UGANDA CHRISTIAN UNIVERSITY

SCHOOL OF LAW

NEGLIGENCE and STRICT LIABILITY

LLB 2 - Semester 2, 2024

Daniel Kisa
Lecturer
 E. OCCUPIERS LIABILTY

Occupiers’ liability concerns the liability of an ‘Occupier’ of land or premises for the
injury or loss or damage to property suffered by claimants while on the Occupier’s
‘premises’. Therefore it must immediately be distinguished from damage caused by the
defendant’s use of his land, which is suffered by the claimant outside of the Occupier’s
land.

Occupier’s liability was developed before the modern law of negligence took its previous
form in 1932 with the decision in Donoghue v Stevenson.

Common law imposed a duty of care on an Occupier of premises in respect of four

classes of people, invitees, licensees and trespassers and those who come in respect of
contract. The standard of care expected of the Occupier in respect of the above
categories differed.

a) According to Winfield and Jolowich, the highest standard was owed to the one who
entered the premises in pursuance of a contract. The Occupier had a duty to
exercise reasonable care and skill to make the premises safe.
b) Second it was the invitee, who entered the premises on business of interest to
himself and the Occupier. The Occupier was under a duty to prevent damage from
unusual dangers of which he knew or ought to have known.
c) Third was the licensee, who entered with the express or implied consent of the
Occupier. The Occupier had a duty to warn him of any concealed dangers of which
he actually knew.
d) Lastly there was a trespasser who had no consent to enter the premises. The
lowest standard of care was expected of the Occupier in the sense that he was
only expected to abstain from intentional or reckless injury to him.

The distinction between contractual entrants, invitees, and licensees was very
pronounced in respect of injury as a result of the state of the premises.

The Courts were of the view that the distinction between the classes only applied where
the injury was as a result of the state of the premises. Where the injury resulted from an
activity being carried out on the premises the general law of negligence applied and
there was no distinction. This state of law was reformed by the Occupiers Liability Act of
1957.
APPLICATION IN UGANDA

Wavah Holdings v Uganda Motors

The Act abolished the distinction between licensees and invitees and the occupancy
duty and activity duty, S.1

“The rules in the Act shall have effect in place of the rules of common law, to regulate the
duty which an Occupier of premises owes to his visitor in respect of dangers due to the
state of the premises or to things done or omitted to be done to the premises.”

The Act regulates liability to visitors which concerns the old categories of invitees and
licensees. Common law covers liability to trespassers as well as the act of 1984.

WHO IS AN OCCUPIER OF PREMISES?

The Act does not define an Occupier and the rules of common law apply to determine
whether one is an Occupier or not.
In the case of Wheat v. E. Lacon & Co. Ltd [1966] AC 552:
The word Occupier was held to denote a person who has sufficient control of premises.
The person need not have exclusive or entire control of the premises. The fact that a
person has immediate supervision or default control is sufficient to make him an
Occupier of premises. There is no requirement that the person has any estate in the
land in question to be an Occupier.

The issue whether one is an Occupier or not is a question of fact which depends on the
circumstances of each case especially on the nature and extent of the occupation or
control which a party has over the premises.

A Contractor may qualify as an Occupier of premises.

 Visitors.

These are persons who are present on the premises with the express or implied consent
of the Occupier of the premises. These include persons who enter the premises on the
basis of a right granted by law. Permission to enter open premises may be express or
implied. The presence of implied consent is a question of fact to be proved by the one
who seeks to rely on it. Where the premises are open to the public there is implied
consent for persons to enter upon such premises e.g. shops etc.

An invitation to the general public is an implied invitation to particular individuals.

In Bakaboineki v. Bunyoro District Administration (1970) EA 310;

The defendant’s predecessor in title had invited the general public to celebrations to
mark the return of the lost counties of Bunyoro Kitara. The plaintiff attended the
celebrations and while the celebrations were going on he went off on his own and fell in
an open pit latrine.

The Court held that the open invitation to the general public in form of a circular was
an implied invitation to the plaintiff and as such he was an invitee who was owed a duty
of care under the law.

Persons seeking to see the Occupier eg people soliciting for charitable contribution are
visitors unless they are expressly forbidden from entering the premises.

