OCCUPIERS’ LIABILITY
OLA 1957
An occupier owes an automatic DoC under s2(1) to all visitors on his premises
- 3 requirements to establish.
1. Did danger arise from state of premises?
Danger must arise from ‘state of premises’ or things done or omitted to be done on them s.1(1)
1.1 Premises
Premises includes fixed or movable structures s.1(3)
1) Vessel, vehicle or aircraft s1(3)(a)
- Including abandoned boats…
- But note: in the case of passengers on commercial ships or aircraft, liability provisions of relevant
international carriage conventions will nearly always pre-empt any occupier’s liability
2) Railway lines (Videan v British Transport Commission)
3) Open land next to a path (Singh v Cardiff City Council)
4) Airport runway (Monarch Airlines Ltd v Luton Airport)
5) Clerk and Lindsell: “a field with toxic berries growing on it which poisoned a child visitor who ate them.”
6) Bouncy castles (Perry v Harris)
7) Beach (Proctor v Young)
8) Fairground rides (Furmedge v Chester-Le-Street DC – operator of inflatable held occupier)
9) Fire escape (Keown v Coventry)
10) Roof of building (Young v Kent)
11) Scaffolding (Gillingham)
12) (Defective) ladders (Wheeler v Copas)
- Bricklayer injured when a farmer lent him a defective ladder. Ladder counted as premises, but no claim under
OLA 1957 since farmer was not occupier at the time of injury; ladder was lent (possession relinquished, not
occupier).
→ If the owner lent/let someone else an item for him to use such that possession is relinquished, no longer
occupier.
Includes dangers in and on land
Shorten v Grafton District Golf Club: Kangaroos on golf course, hurt C. D did not erect warnings.
1.2 “Occupancy” not “activity” DoC
‘State of premises’ in s1(1) limits the effect to occupancy duties (Fowles v Bedfordshire CC; Bottomley v Todmorden
Cricket Club, [31] per Brooke LJ)
Any activity duty (activities carried out on premises) is to be addressed using the general tort of negligence, any
occupancy duty continue with OLA framework
McCarthy v Marks & Spencer plc [2014] (Pittaway QC): ‘The significance of the difference between [the tort
of negligence and the claim under OLA 1957] lies in the distinction between “activity duties”, which are not
covered by the Act and “occupancy duties”, which are covered.’
Difficult to differentiate so must know the case law:
Activities, no DoC:
1) Exposure to asbestos dust while working for several employers (Fairchild v Glenhaven Funeral Services)
- Exposure from activity 3P carried out on the premises with D’s consent
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, - Make sure to cite the CA decision when addressing this in PQ or essays as this point about occupier’s liability
went no further than the CA
2) Injury caused by work subcontracted on premises. Occupier not responsible for work practices implemented by
3P on its premises (Ferguson v Walsh)
3) Fireworks are dangerous activity (Bottomley v Todmorden Cricket Club)
4) Occupier shooting a person (Revill v Newberry) ! C trespasser, but since nothing to do with state of premises, D liable
under tort of negligence, not OLA 1984
5) Inadequately controlling thugs in a nightclub (Everett v Comojo)
6) Failing to teach a visitor to use sports equipment (Fowles v Bedfordshire CC)
7) Failing to ensure safe working conditions for a contractor
- Tree surgeon (Yates v National Trust)
- Building contractors dealing with asbestos (McCarthy v Marks & Spencer plc)
8) No duty to warn against/protect visitors with respect to their activities that carry ordinary risks (horse climbing,
rock climbing)
- It would be onerous to burden the occupier with this
Lord Hoffmann, Tomlinson v Congleton: “The risk was that C might not execute his dive properly and so sustain
injury. Likewise, a person who goes mountaineering incurs the risk that he might stumble. In either case the risk
cannot be attributed to the state of the premises. Otherwise any premises can be said to be dangerous to
someone who chooses to use them for some dangerous activity... the only risk arose out of what he chose to do
and not out of the state of the premises.”
• Diving into shallow water prohibited by notices (Tomlinson v Congleton BC)
- Ordinary shallow water not inherently dangerous
- Ordinary stretch of open water not inherently dangerous
- No hidden dangers
- D did not do or permit anything to be done which created a danger
• Attempting dangerous manoeuvre on climbing wall (jump from one wall to another). Fell on mat but became
tetraplegic. Argument that D breached duty by failing to supervise, provide warning, have proper matting failed
(Portsmouth Youth Activities Committee v Poppleton)
2. Is D an occupier of the premises?
Lord Denning, Wheat v Lacon provides definition:
Test of sufficient degree of control [s1(2)] and appreciation that a failure on his part to use care may result in injury
to a person coming lawfully onto the premises.
• It is not necessary for the occupier to have entire control over the premises.
- Does not need to have exclusive occupation.
- Does not need to have legal control or legal ownership.
- Some degree of control is sufficient.
• Occupier may share the control with others. Two or more may be ‘occupiers’.
As confirmed in Ferguson v Welsh and Alexander v Freshwater Properties Limited
- Whenever this happens, each is under a DoC towards persons coming lawfully onto the premises, dependent
on his degree of control.
- Control over different aspects, thus DoC over different aspects of the premises.
