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Occupiers Liability lecture notes
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lOMoARcPSD|6002512Occupiers Liability
Lecture 11
This area of law has been simplified over the years– used to be regulated under common law pre-1957 but now it
refers largely to statutes.
Two main laws in this area:
1. Occupier liability act 1957
a. Deals with claimants labeled as ‘visitors’
2. Occupiers liability act 1984
a. Deals with people who aren’t labeled ‘victors’ aka ‘non-visitors’
This are of law is very similar to the law of negligence except most of the occupier’s liability legislation comes
from acts rather than the common law. A lot of the common law cases are relevant here too.
As we go through this area of law, we will see there are a lot of myths that people believe to be true.
Occupiers Liability Act 1957 - Visitors
Duty applies to personal injury and property damage
Who is an occupier:
o Person in control of the premises
o When looking at multiple occupiers: the more control you have; the more the law requires you to
take reasonable care
Occupiers’ Liability
Occupiers’ liability is a particular application of the tort of negligence. Defendant occupiers can be held liable for
injury to the person, or to property, caused by their failure to take reasonable care.
Who owes a duty of care to someone who occupies a premises? Claimants bring claims where the defendant
did not take reasonable care for the state of the premises, but defendants argue that the claimant chose to
take a risk.
Geary v Weatherspoon’s- Ms Geary went to Weatherspoon’s, drank a few drinks and decided to
slide down a bannister, she fell and suffered injuries. She argued Weatherspoon’s ought to have
contemplated that might have happened, should have put a warning. They argued that her injury
was a result of what she chose to do not the state of the premises.
Note that many of the modern cases appear influenced by a desire to protect occupiers from excessive
liability/perceived ‘compensation culture.’
Common law (pre-1957)
Liability was governed by the label courts used to describe the entrant. The old common law’s distinctions
between different categories of entrant caused confusion and inconsistency. The categories of entrant were:
i) contractual entrants; ii) invitees; iii) licensees; and iv) trespassers.
This area was just dealt with at common law. Liability was dependent on how the claimant was labelled,
there were 4 different labels for the different entrants. But a problem arose because the courts have created
4 different standards of care, the rules became overcomplicated, and were inconsistently applied.
The common law was largely replaced by a statutory regime of occupiers’ liability comprising two statutes:
the Occupiers’ Liability Act 1957 (which deals with liability to visitors) 1; and
the Occupiers’ Liability Act 1984 (dealing with liability towards non-visitors).
Liability to visitors: Occupiers’ Liability Act 1957
S.2(1) – ‘An occupier of premises owes the same duty, the common duty of care to all his visitors.’
Establishing an occupier’s liability under the 1957 Act therefore requires consideration of the following
issues:
• Who is/are the occupier(s)?; (Defendants)
• Is the claimant a ‘visitor’?;
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• What might be regarded as ‘premises’?;
• What is the common duty of care?;
• Referred to as ‘the common duty of care’ because of the law in this area that existed before
the act. Before it was governed by common law – the judges made up a set of rules that
were so complicated even the judges thought it was complicated.
• Has the common duty of care been breached?
• Did the breach cause damage?
1. The Occupier
S.1(2) of the Act does not provide a statutory definition of occupiers, but instead refers to the old common
law rules on identifying an occupier (Wheat v Lacon). The leading case here is:
Wheat v E. Lacon & Co. Ltd [1966] AC 522 – A widow whose husband has fallen to his death down
some unlit stairs in a public house. The widow sued the management of the pub and the brewery in
negligence. Who are the occupiers? Lord Denning’s test.
The test for occupation was one of control: someone who has a degree of control of premises; can be
more than 1 occupier; its someone or people who have a degree of control
1
‘[T]he 1957 Act has been very beneficial. It has rid us of those two unpleasant characters, the invitee and the
licensee, who haunted the courts for years, and it has replaced them by the attractive character of the visitor who
so far has given no trouble at all.’ Per Lord Denning in Roles v Nathan).
1
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‘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 the
person coming lawfully there is his visitor and the occupier is under a duty of care to his visitor’: per Lord
Denning.
Both the manger and the brewery as owners of the pub, were occupiers, it’s based on the neighbour
principle. Can have more than one occupier and more than one defendant on one premises, don’t
have to have a right of ownership to be an occupier.
Harris v Birkenhead Corporation [1976] 1 All ER 341 –Doesn’t have to be a physical occupation of the
space for a defendant to be an occupier. An empty terrace house which has been abandoned, a child
fell threw one of the widows, because the glass was removed. The defendant’s local authority was
the occupier of this, because they served a notice on the terrace of the house telling them to
evacuate which showed control.
Held – Defendant local authority was to be regarded as occupier – serving a notice on the tenants
requiring them to leave demonstrated ‘sufficient control’. Even empty houses could have an
occupier.
Note:
Landlords may or may not have sufficient control to qualify as an occupier at the time of an injury on
the premises. Even if not occupiers, landlords may still be liable under Defective Premises Act 1972 –
s.4 of which states that if the lease provides that the landlord has an obligation regarding the repair/
maintenance of the property, the landlord will owe a duty of care to anyone who might reasonably
be regarded as affected by a defect in the premises.
2. ‘Visitors’
S.1(2) again refers to the common law to identify visitors. Common law defines a ‘visitor’ as someone who
has express or implied permission to be on the premises.
Robson v Hallett [1967] 2 QB 939 – anyone who approaches the premises has an implied
commission, but the occupier can withdraw this commission by e.g. adding a sign. per Lord Parker –
‘the occupier of any dwelling house gives implied [permission] to any member of the public coming
on his lawful business to come through the gate, up the steps, and knock on the door of his house.’
Other forms of implied permission?
The line between visitor and trespasser is not always easy to discern:
Lowery v Walker [1911] AC 10 – Claimant injured by ‘a savage beast’ (a horse) when crossing D’s
field to access the railway station, using it as a short cut. D was annoyed by this use of the land, so
he put a savage horse to try to deter people and he added fences. C was beaten by the horse and
sued the occupier in negligence. HoL: defendant had tolerated this trespass and that gave rise to an
implied license therefore C was treated as a visitor - the occupier’s ‘tolerance’ of the repeated
trespass gave rise to an implied licence.
Comment:
At the time of Lowry there was no protection for trespassers, judges thought it was irresponsible to put a
horse if you knew that people cross it, so they added this remedy of a fictional device which renders the
claimant a visitor in these situations. But now there is statutory provision, so the courts don’t need to use
this fictional device of an implied license.
Query the status of Lowery v Walker following the enactment of the Occupiers’ Liability Act 1984 (below).
See now also the case of:
2
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