Lecture 8:

Occupiers’ Liability
Dr Isilay Taban
 What is Occupiers’
Liability?

• Occupiers’ Liability: deals with risks and harm

emanating from dangerous places.
• The occupier of these premises may be liable if
they have not taken reasonable care to ensure
that those entering their premises are safe.
 Occupiers’ Liability

Occupiers’ Liability Act 1984

Occupiers’ Liability Act 1957
It is concerned with the duty
It is concerned with the duty
owed to people other than
of care owed to all lawful
lawful visitors-unlawful
visitors
visitors
 What are the
differences
Question: between occupiers’
liability and General
Negligence?
The Overlap with Negligence
Occupiers’ Liability/ Negligence
There may be situations where the common law of
negligence and occupiers’ liability can overlap. For
example, in Sutton v Syston Rugby Club [2011].
The question is whether the harm caused by the
state of the premises or an activity done on those
premises. For example, Keown v Coventry NHS
Healthcare National Trust [2006].
Key terms that we need to define
before we move on:

Occupiers Visitor Premises

 • There is no statutory definition of ‘occupier’ in either Act.
• OLA 1957 s1(2) states that the rules apply ‘in consequence of
a person’s occupation or control of premises’.
• Wheat v Lacon & co Ltd [1966] HL - physical possession of
the property is not determinative of status as an occupier,
not is complete control of the premises. Key is whether there
Who is an is a sufficient degree of control.
• Harris v Birkenhead Corporation [1975] – occupier not in
occupier? physical possession, but had ability to control/secure
premises.
• Can be more than one occupier – Wheat, Collier v Anglian
Water Authority (more than one occupier with control
divided functionally), AMF international Limited v Magnet
Bowling (joint occupiers with sufficient control)
Who is a • Section 1(2) OLA 1957- ‘the person who are to be treated as… visitors
are the same.. As the person who would at common law be treated as
visitor? … invitees and licensees’.
• The key question will be:
• Does the visitor have express or implied permission to be on the
premises?
• If so, they will be a visitor
• The permission can be express or implied
• Permission is rarely unlimited and an occupier can restrict the duty
they owe
• ‘When you invite a person into your house to use the staircase, you do
not invite him to slide down the bannisters’ The Calgarth [1927] Per
Scrutton LJ [110]
• If a visitor goes beyond the scope of their permission to be on the
premises then they become a non-visitor/trespasser
• Implied permission – driveways, public spaces etc. Can also include
allurement – Jolley v Sutton London Borough Council [2000]
What are Premises?
• Section 1(3) of the OLA 1957 – ‘any fixed or moveable structure,
including any vessel, vehicle or aircraft’.
• OLA 1984 s 1(2) refers us back to the OLA 1957
• Abandoned boat – Jolley v Sutton London Borough Council
[2000]
• Temporary wall – Gwilliam v West Hertfordshire Hospitals NHS
Trust [2002]
• Beach – Proctor v Young
• Machine – Bunker v Charles Brand
• OLA 1957 applies where the harm was caused by a danger due
to the state of the premises or by things done or omitted to be
done on them – s1(1).
CLAIMS UNDER THE OLA 1957

