Occupiers' Liability Lecture
Just as a driver cannot drive haphazardly, and a surgeon must exercise care when operating, a person who is in control of land or property must conduct themselves in a certain manner, in order to avoid injuring others. This is the core ethos of occupiers’ liability law. This means that a certain tension exists between the concept of personal autonomy and privacy, and the concept of public protection and welfare. The law of occupiers’ liability seeks to strike a balance between these two. Just as it would be undesirable to have the State dictate the colour of one’s house, or the flowers which must be grown in the front garden, it would be equally undesirable for a landowner to sew a minefield along their land’s border, to spite the postman and any wandering children that might come by.
Fortunately, much of the law on occupiers’ liability has a statutory basis. Unfortunately, a necessary body of case law has developed to clarify the content of those statutes.
Exam Consideration: Note the correct placement of the apostrophe in “occupiers’” - it might help to remember that the law isn’t dealing with one occupier, but many.
Occupiers’ Liability Act 1957
The Occupiers’ Liability Act 1957 dictates the duty that an occupier owes to lawful visitors (as per s.1(1)). All others are covered by the Occupiers’ Liability Act 1984 (discussed below).
There are, thus, three key definitions which are relevant to applying the Act. We must define who an occupier is, what their premises are, and who a lawful visitor is. This is logically intuitive - cases involving occupiers’ liability will always require a claimant, a defendant and location for the incident to have occurred.
It should be noted that OLA 1957 covers both personal injury and damage to property (whereas OLA 1984 only imposes a duty with regard to personal injury).
Defining ‘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 exercises an element of control over premises, as per Wheat v E Lacon & Co Ltd.
Case in Focus: Wheat v E Lacon & Co Ltd [1966] AC 552
The claimant was on holiday, and stayed in a pub with attached guest rooms. The pub was owned by the defendant company, which had hired a manager-in-residence to manage both the guest rooms and the front-of-house. In order to access his room, the claimant had to climb a steep, narrow staircase. The handrail stopped two steps short of the bottom, and there was no bulb in the light fitting, leaving it dark. The claimant was fatally injured whilst descending these stairs.
The claimant’s estate brought an action under the OLA 1957 against both the owning company and the manager, as dual occupiers. The primary question of law was then who was the proper party to the suit. The court held that both the owners and the manager were occupiers, applying a test of control. The owners retained both property rights, and the right to repair the premises as they saw fit, and hence had sufficient control over the premises to be an occupier. The manager was too an occupier - he was licensed to deal with the day-to-day running of the premises, and additionally physically lived on the first floor of the pub. Whilst both were occupiers, only the manager was held liable - the lack of lighting was held to be the key breach of duty, and that was the manager’s purview.
Lord Denning provides a concise rundown of who occupiers are, and the nature of their general duty:
"wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an ‘occupier’ and […] is under a duty to his ‘visitor’ to use reasonable care. In order to be an ‘occupier’ it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. […] He may share the control with others. Two or more may be ‘occupiers’. And […] each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control."
- Lord Denning, at 577.
Not only does Denning provide a definition for ‘occupier’, but he also describes it in terms which are intentionally similar to those of the neighbour principle of Donoghue v Stevenson. Thus, the basis for occupiers’ liability can be considered the same as the basis for general negligence - if you control a situation, you should do so in a way which promotes the safety of those who might be injured if care was not taken. Notably, an ‘occupier’ does not have to actually occupy (as in ‘live at’) premises in order to come under the Act. This is sensible - there are vast swathes of land in the UK which are controlled by various parties, even if they don’t live on the property personally. Because of the occupier principle, the law can be thought of as emphasising the practical reality of a situation.
Whilst the occupier definition doesn’t depend on legal ownership, legal owners will usually be regarded as having a degree of control over the property they own, as will thus be regarded as occupiers, as in Harris v Birkenhead [1976] 1 WLR 279.
The defendant council had served a compulsory purchase on a rented property, and the current tenant moved out. They gave the owner/landlord 14 days’ notice of their intention to take possession, but didn’t actually take physical possession of the property (i.e. send an agent to it) once the 14 days had passed. The claimant, a four-year-old girl, wandered off from a nearby playpark with a friend. The house was unsecured (unknown vandals had broken in), and the claimant entered the open front door, went upstairs, and was seriously injured when she fell from a window.
The council was held liable - although they had not physically occupied the property, they had legal ownership at the point the accident occurred. This legal control was enough to establish occupier status.