In the old case of Lowery v Walker 1911 AC 10, the defendant owned a farm. The public
used a short cut through his land to reach the railway station for 35 years. On some
occasion he had confronted them but did not take any legal proceedings. The plaintiff
was attacked by a savage Horse while using the short cut through the defendant’s land.
The Court held the Occupier by his acquiescence in the use of his premises by
trespasser had impliedly consented to such use and was liable to the plaintiff.

However, this position was changed by the decision in Edwards & anor v. Railway
Executive [1952] AC 737; Goddard L.J “Repeated trespass itself confers no license, how
is it to be said that the Occupier has licensed what he cannot prevent? ...”

The plaintiff aged 9 years got through a fence dividing a recreation ground and the railway.
He climbed up the embankment to fetch a ball on the other side of the railway and was
injured by a passing train. For many years, children had climbed through the fence by
breaking the wire to slide down the embankment and the railway executive had repaired it
whenever he saw the damage. The Court held that repeated trespass does not confer a
licence and the boy was a trespasser.
The duty owed to a visitor does not extend to parts of the premises which he has no
permission to go.

In Bakaboineki’s case, the Court held that by fearing the open ground and crossing the foot
path the plaintiff was a trespasser.

Permission to enter the premises may be granted by an employee of the Occupier acting
in the scope of duty. Even where the employee is acting contrary to instructions, he may
be acting in the scope of employment according to the rules of vicarious liability.

Stone v Taffe 1974 WLR 575

An invitation to enter premises may be limited. In cases of implied consent, it applies to

areas where the visitor may reasonably be supposed or likely to go.

Mersey Docks and Harbour Board v Procter

Lord Care. “When you invite a person into your house to use the stairs, you do not invite
him to slide down the barristers”

Bakaboineki

Making wrongful, dangerous and improper use of premises made him a trespasser.

However, an involuntary encroachment outside the premises caused by negligence of

the Occupier does not turn an invitee into a trespasser.

Where an invitee is a child the Courts impose a higher standard on the Occupier. Where a
child trespasses as a result of the Occupier’s negligence he is owed a duty of care as an
invitee.
Under common law, the standard of care required of an Occupier depended on the
nature of permission granted. Where the plaintiff was an invitee, the Occupier was
under a duty to protect him from unusual dangers of which he was aware or ought to be
aware.

Where the plaintiff was a licensee on the premises pursuant to implied permission the
Occupier’s duty was limited to warning him of concealed danger of which he was aware.

This distinction was highlighted in Horton V London graving Dock

The distinction was removed by the 1957 Act in England and in Uganda Ssekandi
advocates for similar treatment in Kibedi v. Uganda Sugar Factory Ltd [1978] HCB 195.

There is now a general duty to visitors which is to ensure that the premises are
reasonably safe for the purpose for which permission for their use was given. In
determining whether the duty has been complied with the following factors should be
taken into account.

● The gravity and likelihood of the probable injury

● The circumstances of entry onto premises

● The nature of the premises

● The knowledge which the Occupier ought to have of the presence of property or
persons on the premises

● The age of the entrants

● The ability of entrants to appreciate risks

● The burden of eliminating the danger as contrasted with the magnitude of the risk
of the injury.

Knowledge of the danger by the Occupier is no longer the determining factor when
dealing with Occupier’s liability. Where the danger is simple, apparent knowledge of its
existence on the part of the visitor is sufficient. Also where the Occupier has given
notice to the visitor of the existence of the danger, he discharges his duty to him.
In Roles v. Nathan [1963]1 WLR 1117:
Court held that where an Occupier of premises warned the Chimney sweeper of fumes
he was not liable as Occupier for injury as a result. However, such notice must be
sufficient to ensure the reasonable safety of the entrant on the premises.

Where the visitor does not have the capacity to appreciate the presence of the danger or
avoid it, the Occupier is under a duty to remove it entirely in order to discharge his
duty.

In order to escape liability, the Occupier must prove that the visitor was able to
appreciate both presence of the hazard and the magnitude of the risk posed by it. The
hazard must also be present to the visitor’s mind at the time he is required to protect
himself. Where the visitor willingly accepts risks the duty of the Occupier is discharged.
The visitor must have done something that is tantamount to contributory negligence.