If a claimant can prove that

they have suffered recognizable
Claims can be made for
loss on occupiers’ premises, and
personal injury or property
that they were a visitor, then
damage
we know that the correct
statute would be the OLA 1957.
 • Section 2(1) of the OLA 1957 states
that ‘an occupier of premises owes
the same duty, the “common duty
of care” to all his visitors…’
Duty of Care • This means that a visitor is owed an
automatic duty of care under the
OLA 1957. (this is different under
the 1984 Act)
 • Once you have established that a duty is owed under the 1957
Act, you need to consider the standard of care expected of an
occupier.
• S 2(2) – ‘The common duty of care is a duty to 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
What is the purposes for which he is invited or permitted by the occupier
to be there’
Standard of • Emphasis is placed on the safety of the visitor not the premises
Care? itself – Pollock v Cahill [2015]:
• The claimant was blind and suffered serious injuries after
falling out of an open second floor window.
• The defendant was a a friend and was aware of the
claimant’s vulnerability
• The open window was held to be a risk that the defendant
should have guarded against to keep the claimant (visitor)
safe – would not have presented a risk, or rendered
premises unsafe for a sighted person.
Standard of Care
(cont)..
• Duty is limited to the purpose of the visitor’s
permission
• Duty is not to ensure the safety of all visitors,
but rather to take reasonable care to provide
reasonable safety  Bowen v National Trust
[2011]
• Edwards v London Borough of Sutton [2016]
‘not every accident (even if it has serious
consequences) has to have been the fault of
another; and an occupier is not an insurer
against injuries sustained on his premises’ per
McCombe LJ at [61]
 Determining
Breach
• Same basic principles as in the common law of negligence (lots of
leading breach cases are OL cases)
• Need to determine: did the occupier exercise reasonable care
towards visitors on their premises? If conclude no = breach, if
conclude yes = duty has been discharged.
• Must weigh up the likelihood/seriousness of the harm resulting from
the state of the premises and the costs (economic or social) involved
in rectifying any dangers
• OLA 1957 s2(2) – must consider what is reasonable ‘in all the
circumstances of the case’
• This includes the degree of care one would expect of a claimant - Will
depend on the facts: the particular defendant and the particular
claimant  Tedstone v Bourne Leisure [2008] EWCA Civ 654
Varying the Standard: Children
• OLA 1957 makes specific reference to certain classes of
visitor, with one of those being children
• S2(3)(a) – ‘an occupier must be prepared for children to be
less careful than adults’
• Essentially they need to do more to ensure child visitors are
safe – they owe a higher standard of care (Glasgow
Corporation v Taylor)
• Jolley v Sutton London Borough Council [2000] HL –
Abandoned boat likely to be alluring to children and thus
foreseeable that children might approach/climb on it.
Occupier found liable.
• Occupiers entitled to assume parents will take proper care of
children  Phipps v Rochester Corp This Photo by Unknown Author is licensed under CC BY-SA

• Occupiers are not held to higher standards than parents 

Simkiss v Rhondda BC
Varying the Standard: ‘Persons in
the exercise of a calling’
• Section 2(3)(b) of the OLA 1957 specifically mentions
‘person in the exercise of a calling’
• What does this mean?- essentially ‘skilled’ visitors
• Visitors are expected to guard against special risks
associated with their vocation and thus a D can escape
liability for such risks
• Roles v Nathan [1963]- boiler chimney sweeps should
be expected to guard against the risks posed by that
occupation.
• Would be different if they had come to harm some
other way (i.e. not related to the boiler).
Discharging the duty: Warnings
• An occupier, if shown to have taken reasonable care,
will have discharged their duty and there will be no
claim.
• An occupier may discharge their duty under the OLA
1957 by issuing a warning of the potential danger – s
2(4)(a).
• To be effective it must enable the visitor to be
reasonably safe
• Depending on the context, this could mean more than
just alerting someone to the danger.
Warnings
• Warnings can be verbal, written, on a signpost etc
• In order to effectively ensure that the visitor is reasonably safe an occupier will have to
take into account that some visitors may be too young/not capable of understanding
the warning
• No duty to warn of Obvious Risks – Staples v West Dorset District Council (slippery sea
wall)
• Darby v National Trust [2001] CA –
• The claimant’s husband drowned in pond owned by the defendant
• The Court held that the defendant’s failure to place notices specifically warning
against swimming in the pond did not mean they were liable.
• Such notices would have told the claimant’s husband ‘no more than he already
knew’ about the risk.
• Objective standard – Natural risks more likely to be obvious.
Notices excluding liability
• It is possible for an occupier to restrict/exclude/modify their duty to a visitor under OLA
1957 s2(1)
• Distinct from a warning sign which discharges a duty – notices excluding liability prevent
a duty from arising in the first place (or limit its scope)
• If the premises are occupied for business purposes such efforts are subject to s2(1) and
s2(2)the Unfair Contract Terms Act 1977 (UCTA) –
• Under UCTA occupier cannot exclude liability for death or personal injury arising from
negligence, but can for other damage to the extent that it is reasonable to do so.
• If premises are private, occupier is free to modify their liability in any way they choose.
 WARNING

• S2(4)(a) ‘Uneven Steps. Please use staircase at

other end of corridor’

EXCLUDING LIABILITY

Notices • S2(1) ‘Visitors are advised that the management

accepts no responsibility for damage to property
or personal injury howsoever caused’

