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Law of Tort revision notes on Occupier's Liability
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Occupiers’ Liability Occupiers' liability generally refers to the duty owed by land owners to those who come onto
their land. However, the duty imposed on land owners can extend beyond simple land
ownership and in some instances, the landowners may transfer the duty to others, hence the
term occupier rather than owner.
o Occupiers' liability is perhaps a distinct form of negligence in that there must be a duty
of care and breach of duty, causing damage. The rules of remoteness apply to occupiers’
liability in the exact same way that they apply to negligence claims. Liability can arise on
occupiers for omissions since their relationship gives rise to duty to take action to ensure
the reasonable safety of visitors.
The law relating to occupiers' liability originated in common law but is now contained in two
major pieces of legislation:
o Occupiers Liability Act 1957 - which imposes an obligation on occupiers with regard to
'lawful visitors'
o Occupiers Liability Act 1984 - This imposes liability on occupiers with regard to persons
other than ‘his visitors’.
Different levels of protection are expected under the two pieces of legislation with a higher
level of protection afforded to lawful visitors.
Prior to the Acts:
At common law different duties were owed to different categories of entrant –
• Where claimant entered in pursuance of a contract: implied contractual duty that premises were
fit for the purposes of the contract;
• Invitee: a duty to use reasonable care to protect from unusual dangers which occupier knew or
ought to have known about;
• licensee who entered with an occupier's express or implied permission: to be warned of
concealed danger of which occupier actually knew;
• Trespasser: protect from deliberate or reckless injury.
As a result of this the law became complicated, due to:
• Distinctions between categories of entrant,
• Distinctions between actual knowledge or deemed or presumed knowledge
• Distinction between injuries caused by the state of the premises (graded duties applied) and
injuries caused by activities carried out on the premises (ordinary negligence principles applied)
Judicial precedent V Occupiers’ Liability
- British Railways Board v Herrington [1972] (A six year old boy was electrocuted and
suffered severe burns when he wondered from a play park onto a live railway line.
The railway line was surrounded by a fence however, part of the fence had been
pushed down and the gap created had been used frequently as a short cut to the
park. The defendant was aware of the gap in the fence which had been present for
several months, but had failed to do anything about it. Under existing authority of
Addie v Dumbreck no duty of care was owed to trespassers. However, the House of
Lords departed from their previous decision using the 1966 Practice Statement and
, held that the defendant railway company did owe a duty of common humanity to
trespassers).
- Lord Reid: Duty to trespassers is a ‘humanitarian duty’, to ‘act in a human manner’
(917)
- Lord Morris: ‘duty of acting with common humanity’ (909)
- Lord Pearson: ‘to treat with ordinary humanity’ (927)
- Lord Diplock, duty depended on all the circumstances of the case (941-2)
The key issues to come from this case were:
• Statutory interpretation
• Whether, how and to what extent the common law should be used to interpret the
legislation
- Jolley v Sutton London Borough Council [2000] (Two 14 year old boys found an
abandoned boat on land owned by the council and decided to do it up. The boat was
in a thoroughly rotten condition and represented a danger. The council had stuck a
notice on the boat warning not to touch the boat and that if the owner did not claim
the boat within 7 days it would be taken away. The council never took it away. The
boys had been working on the boat for 6-7 weeks when one of them suffered severe
spinal injuries, resulting in paraplegia, when the boat fell on top of him. The boys had
jacked the boat up to work on the underside and the jack went through the rotten
wood. The claimant brought an action under the Occupiers Liability Act 1984. The
trial judge found for the claimant. The Court of Appeal reversed the decision, holding
that whilst it was foreseeable that younger children may play on the boat and suffer
an injury by falling through the rotten wood, it was not foreseeable that older boys
would try to do the boat up. The claimant appealed. The claimant's appeal was
allowed. The risk was that children would "meddle with the boat at the risk of some
physical injury" The actual injury fell within that description).
- Per Lord Styen, 'First, in this corner of the law the results of decided cases are
inevitably very fact sensitive. Both counsel nevertheless at time invited your
Lordships to compare the facts of the present case with the facts of other cases.
That is a sterile exercise. Precedent is a valuable stabilising influence in our legal
system. But, comparing the facts of an outcome of cases in this branch of the law is
a misuse of the only proper use of precedent, viz., to identify the relevant rule to
apply to the facts as found.'
Is it an action under Common Law or Occupiers’ Liability Act 1957 or 1984?
• WHERE DID THE HARM OCCUR?
• WAS THE RISK OF INJURY FROM DANGER DUE TO THE STATE OF THE PREMISES OR TO AN
ACTIVITY ON THE PREMISES?
• WHO IS THE OCCUPIER OF THE PREMISES?
• WAS THE CLAIMANT A VISITOR OR A NON-VISITOR?
KEY CASES:
Tomlinson V Congleton BC [2003] (The defendant owned Brereton Heath Country Park. It
had previously been a sand quarry and they transformed it in to a country park and opened
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