An Occupier may also escape liability in respect of a firefighter or policeman where the
latter assumed a specific risk. This is contrary to the United States where firefighters
cannot recover even if the fire started intentionally. Ogwo v Taylor

In Ashdown v. Samuel Williams & Sons [1957]1 QB 409:

The defendants posted a large notice to the effect that persons entering and crossing
railway lines did so at their own risk and would not recover for negligent injury. An
employer of a nearby firm was negligently injured by shunting on her way to work. The
Court held that she had consumed the risk and could not recover.

The Occupier also has a duty to control the entrants from his premises for the safety of
others.

In Glasgow Corp v. Muir [1943] AC 448; [1943]2 All ER 44:

A manager of a tea room who allowed picnickers to carry a tea Can was held liable when
it scalded other entrants on the premises.
a) LIABILITY TO CHILDREN.

The common law could be particularly harsh when it was applied to child trespassers
who might have limited understanding, either of the risks confronting them, or indeed
the nature of trespass itself.

In Addie v Dumbreck [1929] AC 358:

Children frequently played on colliery premises and near to dangerous machinery and
were turned away by the owners. When one child was injured the Court held that there
was no liability on the Occupier since the child was a trespasser.

Because of the growth of more dangerous premises and taking into account the
difficulties of making children appreciate danger many attempts were made to change
the law and this was finally achieved with the establishment of the so- called ‘common
duty of humanity’.

In British Railways Board v Herrington [1972] AC 877:

A six- year-old was badly burned when straying on to an electrified railway line, through
vandalized fencing. It was well known that the fences were often broken and that small
children played near the line and the railway board regularly repaired it. The House of
Lords, using the Practice Statement, established the ‘common duty of humanity’. This
was an unlimited duty owed to child trespassers when the Occupier knew of the danger
and of the likelihood of the trespass, and had the skill, knowledge and resources to
avoid an accident.

The Court must also take into account the degree of care owed to children. An
Occupier should be prepared for children to be less careful than adults and should
guard them against all ordinary risks. The standard of safety due to children must be
applied with due regard to their physical power and mental facilities which the Occupier
knew or ought to have known they possessed. A child may see a warning but is
incapable of comprehending it.

In Moloney v Lambeth LBC [1966] 64 LGR 440:

A four- year-old fell through a gap in railings guarding a stairwell and was injured. An
adult could not have fallen through the gap so such an injury would have been
impossible. Nevertheless it was dangerous to a child and a child in any case may have
been incapable of appreciating the risk involved. The Occupier was held to be liable by
the Court.

Allurements. (common law)

Children in any case are taken to be unlikely to appreciate risks in a way that an adult
would and indeed might even be attracted to the danger. As a result an Occupier should
do nothing to attract the child to the danger and must guard against any kind of
‘allurement’ which places a child visitor at risk of harm.

In Glasgow Corporation v Taylor [1922] 1 AC 44:

A seven- year-old child ate poisonous berries in a botanical garden and died as a result.
The shrub on which the berries grew was not fenced off in any way. The Court held that
the Occupier should have expected that the berries might naturally attract a young
child’s interest and the Occupier was liable.

In Latham v. Johnson & Nephew Ltd [1913]1 KB 398:

The Court held that the Occupier is also under a duty not to lay traps to allure children
to trespass; in order to qualify as an allurement or trap it must be both fascinating and
fatal. It is also not enough that the object in question is attractive; it must also have a
character of hidden danger. Nevertheless, the mere existence of an allurement on its
own is not sufficient ground for liability.

In Liddle v Yorkshire (North Riding) CC [1944] 2 KB 101:

A child was injured when he jumped off a soil bank while showing off to his friends. The
Court held that, despite the obvious allurement, the defendant was not liable since the
Occupier had warned the child away from the bank on numerous previous occasions.