VOLUNTARY ASSUMPTION OF RISK

• S2(5) ‘Construction work in progress. Enter at

own risk’
Discharging the Duty:
Independent Contractors
• Section 2(4) (b) of the OLA 1957 covers a situation where the occupier
hires independent contractors to do work on the premises and the
claimant is injured.
• The Occupier can discharge liability provided that they acted
reasonably in:
• Entrusting the work to the independent contractor
• Hiring the competent to carry out the task
• Supervising and checking the work so far as was reasonable
 Defences
Volenti
• Section 2(5) of the OLA 1957 states that there is no
obligation to make visitors safe from ‘risks willingly
accepted’ (volenti)
- Have to show that C knew the risk & C freely and
voluntarily accepted consequences of it, i.e.:
Geary v JD Wetherspoon Plc [2011]: sliding
down bannister from height
Contributory Negligence
• Contributory negligence is implied by s 2(3) although
not mentioned in the statute used by courts).
• Skilled hazardous premises visitor who failed to use
torch: Rae v Mars – 33%
CLAIMS UNDER THE OLA 1984

The OLA 1984 is intended

It is not possible to claim
to provide some, albeit
for property damage
limited, protection for
under the OLA 1984 (s 1
non-visitors or trespassers
(8))
who suffer personal injury
 Occupier,
Premises and • Occupier’ and ‘premises’ defined as under
1957 Act under s1(2) of OLA 1984
Non-Visitor • Persons ‘other than his visitors’ is anyone
under 1984 Act who doesn’t meet the definition of visitor
under s 1(2) OLA 1957
Duty of Care under the OLA 1984
• As we know, a visitor is owed an automatic duty of care under the 1957 Act once they can prove they
are a visitor
• Occupiers do not always owe a duty to non-visitors, certain criteria must be fulfilled
• 3 conditions have to be met  s.1(3)
(a) D is aware of danger/has reasonable grounds to believe some danger exists on premises
(b) D knows/has reasonable grounds to believe that others are in the vicinity of the danger, or
may come into the vicinity
(c) The risk is one which D may reasonable be expected to protect C against, in light of the
circumstances of the case
• Different/ more difficult to establish duty under this act  Tomlinson
Tomlinson v Congleton Borough
Council [2003] HL
• The claimant dived into lake in a park managed by the defendant
and broke his neck – almost entirely paralysed from the neck
down
• Signs around the lake read ‘Dangerous water: no swimming’ –
signs frequently ignored and several accidents had occurred
• The claimant was a lawful visitor until he entered the lake, as by
ignoring the signs he had gone beyond the scope of his
permission to be in the park.
• Claim rejected by HL on appeal
• No risk to the claimant due to ‘the state of the premises or
anything done or omitted upon the premises’
• Although the defendant was aware of the danger it was not one
against which they could reasonably be expected to offer
protection
 • ‘But there is no dispute that the act in respect of which
Mr Tomlinson says that he was owed a duty, namely,
In this case, diving into the water, was to his knowledge was
prohibited by the terms upon which he had been
let’s pay admitted to the park. It is, I think, for this reason that the
Council owed him no duty under the 1957 Act and that
specific the incidence and content of any duty they may have
owed was governed by the 1984 Act.’
attention to • ‘[E]ven if swimming had not prohibited and the council
what Lord had owed a duty under section 2(2) of the 1957 Act, that
duty would not have required them to take any steps to
Hoffmann prevent Mr Tomlinson from diving or warning him
against dangers were perfectly obvious’. If that is the
stated: case, then plainly there can have been no duty under the
1984 Act. The risk was not against which he was entitled
under section 1(3)(c) to protection.’ [50]
Lord
Hoffman’s • Lord Hoffmann considered the question of ‘whether people
should accept responsibility for the risk they choose to run’.
Free Will [44]..

Argument • ‘I think it will be extremely rare for an occupier of land to be

under a duty to prevent people from taking risks which are
inherent in the activities they freely choose to undertake upon
the land. If people want to climb mountains, go hang-gliding or
swim or dive in ponds or lakes, that is their affair.. [45]
• ‘My Lords, as will be clear from what I have just said, I think
that there is an important question of freedom at stake’ [46]
• But the balance between risk on the one hand and individual
autonomy on the other is not a matter of expert opinion. It is a
judgment which the Courts must make and which in England
reflects the individualist values of the common law’ [47]
a) D is aware of danger/has reasonable grounds
to believe some danger exists on premises

• Partly subjective -requires knowledge of the danger-

and partly objective -asking whether an occupier
reasonably ought to know about it.
• Rhind v Astbury Water Park ltd [2004] CA
• The claimant hit his head on a fibreglass container
lying on the bed of Astbury mere when diving in
• Had ignored ‘no swimming’ signs and thus was not
owed a duty under 1957 act
• Container not visible form surface and covered in
silt – The defendant had no knowledge of container
and no reasonable ground to believe it was there,
thus no duty owed.
b) D knows/has reasonable grounds to believe that others
are in the vicinity of the danger, or may come into the
vicinity

