Summary
Summary Occupier's Liability
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Topic 11 of the tort law module. Used by a 1:1(1st) student.
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Introduction Occupiers’ Liability Act 1957 as amended by the Defective Premises Act 1972
Law relating to trespassers: British Railways Board v Herrington [1972] A.C. 877, now in the Occupiers’
Liability Act 1984
Occupier of land owed a limited duty of care to those who entered the land lawfully through the
Countryside and Rights of Way Act 2000
The Common Law
Categories of entrant:
Contractual entrants: extent of duty depended on express or implied terms of the contract – liability
in contract and dependent on express terms, or then implied terms absent of express ones.
Invitees: duty to protect from an “unusual danger” – people permitted to enter occupier’s premises,
to enter in furtherance of the occupier’s purposes. Standard of care owed is the occupier owed the
invitee a duty to exercise reasonable care from an ‘unusual danger’.
Licensees: duty to warn of any “concealed dangers” or “traps” of which the occupier actually knew –
those permitted to enter for their own purposes, not the occupier’s purposes, occupier owed a
licensee a lower duty than an invitee.
Trespassers: duty to refrain from creating a danger intentionally or through a reckless disregard of the
trespasser’s presence – only duty owed was to refrain from creating an intentional danger or through
a reckless disregard for trespasser’s presence. No liability for an omission.
Uncertainty of people entering as persons entering as of right (e.g., police officers executing a search warrant,
as licensees or invitees).
Rules regarded as unsatisfactory:
Complexity: difference between licensee and invitee unclear, and difference between unusual and
usual danger.
Aspects of law unsatisfactory as a matter of substance: low level of duty owed to licensees and
trespassers was too low, what if the entrant was a child? Even an invitee could not sue in respect of a
danger he/she actually knew, via London Graving Dock Co v Horton [1951] A.C. 737 (claim barred
simply because C was aware of the danger).
The common law of negligence was regarded as applicable to risks arising from an activity of the
occupier: relationships between special liability rules and ordinary common law was unclear.
Gallagher v Humphrey (1862) 6 L.T. 684 (licensee, child, duty arose due to operating dangerous
crane), and Slater v Clay Cross Co Ltd [1956] 2 Q.B. 264 (lawfully on land, hit by negligently-driven
train, defendant liable on application of ordinary principles of tort of negligence, not relevant if she
was an invitee or licensee, duty arose) gave a distinction between duties arising from the occupancy
of the land by the occupier, and duties arising from another basis.
Law Reform Committee, Third Report, Occupiers’ Liability to Invitees, Licensees and Trespassers (Cmd.
9305), 1954)
C. Liability to Lawful Visitors and Contractual Entrants: the Occupiers’ Liability Act 1957
Occupiers’ Liability Act 1957
Liability in tort
1 Preliminary
(1) The rules enacted by the two next following sections shall have effect, in place of the rules of the
common law, to regulate the duty which an occupier of premises owes to his visitors in respect of
dangers due to the state of the premises or to things done or omitted to be done on them.
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,(2) The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a
person’s occupation or control of premises and of any invitation or permission he gives (or is to
be treated as giving) to another to enter or use the premises, but they shall not alter the rules of
the common law as to the persons on whom a duty is so imposed or to whom it is owed; and
accordingly for the purpose of the rules so enacted the persons who are to be treated as an
occupier and as his visitors are the same (subject to subsection (4) of this section) as the persons
who would at common law be treated as an occupier and as his invitees or licensees.
(3) The rules so enacted in relation to an occupier of premises and his visitors shall also apply, in like
manner and to the like extent as the principles applicable at common law to an occupier of
premises and his invitees or licensees would apply, to regulate—
(a) the obligations of a person occupying or having control over any fixed or moveable structure,
including any vessel, vehicle or aircraft; and
(b) the obligations of a person occupying or having control over any premises or structure in respect
of damage to property, including the property of persons who are not themselves his visitors.
