By Law Teacher
5.1 Occupiers’ Liability – Introduction
Welcome to the first lesson of the fifth topic in this module guide – Occupiers’ Liability! A person who is in control of land or property should conduct themselves in a manner so as to avoid injuring others. This area of law is now largely regulated by statute, with the duties owed to lawful entrants viewed differently from that owed to trespassers. Case law interpreting the status of the entrant onto the land and the identity of the occupier will need to be understood in order to apply the law in this area.
At the end of this section, you should be comfortable understanding the rules encapsulated in the Occupiers’ Liability Acts 1957 and 1984. You should have an appreciation for the case law interpreting these statutes. The section begins by defining an occupiers’ liability before introducing the Occupiers’ Liability Act 1957. Within this heading, the section addresses how to identify an occupier, premises and lawful visitors. The duty of care is then discussed, including in relation to special visitors, warnings, independent contractors and defences. The Occupiers’ Liability Act 1984 is then discussed and trespasser is defined. Finally, the duty of care is then elucidated.
Goals for this section:
- To be able to apply the law surrounding Occupiers’ Liability to a range of factual scenarios.
Objectives for this section:
- To be able to explain the duty owed by occupiers to lawful visitors to their property.
- To understand the duty owed by occupiers to unlawful visitors to their property.
- To appreciate the distinctions between children and skilled visitors.
- To know some of the possible defences to liability.
5.2 Occupiers’ Liability Lecture
A person who is in control of land or property must conduct themselves in a certain manner, in order to avoid injuring others. Much of the law on occupiers’ liability has a statutory basis. A necessary body of case law has developed to clarify the content of those statutes.
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.
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 [1966] AC 552.
Notably, an ‘occupier’ does not have to actually occupy (as in ‘live at’) premises in order to come under the Act.
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.
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.
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 expresspermission category refers to those who are expressly invited onto premises by some means. Occupiers can limit the extent of an express invite in terms of place, behaviour or time. 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 implied permission category includes those who lack express permission but whose presence is assumed to be unobjectionable to the occupier. This permission can also be limited, expressly or by a natural limitation which will apply for many forms of implied permission. 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.
- 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. 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 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. A distinction should also be noted that the duty is based around preventing injury in visitors, rather than ensuring that premises are objectively safe.
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, 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.
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.
- 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. This can be seen in General Cleaning Contractors Ltd v Christmas [1953] AC 180.
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 principle applies most often in the case of injuries incurred by firefighters, as in Salmon v Seafarer Restaurants Ltd [1983] 1 WLR 1264.
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. As per s.2(4)(a), warnings only fulfil the occupier’s duty of care if they enable a visitor to be reasonably safe.
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 – 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.
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. Secondly, where the occupier failed to take reasonable steps to ensure the independent contractor was competent. Thirdly, where the occupier has failed to take reasonable steps to check the work of an independent contractor.
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.
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.
As with OLA 1957, greater lengths will be needed to protect children than. 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.
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.
5.3 Occupiers’ Liability Lecture – Hands on Examples
Question:
Leopold, a 17-year-old boy, decides one day to break into a local abandoned warehouse. The owners moved out several years previously to new premises, and secured the premises before they left. In order to enter the warehouse, Leopold has to remove a heavy metal grill using some tools.
After living in the warehouse for a few days, Leopold has had a chance to explore the warehouse thoroughly, noticing that the back balcony attached to the rear of the warehouse is rusted and rickety.
Leopold decides to host an illegal rave, and invites a number of local teenagers to it.
The party is in full swing when one of Leopold’s friends, Kyle, decides to go out for a smoke. He is on the upper level of the warehouse, and sees the door to the back balcony. He walks onto it, and under his weight it collapses. He falls from some 10ft, a breaks his leg. His friends cart him off to hospital.