• Must determine what the occupier actually knows in order to assess whether they have
reasonable grounds to believe that C was in the vicinity of the danger
• Must have ground to believe that C was in the vicinity of danger at the time they were
injured
• Donoghue v Folkstone Properties Ltd [2003]
• The claimant was denied a claim for injuries suffered when diving into a harbour
• The defendant was aware that people swam in the harbour in the summer but not
aware that this was the case, nor had reasonable ground to believe, that this could
occur on a midwinter’s night.
c) The risk is one which D may reasonable be expected to
protect C against, in light of the circumstances of the case

• Requires a balancing exercise similar to when deciding if a duty of care has been
breached, taking all of the circumstances into account
• In particular, this involves consideration of the cost of further measures, both economic
and social
• Simonds v Isle of Wight Council [2004]
• The claimant, 5yr old, fell of a swing near to a field being used for a sports day and
broke his arm. Argued that the defendant school should have taken steps to
discourage use of the swings
• Claim rejected – The Court argued that ‘sports days and other simple pleasurable
sporting events would not be held’ if the defendant was held liable
Breach
• Once duty of care has been established under the OLA 1984 we must then determine if it
has been breached or discharged
• Section 1 (4) of the OLA 1984 set out the standard of care expected of the occupier. This
is a modified version of what we find under the OLA 1957 and states that the duty is to
‘take such care as is reasonable in all the circumstances to see that [the claimant] does
not suffer injury on the premises by reason of the danger concerned.
• We cannot expect occupiers to take the same ‘reasonable care’ to protect safety of non-
visitors as they do for visitors  Donoghue v Folkstone
• Duty under 1984 Act is not, in practice, as strong as that under 1957 Act but the same
basic balancing act applies
• Balancing act - Resources of defendant, cost of taking precautions (both social and
economic), likelihood of harm etc – Platt and Another v Liverpool City Council
Warnings

Duty owed to persons other than

visitors can be discharged by a warning
under s 1(5) OLA 1984

BUT different standard to that required

under 1957 Act, all the warning needs
to do under the 1984 Act is bring the
danger to the claimant's attention, it
DOES NOT have to enable them to be
reasonably safe.

Still no duty to warn of obvious

risks
Child Trespassers
• Unlike the 1957 Act, the 1984 Act does not
specifically state that greater care should be taken
with respect to children trespassing on land or that
children should be specifically regarded when
establishing a duty of care
• However, both when establishing a duty, in
particular under 1(3)(c), and in considering
whether reasonable care has been taken to ensure
that a non-visitor is safe, whether the claimant is
an adult or a child remains an influential
consideration
• Young v Kent County Council
• Contrast with Keown, Siddorn v Patel
 Volenti applies under s 1(6) – ‘no duty is
owed (…) to any person in respect of risk
willingly accepted as his by that person’

Ratcliff v McConnell – C voluntary assumed

Defences the risk of serious injury when diving into
water of an indeterminate depth.

Contributory Negligence – Young v Kent CC

 OLA 1957 OLA 1984
What can the claimant Personal Injury and property damage Only personal injury
claim for?
‘Premises’, ‘Occupier’ Defines in the same way in each act Defines in the same way in each act

Duty of Care Owed automatically under s 2(1) once visitor status Claimant needs to prove all three elements from s
established 1(3)(a)–(c)

Standard of Care From s 2(2): Duty to keep the visitor safe on the From s 1(4): Duty to prevent only personal injury to
premises so far as is reasonable the trespasser so far as is reasonable

Discharge of duty Ordinary factors to be considered Ordinary factors to be considered

– Visitor should take reasonable care for their own – Re warnings: may be discharged by taking
safety (s 2(3)). Note children and professionals (s 2(3)(a) reasonable steps to give a warning about the danger
and (b)) (s 1(5))
– warnings
– independent contractors s 2(4) (a)

Defences Volenti and contributory negligence apply to both Acts Volenti and contributory negligence apply to both
Acts

Attempts to exclude Occupier can attempt to exclude, via a notice Act is silent on whether this is possible.
liability (s 2(1)) so far as free to do so. This will be subject to
UCTA 1977, s 2(1) and (2).