Occupiers' Liability in English Law

Introduction

Occupiers’ liability is a specific area of tort law governing the duty owed by occupiers of premises to persons who come onto their premises. The law distinguishes between visitors (persons who have the occupier’s permission to be on the premises) and trespassers (persons who do not have such permission), with different duties applying to each category. The law is governed by two statutes: the Occupiers’ Liability Act 1957 (OLA 1957), which governs the duty to visitors; and the Occupiers’ Liability Act 1984 (OLA 1984), which governs the duty to trespassers.

The Occupier

The occupier is the person who has control of the premises. The test for occupation is factual: the occupier is the person who has a sufficient degree of control over the premises to be able to take precautions against the risk of harm. There may be more than one occupier, and the degree of control may be shared between, for example, a landlord and a tenant.

The premises include land, buildings, fixed and movable structures, vehicles, and vessels. The definition is broad and includes ships, aircraft, and fairground rides.

The Duty to Visitors

Section 2 of the OLA 1957 imposes a common duty of care on the occupier towards all visitors. The common duty of care is defined by section 2(2) as “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 purposes for which they are invited or permitted by the occupier to be there.”

The standard of care is objective and is assessed by reference to the circumstances, including: the nature of the premises; the purpose of the visit; the age and characteristics of the visitor; and the likelihood of the visitor appreciating the risk.

Section 2(3) provides that the occupier must be prepared for children to be less careful than adults. A higher standard of care is owed to children, as they may not appreciate obvious dangers. However, the occupier may expect that very young children will be supervised by their parents.

Section 2(4) provides that the occupier may expect that persons who enter premises in the exercise of their calling (such as tradespeople and emergency services) will appreciate and guard against special risks ordinarily incident to their calling.

Warnings

Section 2(4)(a) of the OLA 1957 provides that the occupier may discharge their duty by giving a warning of the danger, provided the warning is sufficient to enable the visitor to be reasonably safe. A warning that does not enable the visitor to avoid the danger — for example, because the visitor has no choice but to encounter the danger — is not sufficient.

Exclusion of Liability

Section 2(1) of the Unfair Contract Terms Act 1977 (UCTA 1977) renders void any clause excluding or restricting liability for death or personal injury resulting from negligence. Section 2(2) subjects exclusions of liability for other loss or damage to the requirement of reasonableness. These provisions apply to occupiers’ liability under the 1957 Act.

The Duty to Trespassers

The Occupiers’ Liability Act 1984 imposes a duty on occupiers towards persons other than visitors — that is, trespassers. The 1984 Act was enacted in response to British Railways Board v Herrington (1972), in which the House of Lords held that the common law duty to trespassers was insufficient and that occupiers owed a duty of common humanity.

Section 1(3) of the OLA 1984 provides that the occupier owes a duty to a trespasser if: the occupier is aware of the danger or has reasonable grounds to believe that it exists; the occupier knows or has reasonable grounds to believe that the trespasser is in the vicinity of the danger or may come into the vicinity; and the risk is one against which, in all the circumstances, the occupier may reasonably be expected to offer some protection.

The duty under the 1984 Act is to take such care as is reasonable in all the circumstances to see that the trespasser does not suffer injury on the premises by reason of the danger concerned. The duty may be discharged by giving a warning of the danger.

Special Cases

The OLA 1957 and OLA 1984 do not apply to certain activities carried out on premises, such as professional activities (which are governed by the common law of negligence). The Acts apply only to the occupier’s duty as occupier, not to activities carried out on the premises.

Independent Contractors

Section 2(4)(b) of the OLA 1957 provides that the occupier may discharge their duty by entrusting work to an independent contractor, provided the occupier took reasonable steps to satisfy themselves that the contractor was competent and that the work had been properly done.

Conclusion

Occupiers’ liability in English law provides a statutory framework for the duty owed by occupiers to persons who come onto their premises. The common duty of care under the 1957 Act protects visitors, while the 1984 Act imposes a more limited duty to trespassers. The distinction reflects the different expectations of visitors (who have permission to be on the premises) and trespassers (who do not).