Defining ‘Premises’
Whilst defining ‘premises’ will be simply in many scenarios, there exist several peripheral issues which should be noted. s.1(3)(a) of the Act notes that it is not just land and buildings which might be considered premises, but vessels, vehicles and aircraft.
Of particular note is that temporary and mobile structures are included under this definition, such as scaffolding and ladders. See Wheeler v Copas [1981] 3 All ER 405. The claimant was a builder working on the defendant’s property when he used a ladder which the defendant had lent to him. The ladder was too flimsy, and broke, injuring the claimant. The court noted that the ladder came under the definition of premises, but that the defendant could not be considered the occupier of the ladder since he had no control of it at the time of the accident (the courts noted that the claimant was equally to blame for using a ladder he should have known was insufficient). Nevertheless, under employer’s liability the claim succeeded (but damages were reduced by 50% for contributory negligence.)
Defining ‘Lawful Visitors’
The law splits lawful visitors into three categories - those who have express permission to visit, those who have implied permission to visit, and those with a lawful right to visit.
The express permission category, on the whole, is relatively straightforward. It refers to those who are expressly invited onto premises by some means (so, a written invite or a simple beckoning by the occupier, for example). Occupiers can limit the extent of an express invite in terms of place, behaviour or time. So someone who is invited to a dinner party can attend with express permission, but they cannot refuse to leave at the end, smash the host’s windows and then climb up onto the roof. Someone who deviates from such instructions will be considered a trespasser, and thus will lose the protection of OLA 1957 (but will thus be covered by OLA 1984).
This principle can be seen in The Carlgarth [1927] P 93. The claimant’s ship filled with water and sank whilst travelling down the defendant’s channel of water. Whilst the ship was invited to use the channel, it had navigated in an irregular manner (causing the sinking.) Thus, because the ship was acting in a manner other than that which it had permission to, the occupier of the channel could not be held liable. In the now-famous words of Scrutton LJ at 97: “When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters, you invite him to use the staircase in the ordinary way in which it is used.”
The implied permission category includes those who lack express permission but whose presence is assumed to be unobjectionable to the occupier. This is a practical measure - each new resident in a road doesn’t write to their postman telling him he can deliver the mail. Similarly, it is one of the needs of society that people can be found and spoken to at their home address. This permission can also be limited, firstly, expressly (so, telling a delivery person to use a particular entrance or path). Secondly, there is a natural limitation which will apply for many forms of implied permission - so a postman will likely be considered to have implied permission to access the front of a property, but this permission will not extend to the postman going round the back of the property and playing on the owner’s swing-set for an hour (if he does, talk to your local post office.) Again, a visitor who exceeds the limitations of implied permission will be considered a trespasser.
Implied permission can come into being if an occupier knows that their land is being used by trespassers, but does nothing to prevent their activities, as in Lowery v Walker [1911] AC 10. A path running across the defendant’s field was used as a shortcut by several people to get to a nearby railway station. The defendant knew about this, and objected to it, but had not taken any steps to stop it from occurring. One day, he put a wild horse in the field, which attacked and injured the claimant. The courts held that since the defendant knew about the trespassers, but did nothing about it, this amounted to implied permission. The defendant was, thus, held liable.
The lawful right of entry category encompasses those who maintain a right to enter land or property regardless of the occupier’s wishes, under s.2(6) of the Act.
This includes police officers (with a warrant or chasing a fugitive), firefighters attending a fire, and public utilities employees attending to read meters etc. The root of such permission can usually be found in the relevant statute (such as the Police and Criminal Evidence Act 1984).
Those who enter property in accordance with a valid contract are held to be a lawful visitor under the act, and notably, if the relevant contract provides for a higher standard of care it will apply. So if a landowner hires builders, and agrees to being held strictly liable for any accidents that occur, then that duty of care will apply (in addition to the lesser one contained in the 1957 Act).
So as long as a visitor is a member of one of these categories, they will be protected by OLA 1957.
Occupiers’ Duty of Care
The relevant duty of care can be found in s.2(2) of OLA 1957. An 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.”
Whilst this is relatively similar to the negligence duty of care, the ability of the occupier to modify the exact nature of the duty should be noted. So an occupier who invites people into his house, but not the garden, has to ensure the reasonable safety for their visitors in the house but holds no such duty (at least under OLA 1957) with regard to their garden.
A distinction should also be noted that the duty is based around preventing injury in visitors, rather than ensuring that premises are objectively safe. Thus, whilst a deep pit presents an objective hazard, the occupiers duty is based on ensuring nobody is injured by it (for example, by putting up warning signs or fencing it off).