[(4)] A person entering any premises in exercise of rights conferred by virtue of—
(a) section 2(1) of the Countryside and Rights of Way Act 2000, or
(b) an access agreement or order under the National Parks and Access to the Countryside Act 1949,
is not, for the purposes of this Act, a visitor of the occupier of the premises.]
2 Extent of occupier’s ordinary duty
(1) An occupier of premises owes the same duty, the “common duty of care”, to all his visitors,
except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor
or visitors by agreement or otherwise.
(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 purposes
for which he is invited or permitted by the occupier to be there.
(3) The circumstances relevant for the present purpose include the degree of care, and of want of
care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases-
(a) an occupier must be prepared for children to be less careful than adults; and
(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard
against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.
(4) In determining whether the occupier of premises has discharged the common duty of care to a
visitor, regard is to be had to all the circumstances, so that (for example)-
(a) where damage is caused to a visitor by a danger of which he had been warned by the occupier,
the warning is not to be treated without more as absolving the occupier from liability, unless in
all the circumstances it was enough to enable the visitor to be reasonably safe; and
(b) where damage is caused to a visitor by a danger due to the faulty execution of any work of
construction, maintenance or repair by an independent contractor employed by the occupier,
the occupier is not to be treated without more as answerable for the danger if in all the
circumstances he had acted reasonably in entrusting the work to an independent contractor and
had taken such steps (if any) as he reasonably ought in order to satisfy himself that the
contractor was competent and that the work had been properly done.
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, (5) The common duty of care does not impose on an occupier any obligation to a visitor in respect of
risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be
decided on the same principles as in other cases in which one person owes a duty of care to
another).
(6) For the purposes of this section, persons who enter premises for any purpose in the exercise of a
right conferred by law are to be treated as permitted by the occupier to be there for that purpose
whether they in fact have his permission or not.
3 Effect of contract on occupier’s liability to third party
(1) Where an occupier of premises is bound by contract to permit persons who are strangers to the
contract to enter or use the premises, the duty of care which he owes to them as his visitors
cannot be restricted or excluded by that contract, but (subject to any provision of the contract to
the contrary) shall include the duty to perform his obligations under the contract, whether
undertaken for their protection or not, in so far as those obligations go beyond the obligations
otherwise involved in that duty.
(2) A contract shall not by virtue of this section have the effect, unless it expressly so provides, of
making an occupier who has taken all reasonable care answerable to strangers to the contract for
dangers due to the faulty execution of any work of construction, maintenance or repair or other
like operation by persons other than himself, his servants and persons acting under his direction
and control.
(3) In this section “stranger to the contract” means a person not for the time being entitled to the
benefit of the contract as a party to it or as the successor by assignment or otherwise of a party
to it, and accordingly includes a party to the contract who has ceased to be so entitled.
(4) Where by the terms or conditions governing any tenancy (including a statutory tenancy which
does not in law amount to a tenancy) either the landlord or the tenant is bound, though not by
contract, to permit persons to enter or use premises of which he is the occupier, this section shall
apply as if the tenancy were a contract between the landlord and the tenant.
(5) This section, in so far as it prevents the common duty of care from being restricted or excluded,
applies to contracts entered into and tenancies created before the commencement of this Act, as
well as to those entered into or created after its commencement; but, in so far as it enlarges the
duty owed by an occupier beyond the common duty of care, it shall have effect only in relation to
obligations which are undertaken after that commencement or which are renewed by agreement
(whether express or implied) after that commencement….
Liability in contract
5 Implied term in contracts.
(1) Where persons enter or use, or bring or send goods to, any premises in exercise of a right
conferred by contract with a person occupying or having control of the premises, the duty he
owes them in respect of dangers due to the state of the premises or to things done or omitted to
be done on them, in so far as the duty depends on a term to be implied in the contract by reason
of its conferring that right, shall be the common duty of care.
(2) The foregoing subsection shall apply to fixed and moveable structures as it applies to premises.
(3) This section does not affect the obligations imposed on a person by or by virtue of any contract
for the hire of, or for the carriage for reward of persons or goods in, any vehicle, vessel, aircraft
or other means of transport, or by or by virtue of any contract of bailment.
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