Leopold finds it annoying to have to walk all the way through the warehouse to get to the upper level, and tells another friend, Erika, that there are some old wooden ladders lying about next to the warehouse. Leopold has tried to use one of these ladders once before despite them being chained up and labelled with a large sign ‘do not use – for waste only.’ Leopold broke the chain, discarded the sign, and tried to use one of the ladders – it broke under his weight. Erika sets up the ladder where the balcony used to be, but whilst climbing up the ladder breaks, and Erika falls, breaking her arm. Having just arrived back from taking Kyle to hospital, Erika too, is taken away.
Outside of the warehouse is a large pit, used to dispose of industrial waste. It is unfenced and not signposted. In an effort to take the perfect selfie, another partygoer, Kenneth, steps backwards and falls over the edge, he dies from the fall, but nobody discovers him until the day afterwards.
Having not heard from Kenneth the day after, his parents eventually call the police, who discover his body in the waste pit after investigating his whereabouts. The police note in their report that they have seen teenagers hanging around near the pit before – it is a popular meeting place. They have spoken to the owners about repairing the external fence to stop these gatherings from occurring, but nothing has come of it.
Answer:
The first injury is Kyle’s broken leg. There are two concurrent occupiers here, ascertained via the control principle of Wheat v E Lacon & Co Ltd [1966] AC 552. Leopold is an occupier because he (temporarily) lives in the warehouse, and has invited others to join him for the rave (which suggest occupancy). The owners of the warehouse also have a level of control – they have legal ownership, and despite not being physically present, this constitutes a form of occupancy, as in Harris v Birkenhead [1976] 1 WLR 279.
Kyle is injured by the state of disrepair of the balcony. As he is a trespasser as far as the owners are concerned, their duty is covered by OLA 1984. Under s.1(3) of the Act, an occupier must have knowledge (or reasonable belief) that a trespasser is in the vicinity of the relevant hazard. This is not the case, since the owners had secured the facility before they left – indeed, Leopold needed tools to even access the inside of the building, and thus, the balcony. Furthermore, this blocking of access could be considered a reasonable attempt to secure the balcony.
Kyle has express permission to be on the property from Leopold – he has been invited. Leopold has arguably failed to fulfil his duty as an occupier under s.2(2) of OLA 1957 – he was aware of the danger of the balcony, and did nothing to prevent anyone from accessing it.
The second injury is Erika’s broken arm. The two occupiers remain the same, as does Erika’s status as trespasser in the case of the owner or visitor with express permission in the case of Leopold.
Under Wheeler v Copas [1981] 3 All ER 405 temporary structures such as ladders constitute premises. It can be argued that the owners have knowledge of the dangers the ladders constituted, and that trespassers had been accessing the outside of the warehouse where the ladders are located. However, they have arguably discharged their duty under OLA 1984 to protect them from the danger the rickety ladders constituted – the danger was signposted and chained to prevent use.
Leopold on the other hand, is fully aware of the danger, having been directly exposed to it himself. In contrast to the owner’s actions, he actively made the hazard of the ladders worse, removing the warning sign, making them available to use, and endorsing their use. He is, thus, likely liable for Erika’s injuries.
Kenneth’s death is slightly more complicated. The warehouse owners know they have a large open, unguarded pit on their land, and via police contact, know that teenagers like to gather on the land close to it. They have taken no measures to deal with the hazard the pit represents. Thus, under OLA 1987 s.1(3) Kenneth’s estate likely has a case against them. This can be likened to the knowledge that children gathered on the roof in Young v Kent County Council [2005] EWHC 1342.
Under the same logic, the same can be said of Leopold, but under OLA 1957 2(2). It should be noted that both parties may well argue that Kenneth contributed to his own demise by not being careful, and that he should have been aware of the risk and protecting himself against it, as in Staples v West Dorset District Council [1995] 93 LGR 536. Furthermore, the warehouse owners are likely to argue that Leopold’s contribution to Kenneth’s death was more prominent than their own, since he invited him to the warehouse in the first place.