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.
s.2(3)(a) warns that children can be expected to be less careful than adults, and, by implication, that a greater level of care might be required to keep them from harm. The common law has sought to strike a balance between the responsibilities of parents and occupiers to prevent harm from befalling children. In Phipps v Rochester Corporation [1955] 1 QB 450 a 5-year-old was walking, with his 7-year-old sister, across some land owned by the defendant, which was under development. The 5-year-old fell into a trench dug for such purposes, and was injured. The court ruled that the occupying council was not liable - just as an assumption could be made that children would be less careful, an equal assumption could be made that young children would not be allowed to wander unsupervised onto unsafe land. Thus, to avoid shifting parental responsibility to landowners, the claim was denied.
However, if land holds either concealed danger, or something which might allure children to it, then a duty will likely be held to exist, as in Glasgow Corporation v Taylor [1922] 1 AC 44. A seven-year-old died after eating poisonous berries which were in a public park. Whilst the plants were faced off, there were no notices warning that the berries were poisonous. The court held that the defendant council was liable. The plants did not present an obvious danger, and so the council should have taken sufficient measures to draw attention to the concealed danger. It was also noted that an occupier who is aware that something on his land might act as an allurement to children (for instance, berries that look edible) should take greater care to prevent that risk from manifesting.
This ruling fits into the theory of parental responsibility - parents cannot be expected to protect against a danger they cannot see - and this goes doubly where such dangers are not adequately signposted.
Of course, not all minors are equal - older children are less susceptible to harm than younger children. Thus, the relevant level of care will depend on the nature of the risk and the age and awareness of the child involved. This principle can be seen at work in Titchener v British Railways Board [1983] 1 WLR 1427. The claimant, a 15-year-old girl, was walking with her 16-year-old boyfriend. They took a shortcut across a railway line and were both struck by a train, severely injuring the claimant and killing her boyfriend. They had accessed the railway through a gap in the fence, and there was a pathway worn up to the gap, suggesting that this was a point of repeated trespass. It was established that the defendant either knew of the gap, or would have known of it upon reasonable inspection. The defendant denied liability on the basis that it did not owe a duty of care towards a 15-year-old, who would have been aware of the risks they were running. This argument was successful - indeed upon cross-examination the claimant noted her knowledge of the risk and her choice to take the chance.
It can, thus, be concluded that the duty of care owed to minors scales with age - an occupier will owe a greater duty of care towards younger children, and this will slowly diminish over time, until the child becomes an adult (indeed, once a child reaches around 16, there aren’t many risks that they’ll be expected to react to differently than an adult).
At the opposite end of the spectrum lie skilled visitors, as noted in s.2(3)(b). Occupiers can assume that such visitors will have a greater awareness of risks and the relevant precautions that they should take - although importantly, this increased competence will only apply to risks whose nature matches the skill of the visitor. So an electrician will be owed a lesser duty of care by an occupier - but only in relation to risks of electric shock and similar.
This can be seen in General Cleaning Contractors Ltd v Christmas [1953] AC 180. The claimant was cleaning windows on the defendant’s building. He had climbed up onto a wall, and was using an open sash window for support. The top half of the window closed on his fingers, he lost his balance and fell, injuring himself. His action against the occupiers failed - it was held that as a professional, he should have known how to mitigate the risk he was running.
Exam Consideration: General Cleaning Contractors Ltd v Christmas also appears as a case in employers’ liability. It should be noted that the claimant’s suit against his employers succeeded, whilst his suit against the building’s occupiers failed.
It should be noted that just because a risk is of a nature which might be encountered by a skilled visitor, that does not dispel the entirety of the occupier’s duty of care - an occupier must still act reasonably. This is sensible - an occupier can’t invite an electrician to their property and then fail to tell them that the first light switch they use will likely kill them. Furthermore, an occupier will still have a duty of care towards skilled visitors if they are harmed by a risk, despite utilising their skill. Again, this is a sensible formulation of the law - there are certain risks which remain dangerous despite the application of skill. Consider a zoo-owner who negligently allows a grizzly bear to get loose. Just because the zoo-keepers are skilled at dealing with animals does not mean that the zoo-keeper can ignore liability for any injuries they might incur whilst corralling the animal.
