Occupiers Liability Summarised Notes for the Tort Law module, LLB, at City, University of London - can of course be used for other universities as well! Should be used with the full bundle of notes!
OCCUPIERS LIABILITY
-Damages from dangers on premises duty owed to parties present not neighbouring
‘Visitors’= 1957 OL Act, ‘Non-visitors’= 1984 OL Act
Occupiers’ liability under statute – ‘visitors’ Occupiers Liability 1957 (1957=personal injury/property)
Personal injury/ property damage when claimant, or claimant’s property on premises occupied by
D injury/damage outside NOT occupiers liability – can be in negligence; nuisance (unreasonable
interfere claimant’s interest in land) or Rylands v Fletcher (damage by escape of dangerous thing
Damage arise from state of premises: Occupiers Liability Acts states as ‘occupancy duties’ (state
of premises), contrasted with ‘activity duties’ (conduct or activities carried out on premises)
Poppleton v Trustees of Portsmouth Youth Committee [2008]: claimant was engaged in climbing
wall, attempted dangerous manoeuvre beyond his level of skills serious injuries not attributable
to state of premises (as ‘activity duty’)
Yates v National Trust [2014]: claimant seriously injured while hired by independent contractors
to work as tree surgeon on D’s land, he alleged D took no steps to ensure contractor’s working
methods were competent + safe held no liability, dangers due to activities, not state premises
Revill v Newbery [1996]: activity shooting gun through door of shed on burglar=negligence no OL
Everett v Comojo [2011]: guests at members-only night club were stabbed by another guest,
since attacker could not be found, claim bought against night club COA outlined this was a case
of alleged positive duty to act, to prevent acts of third partyD owe positive duties to visitors
Duty at common law owed protect visitors against deliberate acts of third parties on premises,
‘common duty of care’ in 1957 Act duty take reasonable steps to ensure visitor reasonably safe
Whose responsibility to guard against risks?
Addie v Dumbreck [1929]: 4 year old child was killed when fell through unprotected cover of mill
wheel, despite knowledge by D that young children trespassed on their premises, no duty owed
But Occupiers Liability Act 1984 led to more humane duty towards trespassers – Herrington
British Railway v Herrington [1972]: held there was a duty owed to the child which Law
Commission proposed clarifying legislation which became 1984 Act
Now concern of over-protection especially for land that provides public amenity
Social Action, Responsibility and Heroism Act, s.2: ‘court regard alleged negligence or breach of
statutory duty occurred when person acting for benefit of society use in occupier’s liability case
Who is an occupier? – No statutory definition (from case law – s.2(1))
Multiple occupiers
Wheat v Lacon [1966]: D brewers owners of public house, runned by manager, manager + wife
lived on first floor, plaintiff and husband were staying on first floor as paying guests of manager’s
wife, plaintiff’s husband suffered fatal fall on way downstairs, handrail was too short + not proper
lighting on stairs issue was D brewers liable as ‘occupiers’ held D ‘occupiers’ of first floor,
owed common duty of care under 1957 Act BUT did not breach this duty D brewers and
manager could be occupiers simultaneously, both parties were occupiers of first floor
o Each occupier under duty of care to visitors manager license + brewery company had control
Empty premises not necessarily ‘unoccupied’
Harris v Birkenhead [1976]: local authority made a compulsory purchasing order + served notices
on tenant and owner of a house requiring them to surrender occupation local authority was
treated as ‘occupier’ from time they were vacatedas they made property vacant even if they
had no physical presence on the property as exercised control over premises
Ferguson v Welsh [1987]: contractors for work who have sufficient control can be treated as
occupiers leading to dual occupation
Duty owed to ‘visitors’ under Occupiers Liability Act 1957
, Rules in place of common law to regulate duty occupier of premises owes to visitors in
consequence of their occupation or control of premises, inviting to enter or use premises
Applicable at common law to occupier and his invitees or licensees to regulate obligations to
person occupying or having control over fixed or movable structure (e.g. vessel + aircraft)
Not visitorCountryside & Rights of Way Act 2000 or National Parks Access Countryside Act 1949
Occupier of premises owes ‘common duty of care’ to all visitors but can agree exclude duty
Common duty of care= care in all circumstances reasonable to see visitor will be reasonably safe
in using the premises for which invited for or permitted by occupier to be there
Degree of care for a visitor: occupier must be prepared children less careful than adults + expect
a person guard against special risks for occupier leaves free to do so
Warning of danger discharges common duty of care to visitor is only enables be reasonably safe
+ if danger is due to faulty works or repairs by contractor only answerable if acted reasonably to
entrust work into the contractor + took reasonable steps to ensure contractor competent
No common duty if visitor accepts risks + any person entering premises by right of law is treated
as permitted by occupier, whether they in fact have permission or not
Implied term in contracts: where person enters or uses, or brings/sends goods in right by contract
with person occupying or controlling premises, duty owed in terms of dangers in terms of state of
premises, implied in contract shall be common duty of care
Who is owed duty? Occupiers Liability Act 1957
Common duty of care= to all those who are classed as invitees or licensees , at common law
Before 1957 Act issues of invitees (person invited) + licensee (permission enter) now visitors
s.1(6) OL 1957 Act ‘victors’ includes persons in exercise of right by law, s.5 under contract where
term is implied into contract there is a common duty of care