Even though an allurement exists there will be no liability on the Occupier if the damage
or injury suffered is not foreseeable. As with negligence generally it is the general type of
damage that must be foreseen rather than the specific circumstances in which the
damage occurs.
In Jolley v London Borough of Sutton [2000] 3 All ER 409, HL; [1998] 3 All ER 559, CA:
The Council failed to move an abandoned Boat from an Estuary shore for two years.
Children regularly played in the boat and it was clearly a potential danger. When two
young boys of 14 jacked the boat up to repair it, the boat fell on one, injuring him. In
the Court of Appeal the action for compensation failed, since it was held that, while the
boat was an obvious allurement, the course of action taken by the boys and therefore
the specific type of damage was not foreseeable. The House of Lords reversed this. The
House felt that it was an obvious risk that children playing on or near the Boat might be
injured. It was sufficient for liability that some injury was foreseeable.

Parental responsibility for young children. (Common law)

In any case the Courts will sometimes take the view that very young children should be
under the supervision of a parent or other adult. In this case the Occupier might find
that he is relieved of liability.

In Phipps v Rochester Corporation [1955] 1 QB 450:

A five- year-old child was injured having fallen down a trench dug by the defendant
Council where the child frequently played. The defendant was not liable because the
Court concluded that the parents should have had a child of that age under proper
control.
In his judgment Devlin J explained the position:-

‘the responsibility for the safety of little children must rest primarily upon the parents;
it is their duty to see that such children are not allowed to wander about by
themselves, or at the least to satisfy themselves that the places to which they do
allow their children to go unaccompanied are safe for them to go. It would not be
socially desirable if parents were, as a matter of course, able to shift the burden of
looking after their children from their own shoulders to those persons who happen to
have accessible bits of land.’
b) LIABILITY FOR THE TORTS OF INDEPENDENT CONTRACTORS

Where the visitor is a Contractor, the Occupier, may assume that he appreciated the
dangers that are ordinarily incidental to the job. He should also satisfy himself of the
safety of the site and determine how he will perform his tasks. An Occupier would not
be liable where the Contractor himself chose an unsafe manner of carrying out his
duties and injured his employer.

In Ferguson v. Welsh & ors [1987]3 All ER 77:

It was determined that where the Contractor or entrant knows more about the work for
which he requires the premises than the Occupier, the Occupier should ensure that it is
suitable for such work.

Reasonably hiring a Contractor.

It must be reasonable for the Occupier to have entrusted the work to the independent
Contractor in the first place. This in itself depends on the character of the Occupier and
also on the nature of the work done. For example, much less might be expected of a
private householder than of a business which might already employ its own specialists.
The duty of an Occupier is to take reasonable steps to ensure the safety of the premises
for the lawful entrants therein. He may delegate the duty to make it safe to an
independent Contractor.

In Haseldine v Daw & Son Ltd [1941] 2 KB 343:

The issue was the death of the claimant following the negligent repair of a Lift by the
independent Contractors. The Occupier was not liable because repair of a Lift is a highly
specialist activity and could not be expected of the Occupier. The Court accepted that
the Occupier had discharged his duty by hiring a supposedly competent Contractor to
carry out the work.

Where, he delegates he is not liable for negligence of the independent Contractor-

Haseldine v CA Dan & son. However, he must take reasonable care in selecting and
supervising the independent Contractor.
Davie v New Merto.
This is limited to technical aspects of the premises that he is not expected to repair on
his own. Some authorities hold that he is under a non-derogable duty for those aspects
which are not technical and which he should undertake himself.

In Viral Housing Community (1976) 1 NSWLR 388:

CoA held that the cleaning of stairs was non-technical and would not be delegated
occupancy and activity duty.

Under common law there is also a duty in respect of activities that are carried out on
the premises of the Occupier as opposed to the condition of the premises as such.

The Contractor must be competent to carry out the work

For the Occupier to avoid liability, the Contractor that he hired must be competent to
carry out the actual task required. Again there is little adequate check that somebody
like a householder can make. They might improve their chance of avoiding liability as an
Occupier by using Contractors recommended by a trade association etc.

In Ferguson v Welsh [1987] 3 All ER 777:

Demolition Contractors were hired by the local authority and also employed the
claimant to complete the work. When the claimant was injured as a result of their
unsafe working systems the Court held that the local authority was liable.
 c) TRESPASSERS

Common Law rule

At common law, the original rule was that there was a mere duty not to deliberately or
recklessly injure a trespasser (Addie v Dumbreck (1929)).