This principle applies most often in the case of injuries incurred by firefighters, as in Salmon v Seafarer Restaurants Ltd [1983] 1 WLR 1264. A fireman was injured in an explosion whilst attending a chip shop fire. The defendant occupier argued that, with regard to a fireman attending a fire, his duty only existed to protect him against a special or additional risk above those he might ordinarily encounter as a result of his job. This argument was rejected - whilst the firefighter’s skills were relevant to determining the applicable duty of care, where it was foreseeable that he might be injured through the exercise of those skills, the occupier would remain liable. The claim therefore succeeded.
Warnings
As noted at the top of this section, the duty of care is based on protecting visitors, rather than removing hazards altogether. This means that the humble warning sign forms a key element of fulfilling the duty. However, the addition of a warning to a hazard will not absolve an occupier of liability. To return to the escaped bear example: a zoo owner telling his keepers ‘look out, you have to capture a bear!’ will not let him escape liability for bear-related injuries. As per s.2(4)(a), warnings only fulfil the occupier’s duty of care if they enable a visitor to be reasonably safe.
Exam Consideration: It should be noted that s.2(4)(a) refers to all warnings, rather than warning signs specifically. This means that an occupier could potentially give an effective verbal warning instead of posting a sign. Of course, this is impractical - since most hazards exist 24/7, erecting a sign is a far more practical solution than providing verbal warnings to every single visitor. Nevertheless, do not make the mistake of assuming that the absence of signage is proof of a negligent occupier - the key is that the warning is communicated, not the means of communication.
Since signs form the primary method of warning visitors, various principles have built up around their implementation. In general, a specific hazard will require a specific warning - so if the hazard is an electric fence, then an appropriate warning would be: ‘Caution: Electric Fence’, rather than just ‘Caution’. Visitors shouldn’t have to play ‘guess the hazard’ whenever they see a warning. Hidden dangers will require greater attention to be drawn to them (since by definition a visitor cannot be relied upon to avoid them of their own volition). Conversely, very obvious risks require no warning at all, as in Staples v West Dorset District Council [1995] 93 LGR 536. The claimant was badly injured when, crouched on a harbour wall to take a photo, he slipped and fell off of the wall, some 20 feet high. The harbour wall was covered in algae, and thus very slippery when wet. He brought an action against the defendant council, arguing that no warning signs were present regarding the danger of slipping. The claim failed - the dangers of slipping on algae on a harbour wall were obvious, and the claimant was aware of them. The defendant thus had no duty to warn.
Exam Consideration: Staples demonstrates how claimants will be expected to use their own common sense to self-warn of a hazard. All relevant circumstances should be considered when dealing with OWA 1957 problem questions - so whilst you could argue that the slip hazard was unobvious, it would be difficult to argue that an adult wouldn’t recognise that walls next to steep cliffs shouldn’t be mounted.
Staple also provides an example of how the effects of warning signs can be enhanced when used in combination with other safety measures - if there was a sheer drop at the cliff edge, without a warning sign or wall, the claimant’s argument may well have succeeded. It should also be noted that the effectiveness of a warning will depend on the concerned visitor - warning signs will do little to deter younger children, for example (although they do enhance their parents’ ability to keep them safe).
Independent Contractors
As noted in the chapter on vicarious liability, it is usually not possible to attribute the actions of an independent contractor to their employer. However, s.2(4)(b) provides a list of the situations in which an occupier will be held liable for a harm caused by an independent contractor. Firstly, where in was unreasonable to entrust the work to an independent contractor in the first place. This is to prevent an occupier from hiring independent contractors to deal with all aspects of their premises in order to avoid liability. Secondly, where the occupier failed to take reasonable steps to ensure the independent contractor was competent - for example, a landlord who hires an independent engineer to do gas safety checks will be expected to check that he is qualified. Thirdly, where the occupier has failed to take reasonable steps to check the work of an independent contractor. So if a school hires an independent contractor to clear ice off of steps, they will be expected to check that it has been done (as in Woodward v Mayor of Hastings [1945] KB 174). Conversely, an occupier will not be expected to check overly technical work, as long as they have taken the proactive measure of ensuring their contractor is reputable (as in Haseldine v Daw & Son Ltd [1941] 2 KB 343).
Defences
There are three commonly encountered defences when dealing with OLA 1957. The first is the defence of consent, as per s.2(5). Visitors will often be in situations in which they are aware of a risk, but choose to continue anyway - so a visitor who is aware of a wild horse, but decides to continue into its field regardless, may well be held to have consented to the risk.
Secondly, 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.
Thirdly, exclusion clauses (a matter of contract law) will often be employed by occupiers as a means to avoid liability.