2.1 Yes
1) Manager of pub living on first floor (of building owned by D) with C being his paying guest – sufficient control
(Wheat v Lacon)
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,2) In the case of abandoned property where nobody is in physical control, whoever has legal title over that property
(Harris v Birkenhead Corporation)
3) Builder or contractor, if he has practical control of part of the premises (Ferguson v Welsh)
- Element of maintenance must be substantial: merely cutting the grass in summer will not suffice (Prentice)
- Contractors building a tunnel held to owe a duty under the OLA 1957 (Bunker v Charles)
- Water authority which kept sea-wall in repair for the local authority held liable (Collier v Anglian Water)
4) Absentee owner occupying through employee (Stone v Taffe)
5) Someone who has the legal right to invite or permit others to come on the premises, such as the concessionaire
of space at a fairground (Humphreys v Dreamland (Margate) Ltd)
2.2 No
1) Director & shareholder of company operating hotel (Shtern v Cummings)
- Not sufficient control over day-to-day matters: it is the company operating hotel who had duty to check
safety of electrical appliances since they were responsible for running the premises.
2) If the owner lent/let someone else an item for him to use such that possession is relinquished, not occupier.
(Wheeler v Copas)
3. Is C a visitor?
If yes, OLA 1957. If no, OLA 1984.
s.1(2): Persons treated as invitees (express permission) or licensees (implied permission)
3.1 Permission
Express, implied, restricted by D
3.1.1 Express permission
Straightforward – D expressly lets C know that C can enter the premises
3.1.2 Implied permission
• When occupier knows children often come on his land to play and pick berries unaccompanied, but took no steps
to prevent this (Phipps v Rochester Corporation)
- Children impliedly permitted = visitors
• When occupier knows the public frequently use his premises, but took no steps to prevent this (Lowry v Walker)
Limitations to when permission is implied:
• Implied permission does not extend to what C did on D’s land, even if D knew C was on his land and did nothing
to remove him. When land used for recreational purposes, carrying normal risks (Harvey v Plymouth CC)
- D not liable for drunk C running away from a taxi to escape paying the fare, entering D’s land and falling
down a steep drop suffering injuries
Trespass, no implied permission:
- if occupier warns C not to enter (Hardy v Central London Ry)
- if occupier fences up his land and keeps it properly fenced (Edwards v Railway Executive)
3.1.3 Restricted permission
D may limit permission given by space, purpose, or time.
If C exceeds these permissions, he changes from visitor to non-visitor.
Relevance of C’s state of mind
State of mind and intention is important factor in determining whether C is a visitor or a trespasser.
If C deliberately enters an area marked “no entry”, or knows he enters where he has no right to be = trespasser
If C makes a mistake and goes the wrong way = still a visitor
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, • Honest mistake is acceptable.
Example (space) Spearman v Royal United Bath Hospitals NHS Foundation Trust
C had phobia of hospitals, was diabetic, and suffered hypoglycaemic attacks which made him confused. After one
such attack, he was taken to D’s hospital. While unattended, C went through unsecured door onto a flat roof, where
he used furniture to climb over the safety fence into the non-public part. Fell, serious injuries.
- C, in a confused state, believed wrongly but honestly that he needed to go upstairs and over the barrier to
get out. As such, he remained a visitor.
- ! Clerk and Lindsell disagree with the outcome because a mere honest mistake seems to burden landowner
with the consequences of unreasonable mistakes.
• Involuntary or accidental encroachment outside licensed area is not trespassing (Braithwaite v South Durham
Steel Co)
1) Space
Considered a visitor as long as C has reasonable belief that he was entitled to be there
- Ex: there is a party being held. If one tries to find the bathroom but ended up in the office, within scope of
permission. But if one tries to go into office to find this year’s exam, then one is a trespasser.
• A customer at a pub is invited to use the toilet and remains a lawful visitor while making a reasonable search for
it (Gould v McAuliffe)
Trespass:
- Straying from usual access (Mersey Docks and Harbour Board v Proctor)
- Going into areas where one is forbidden to enter (by an express prohibition or a general notice) (Dunster v
Abbott)
2) Purpose of the building or likelihood of a particular amenity being used (AB v Pro-Nation Alliance)
“When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters.”
(Scrutton LJ, The Calgarth)
- Balancing occupier’s obligations to keep visitor safe and visitor’s obligations to take care of their own actions
Trespass:
- Exceeding the purpose or terms upon which C was admitted to the premises
Ex: C admitted as visitor in park. Park prohibits swimming but C dived into the lake. As soon as he dived, he
became non-visitor (thus owed the more limited duty under OLA 1984) (Tomlinson v Congleton)
- A licence to enter for lawful purposes does not imply a licence to enter to steal (R v Jones & Smith)
3) Time
Stone v Taffe: C unaware of instructions from manager’s employer forbidding people to stay in pub after closing time.
C had reasonable belief he was entitled to be there = still a visitor
3.1.4 If permission given by someone other than D
The test is whether that person has ‘ostensible authority’ to do so
= appears to have authority to C, as opposed to actually having the authority
• Permission given by employee of the occupier
C clearly visitor if employee is clearly entitled to give permission on behalf of D (usually this is the case)
If employee acts contrary to employer’s instructions, C is visitor if employee is
(i) acting in the course of employment (according to the rules of vicarious liability) and
(ii) C had entered the premises in good faith (he believed he was entitled to be on the premises) (Stone
v Taffe)
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