There was a change of policy in the case of British Railways Board v Herrington (1972) when
it was held that an Occupier was under a duty to act humanely towards trespassers. This
was owed when a reasonable man knowing the physical facts which the Occupier actually
knew would appreciate that a trespasser’s presence at the point and time of danger was so
likely that, in all the circumstances, it would be inhumane not to give effective warning of
the danger.

A trespasser is anyone who enters premises without consent of the Occupier or some
privilege allowing him to enter thereupon.

The question of consent is one of fact to be judged objectively.

Any conduct that gives the impression that others may enter the premises on the part of
the Occupier amounts to implied consent. In order to prevent implied consent the
Occupier must take steps to prevent intrusions although he must not go to the
extremes.

In Edwards v Railway Executive, a person who enters premises as a lawful visitor may
become a trespasser by exceeding the limit of his permission outstaying his welcome
or making improper use of the premises.

In Bakaboineki, Pearson v Coleman Bros, a little girl strayed from the circus to the Zoo
and got mauled by a lion. She was held to be a licensee.

An Occupier, if he wishes to limit the scope of the permission to enter upon his
premises should do so clearly. Under common law, the Occupier’s duty is only to
prevent reckless and intentional harm being inflicted on the trespasser. The Courts
devised the doctrine of allurements in respect of children in order to allow plaintiffs of
tender years to recover even when they exceeded the limits of their invitations.

Eventually the House of Lords adopted the standard of humane man with financial and
other limitations to judge the standards of an Occupier in respect of trespassers.
This was devised in the case of British Rlys Board v Herrington. This was intended to be
an intermediate position between the standard of a reasonable man and the old
standard of recklessness on the part of the Occupier.

There was no duty to prevent trespass on the part of the Occupier. Similarly the
trespasser did not have to prove any likelihood of trespass in order to recover. Although
the Occupier had no duty to put any safeguards he had such a duty to trespassers of
tender years.

In the UK the position of trespassers is subject to 1984 Occupier’s Liability Act.

The duty of common humanity propounded in the case of Herrington required the
Occupier to take reasonable steps to ensure that the trespasser is not injured. The
Occupier must be aware of the danger concerned. The Occupier discharges his duty by
giving sufficient warning of the presence of the danger in question. He should not do
more. In determining the standard of care required of an Occupier the same precautions
are expected in respect of child trespassers as required in respect of lawful visitors.

The Occupier still has the defence of volenti non-fit injuria; Where a trespasser is
injured as a result of his own act as opposed to recklessness on the part of the
Occupier- he cannot recover.

The nature of trespass is also relevant in determining the nature of precautions to be

expected of the Occupier. He does not have any duty to take any precautions where the
trespasser is criminal.

In Robert Addie and Sons v Dumbrek 1929 AC 885,

The duty of the Occupier is in respect of the state of the premises and doesn’t extend to
liability for activities that may be carried out on the premises. However, it may extend to
activities that are part and parcel of the occupation-Herrington, Videan v British
Transport Commission
d) LIABILITY FOR DEFECTIVE PREMISES.

There are, however, other categories of people who may be fixed with liability for the state
of the premises and damages that occur as a result of the defective state of the premises.

Landlords

It is possible that a landlord might retain control of certain parts of premises. If the test
in Wheat v Lacon is satisfied then the landlord may be classified as an Occupier.

The early common law was based on the contract between landlord and tenant and the
maxim caveat emptor was applied so that there was general immunity from negligence
actions. This has been reaffirmed.

In Rimmer v Liverpool Corporation [1984] 2 WLR 426, there was held to be no duty of
care owed by a landlord to ensure the safety of the premises at the time of letting. The
claimant was injured when he put his hand through a glass panel but there was no
liability on the landlord.