Occupiers Liability Act 1984
OLA 1984 provides the basis for the duty that an occupier has towards those who are not lawful visitors. This includes trespassers - those who lack permission in the first place, as well as those who have overstepped the bounds of their permission. OLA 1984 also covers those who lawfully exercise a private right of way (this is a property law concept), and those who have their access covered by right to roam legislation.
Much of the content of OLA 1984 matches that of OLA 1957. The primary difference between the two is the conditions which must be met before a duty of care comes into existence.
Defining ‘Trespasser’
The exact definition for trespasser can be found in Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358 (facts unimportant, since the judgement is based on out-of-date law): “someone 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”.
The Duty of Care towards Trespassers
The relevant duty of care can be found in s.1(3) of the Act. It describes three criteria which must be met before a duty arises. Firstly, the occupier must be aware of the hazard, or have reasonable grounds to believe it exists. Notably, this is a subjective standard - so whether this condition is met will depend on an occupier’s actual knowledge of either a hazard or the symptoms of a hazard.
Secondly, the occupier must know or have reasonable grounds to believe that a trespasser is in the vicinity of that danger. Again, this is also a subjective standard, based on the occupier’s knowledge. The ‘reasonable grounds’ element is important here - an occupier does not need to be looking out their window at the time a trespasser is injured by a hazard. Instead, this condition is more about an occupier being aware of the phenomenon of trespassers on their land. Examples of such grounds include an occupier’s knowledge that people often use their field as a shortcut, or that children often use a broken fence as a way to access a building site managed by the occupier.
Thirdly, the relevant risk must be one which the occupier would reasonably be expected to protect against. This is not subjective, but objective - the courts will ask what the reasonable occupier would have done. This will depend a lot on the nature of the risk - a hidden and serious risk will require greater action than an obvious and mild one - contrast a minefield with some nettles. We’d expect a reasonable occupier to go to great lengths to protect trespassers from the former, but not the latter. The application of the duty of care can be seen in Young v Kent County Council.
Case in Focus: Young v Kent County Council [2005] EWHC 1342
The claimant, a 12-year-old boy, climbed up onto the roof of a school (via a ventilation flu) to fetch a ball. He then fell through a skylight and was injured. The defendant occupier was aware that the skylight was brittle, and that it represented a hazard. They were also aware that the roof was used as a meeting place by children - the fact that the roof could be accessed via the ventilation flu by children was even noted in a HSE report. Finally, the brittle skylight was a hazard which could have easily been protected against. The claim therefore succeeded, albeit with the claimant’s damages reduced by 50% on the basis of contributory negligence.
Exam Consideration: Be wary of being too harsh on trespassers when dealing with problem questions - yes, they probably shouldn’t be on the land when they’re injured, but the punishment for what is ultimately a pretty tame crime shouldn’t be death or injury - especially considering that the duty is only imposed when an occupier knows they are exposing trespassers to a hazard.
As with OLA 1957, greater lengths will be needed to protect children than adults - so pay special attention when it is known that children are trespassing. Nevertheless, the courts will rarely shy away from acknowledging the fact that there comes a point at which children should be aware of a risk they are taking. An example of this can be seen in Keown v Coventry Healthcare NHS Trust [2006] 1 WLR 953. The claimant, an 11-year-old boy, was seriously injured when he fell from a fire escape that he was climbing on. The claimant admitted at trial that he knew that his actions were dangerous, and that he should not have been climbing on the fire escape. The claim therefore failed. Notably, the courts also held that the fire escape was not a hazard (as per the first requirement to find a duty of care) - the fire escape was perfectly safe, it was the actions of the claimant which rendered it hazardous.
The same principle that was employed in the analysis of the hazard in Keown can also be seen to operate in Thomlinson v Congleton Borough Council [2004] 1 AC 46. The defendant occupier owned a large country park - an old sand quarry which had to be turned into a lake. The lake was dangerous for swimmers, and so notices were posted around the lake, and rangers were deployed to, amongst other duties, prevent swimming. The claimant dove into shallow water and broke his neck. The claim failed. The claimant was a self-acknowledged trespasser due to his choice of activity. The injuries were not due to a hazard, but instead due to the claimant’s own freely taken actions. The bench also noted, from a policy perspective, that the relevant preventative measure would have been to close the lake altogether - something which would have led to the closure of a number of similar locations around the country.
It can, thus, be seen that the courts will not define something as a hazard on the basis of it being involved in an injury, but instead will ask if it is of a generally hazardous nature. This will particularly be the case when injury is caused by an action taken by a fully autonomous claimant.
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