Implied licences: issue where when is it implied a party has permission to enter less issue due
to clear duties to non-visitors under 1984 Act
o Cook v Midland Western Railway [1909]: HOL accepted children who entered Ds land without
permission and played on a railway turntable with ‘leave and licence’ given their knowledge of
was likely to be very attracting to children allurement implied licences less common now
Purpose of visit: may have permission to enter, but where exceeds terms no longer visitor
o Tomlinson v Congleton [2003]: claimant suffered major injuries in diving in shallow water
where swimming not allowed, head hit sandy bottom of lake + broke neck was a trespasser
but controversial as argued more steps should have been taken to prevent swimming
o Neither visitors or trespassers need to be wanted of obvious hazards no duty to say
o Rhind v Astbury Water Park [2004]: major injuries suffered in shallow water, but it was a
concealed hazard, accepted was a trespasser, which 1984 Act states if occupier has knowledge
ought to alert existence of danger but here occupier was not aware of concealed hazard
o Duty to keep visitor safe for only purposes invited or permitted by occupier
o Users rights of way: Persons using right of way NOT owed duty users of public rights of way
no protection, but private way protected under 1984 Act+ ‘right to roam’ under Countryside
2000 Act or under National Parks 1949 are excluded from 1957 Act
Content of ‘Common duty of care’ under 1957 Act
Duty= ‘take care in all circumstances of cases is reasonable to see visitor will be reasonable safe
using premises for the purposes invited or permitted duty to take steps
Existence of some reasonable foreseeable risk of harm not show premises not reasonably safe
o Rochester Cathedral v Debell [2016]: claimant injured after tripping over small lump of
concrete in cathedral COA stated not all foreseeable risks give rise to duty test if ‘whether
piece of concrete created a danger of kind authorities required to address’ no duty
Warnings: discharge common duty of care by warning sufficient if keeps visitor reasonably safe
, o Intruder Detection v Fulton [2008]: householder not discharged duty to contractors who came
into his house to set up burglar system, he warned them no banisters on first floor landing, had
been temporarily removed for renovation no amount of warning could make it safe as risk of
falling though momentary was so great
o The visitors were not experts in the dangers concerned + duty ensure visitor safe, not premises
o Roles v Nathan: visitors were specialists, so warning was sufficient
o For children, warning will need to be clearer + no duty to warn adults if dangers are obvious
o Staples v West Dorset Council [1995]: claimant feel on ‘the cobb’ at Lyme Regis, Cobb was
obviously slippery algae-covered surface (as drenched with seawater) held no need warn
o Edwards v Sutton [2016]: no duty to warn cyclist of low parapet along narrow bridge, since low
parapet was clearly visible + danger of toppling over was obvious
o English Heritage v Taylor [2016]: steep drops below ‘informal path’ not obvious, duty take
reasonable steps owed + duty warn of dangers at heritage sites e.g. ancient castles was onerous
+ steps need to be reasonable on ‘aesthetic grounds’ guidelines to occupiers
‘Specialists’ (s.2(3)): occupier can expect specialist to guard against risks of job
o Roles v Nathan [1963]: 2 chimney sweeps given appropriate information of defective boiler
not liable for deaths as given warning + acted with due care, made themselves safe
o Salmon v Seafarer Restaurants [1983]: fireman was injured when attending fire started by
negligence of occupier’s employee held would be at risk even if use all skill if exercise all
skill but risk remains cannot deny compensation (contrasts with Nathan)
Children: occupiers must be prepared for children to be less careful than adults for own safety
oGlasgow Corporation v Taylor [1922]: D occupiers of Botanical Garden, children free access,
plaintiff’s son, 7yrs old, went to garden alone and died when ate berries from poisonous
shrub berries was a hidden danger + allurement Glasgow liable, berries allurement to
concealed danger, D aware of poisonous berries but no warning or protection
oPhipps v Rochester Corporation [1955]: 5 year old boy walking across unfenced ‘building site’,
not accompanied by an adult, injured fell into trench held corporation not liable as occupier
entitled assume prudent parents would not allow children go unaccompanied to unsafe places
oDanger (trench in ground) in Phipps obvious to an adult not breach of occupier’s duty
oBourne Leisure v Marsden [2009]: claimant took small children to holiday park, briefly evaded
attention of their mother (speaking to another holiday-maker), older child (2yrs) drowned in a
pond, there was a path to pond + fenced, but child able climb overheld no breach of duty
held impractical fence every hazard + clearer notice not make difference unaccompanied
children to encounter danger, no duty to warn dangers that would be obvious to parent
Duty of visitors in General to be careful
Apart from children + experts, there is also a general reference to ‘degree of care, and of want of
care ordinarily looked in for a visitor’
Tacagni v Cornwall [2013]: claim failed, pedestrian ‘late night, had few drinks, unlit road in flip
flops’ council partly to blame, but claimant was in breach of duty of an ordinary visitor
AB v Pro-Nation Ltd [2016]: as it licensed premises, where Pulse Bar was to consume alcohol, D
should regard visitors as under influence of alcohol when using staircase claim lost footing after
drinking expected given purpose of visit
Dangers created by independent contractors s.2(4)(b) 1957 Act
Occupier not liable for execution of work by independent contractor for construction + repair
Occupier must act reasonable in entrusting work in contractor + reasonable steps ensure
competent + work had been ‘properly done’as discharges occupier of common duty of care
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