Builders

The expression ‘builder’ has been used in the widest sense to include all persons
involved in the construction or sale of a building. In this way the term might arguably
include Surveyors, Architects and others. Where a builder merely worked on premises
he may in any case face liability under straightforward Donoghue v Stevenson
principles. However, where the builder was also owner and sold on, then traditionally
there was no liability because of the doctrine of Privity of contract.
e) THE NATURE OF THE DUTY

The character of the duty is to ‘take such care as is reasonable in all the circumstances’ to
prevent injury to the visitor ‘by reason of the danger concerned’.

So the standard of care is clearly an objective standard based on negligence. What is

required of the Occupier depends on the circumstances of each case. The greater the
degree of risk the more precautions the Occupier will have to take. Factors to be taken
into account include the nature of the premises, the degree of danger, practicality of
taking precautions and of course the age of the trespasser.

In Tomlinson v Congleton Borough Council [2003] 3 WLR 705:

The local authority owned a park including a lake. Warning signs were posted
prohibiting swimming and diving because the water was dangerous, but the Council
knew that these were generally ignored. The Council decided to make the lake
inaccessible to the public but delayed start on this work because of lack of funds. The
claimant, aged 18, dived into the lake, struck his head and suffered paralysis as a result
of a severe spinal injury. His claim under the 1984 Act was initially rejected by the trial
judge but succeeded in the Court of Appeal. The Court of Appeal was satisfied that all
three aspects of s1(3) were satisfied. The Court felt that the gravity of the risk of injury,
the frequency with which people were exposed to the risk and the fact that the lake
acted as an allurement, all meant that the scheme to make the lake inaccessible should
have been completed with greater urgency.
However, the Court reduced damages by two- thirds because of the contributory
negligence of the claimant.
The House of Lords, however, accepted the Council’s appeal. It based its decision on
three reasons.
1) The danger was not due to the state of the premises (although Lord Hutton felt
that because the water was so dark and murky it was).
2) The House felt that it was not the sort of risk that a defendant should have to
guard against but one that the trespasser in fact chose to run to.
 3) Finally, the House felt that the Council would not have breached its duty even in
the case of a lawful visitor since the practicality and financial cost of avoiding the
danger was not such that a reasonable Occupier ought to be obliged to go to such
ends.

The mere fact that the Occupier has taken precautions or fenced the premises does not
in itself indicate that the Occupier knew or ought to have known of the existence of a
danger.

GENERAL DEFENCES

a) The claimant’s contributory negligence. Unlike voluntary assumption of risk

which is a total defence, contributory negligence is a partial defence which allows the
Court to apportion blame between the claimant and the other parties.

b) Volenti non fit injuria – consent. The visitor must have also freely and
voluntarily accepted the risk. In such circumstances an Occupier will not be liable for
accidents caused to adults who are fully warned and ought to take responsibility for
their own safety when they engage in obvious risks.
In Simms v Leigh RFC [1960] 2 All ER 923, there was no liability to a rugby football
player when the injury was sustained within the normal rules of the game.

In Ratcliffe v McConnell [1999] 1 WLR 670, A warning notice at the shallow end of a
swimming pool read: ‘Deep end shallow dive’. The pool was always kept locked after
hours and the claimant knew that entry was prohibited at this time. He was a
trespasser and when he was injured while diving into the shallow end his claim failed.
The Court held that he was aware of the risk and had freely accepted it.

Mere knowledge of the risk is also insufficient, it must actually be accepted by the
visitor and the knowledge must be sufficient to make the visitor safe.

In White v Blackmore [1972] 2 QB 651, General knowledge that ‘jalopy racing’ was a
dangerous activity did not mean that the claimant had accepted inadequate safety
arrangements. The Court held the Occupier liable.
If the claimant has no choice but to enter the premises then he cannot be taken to have
accepted the risk and the defence will be unavailable.

In Burnett v British Waterways Board [1973] 2 All ER 631,

A claimant entering the defendant’s dry dock on a barge had no choice but to be there and
so volenti was unavailable as a defence.

In summary the duty of common humanity is to the effect that although the Occupier
was not obliged to institute checks for the presence of trespassers or dangers, a duty
arose if on the facts of which he knew there was a likelihood of serious harm to the
trespasser to make it inhuman to fail to take such steps. The duty takes into account
the resources of the Occupier.

The duty is limited to personal injury.