement or under the National Parks and Access to Countryside Act of 1949, people who enter land pursuant to the Countryside and Rights of Way Act of 2000, and people who exercise a private right of way over the land. Under the 1984 Act a person using a public right of way is excluded from protection under the Act because they are not a visitor.
The existence of the duty under the 1984 Act towards a trespasser does not arise automatically. It must meet certain conditions. The conditions are that an occupier must (i) be aware of the danger or have reasonable grounds to believe that it exists, (ii) know or have reasonable grounds to believe that the trespasser is in the vicinity of the danger concerned and (iii) be reasonably expected to offer some protection against the risk. The words “have reasonable grounds to believe” require actual knowledge of facts which would lead a reasonable occupier to be aware of the danger or presence of the trespasser. Again, the court will look at all the circumstances of the case in assessing whether to was reasonable for the occupier to offer the trespasser some protection.
In addition to the three conditions, there are other issues that limit the duty under the 1984 Act. In the case of Tomlinson v Congleton Borough Council [2003] 3 All ER 1122, the court confirmed that the duty under the 1984 Act is concerned with the liability due to the state of the premises. The court has confirmed that the duty will not apply to injury resulting from activity rather than the state of a premises because the 1984 Act does not apply to activities. It merely applies to the state of a premises. The Act also limits the kind of damages that can be claimed. It only defines injury as “anything resulting in death or personal injury”. Accordingly, the 1984 Act does not apply to a trespasser’s property.
If the three conditions considered are all satisfied and the occupier owes a duty under the 1984 Act, the court will then consider whether there has been a breach of that duty. Again, the occupier will be liable if they have fallen below the standards of a reasonable occupier. The court will consider all the circumstances in establishing whether or not the duty has been breached.
If such a breach has been established then you will consider causation and remoteness in the normal way. You will also have to consider the available defences as we have considered in previous chapters including consent, exclusion of liability, contributory negligence and illegality.
To conclude, the duty of an occupier towards a visitor is governed by statute and common law. The provisions of the Occupiers’ Liability Act of 1957 and 1984 interact and compliment the common law tort of negligence. The duty of care under the 1957 Act is owed automatically by an occupier to a visitor. The standard of care is the same as that of negligence as in that of a reasonable occupier. Under the 1984 Act, the duty does not arise immediately but is subject to conditions. In practice it can be difficult for a trespasser to satisfy them. However, if a duty of care is owed then the standard of care is the same as with normal common law negligence. But remember, the duty under the 1984 Act only covers injury to the trespasser, not property damage.