Occupiers' Liability Lecture

Just as a driver cannot drive haphazardly, and a surgeon must exercise care when operating, a person who is in control of land or property must conduct themselves in a certain manner, in order to avoid injuring others. This is the core ethos of occupiers’ liability law. This means that a certain tension exists between the concept of personal autonomy and privacy, and the concept of public protection and welfare. The law of occupiers’ liability seeks to strike a balance between these two. Just as it would be undesirable to have the State dictate the colour of one’s house, or the flowers which must be grown in the front garden, it would be equally undesirable for a landowner to sow a minefield along their land’s border, to spite the postman and any wandering children that might come by.

Fortunately, much of the law on occupiers’ liability has a statutory basis. Unfortunately, a necessary body of case law has developed to clarify the content of those statutes.

Occupiers’ Liability Act 1957

In England and Wales, the Occupiers’ Liability Act 1957 dictates the duty that an occupier owes to lawful visitors (as per s.1(1)). It deals with dangers due to the state of the premises or to things done or omitted to be done on them. The Occupiers’ Liability Act 1984 may impose a duty towards people other than visitors (discussed below).

There are, thus, three key definitions which are relevant to applying the Act. We must define who an occupier is, what their premises are, and who a lawful visitor is. This is logically intuitive - cases involving occupiers’ liability will always require a claimant, a defendant and location for the incident to have occurred.

It should be noted that OLA 1957 covers both personal injury and damage to property (whereas OLA 1984 only imposes a duty with regard to personal injury).

Defining ‘Occupier’

The Act does not provide a definition for ‘occupier’, since the term is discussed widely in the applicable common law. An occupier is simply a party who exercises a sufficient degree of control over premises, as per Wheat v E Lacon & Co Ltd.

Lord Denning provides a concise rundown of who occupiers are, and the nature of their general duty:

"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 […] is under a duty to his ‘visitor’ to use reasonable care. In order to be an ‘occupier’ it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. […] He may share the control with others. Two or more may be ‘occupiers’. And […] each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control."
- Lord Denning, at 577.

Not only does Denning provide a definition for ‘occupier’, but he also describes it in terms which are intentionally similar to those of the neighbour principle of Donoghue v Stevenson. Thus, the basis for occupiers’ liability can be considered the same as the basis for general negligence - if you control a situation, you should do so in a way which promotes the safety of those who might be injured if care was not taken. Notably, an ‘occupier’ does not have to actually occupy (as in ‘live at’) premises in order to come under the Act. This is sensible - there are vast swathes of land in the UK which are controlled by various parties, even if they don’t live on the property personally. Because of the occupier principle, the law can be thought of as emphasising the practical reality of a situation.

Whilst the occupier definition doesn’t depend on legal ownership, a right to take possession of an empty property can be enough, as in Harris v Birkenhead [1976] 1 WLR 279.

The defendant council was acquiring a rented property by compulsory purchase. They gave the owner/landlord 14 days’ notice of their intention to take possession, but didn’t actually take physical possession of the property (i.e. send an agent to it) once the 14 days had passed. The tenant subsequently moved out. The claimant, a four-year-old girl, wandered off from a nearby playpark with a friend. The house was unsecured (unknown vandals had broken in), and the claimant entered the open front door, went upstairs, and was seriously injured when she fell from a window.

The council was held liable - although they had not physically occupied the property, they had sufficient legal control at the point the accident occurred. This legal control was enough to establish occupier status. The child was a trespasser, and the case was decided at common law before the 1984 Act. A landlord who is not an occupier may nevertheless owe a separate duty under s.4 of the Defective Premises Act 1972 where the tenancy imposes a repairing obligation or gives the landlord a right to enter to carry out repairs.

Defining ‘Premises’

Whilst defining ‘premises’ will be simple in many scenarios, there exist several peripheral issues which should be noted. s.1(3)(a) of the Act notes that it is not just land and buildings which might be considered premises, but vessels, vehicles and aircraft.

Of particular note is that temporary and mobile structures are included under this definition, such as scaffolding and ladders. See Wheeler v Copas [1981] 3 All ER 405. The claimant was a builder working on the defendant’s property when he used a ladder which the defendant had lent to him. The ladder was too flimsy, and broke, injuring the claimant. The court noted that a ladder could, in appropriate circumstances, come under the definition of premises, but that the defendant could not be considered the occupier of the ladder since he had no control of it at the time of the accident. The defendant was liable in negligence for supplying an unsuitable ladder, but the claimant was equally to blame for using a ladder he should have known was insufficient.

Defining ‘Lawful Visitors’

The law splits lawful visitors into three categories - those who have express permission to visit, those who have implied permission to visit, and those with a lawful right to visit.

The express permission category, on the whole, is relatively straightforward. It refers to those who are expressly invited onto premises by some means (so, a written invite or a simple beckoning by the occupier, for example). Occupiers can limit the extent of an express invite in terms of place, behaviour or time. So someone who is invited to a dinner party can attend with express permission, but they cannot refuse to leave at the end, smash the host’s windows and then climb up onto the roof. Someone who goes beyond the scope of their permission becomes a trespasser, and thus will lose the protection of OLA 1957 (although a duty may arise under OLA 1984). In ZZZ v Ministry of Defence [2026] EWCA Civ 875, a soldier injured after drinking and horseplay had not, on the facts, exceeded his permission to use his barracks accommodation. The occupier remained liable for the danger from a low stairwell balustrade.

This principle can be seen in The Calgarth [1927] P 93, 97–110, a pre-Act common law authority. The tug’s propeller caught a mooring chain on the bank of the entrance channel to the Manchester Ship Canal. The right to navigate the channel did not extend to working the propeller into the bank. The canal company was not liable for the damage. In the now-famous words of Scrutton LJ at 110: “When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters, you invite him to use the staircase in the ordinary way in which it is used.”

The implied permission category includes those who lack express permission but whose presence is assumed to be unobjectionable to the occupier. This is a practical measure - each new resident in a road doesn’t write to their postman telling him he can deliver the mail. Similarly, it is one of the needs of society that people can be found and spoken to at their home address. This permission can also be limited, firstly, expressly (so, telling a delivery person to use a particular entrance or path). Secondly, there is a natural limitation which will apply for many forms of implied permission - so a postman will likely be considered to have implied permission to access the front of a property, but this permission will not extend to the postman going round the back of the property and playing on the owner’s swing-set for an hour (if he does, talk to your local post office.) Again, a visitor who exceeds the limitations of implied permission will be considered a trespasser.

Implied permission can come into being if an occupier knows that their land is being used by trespassers, but does nothing to prevent their activities, as in Lowery v Walker [1911] AC 10, a pre-Act common law authority. A path running across the defendant’s field was used as a shortcut by several people to get to a nearby railway station. The defendant knew about this, and objected to it, but for many years had taken no effective steps to stop it. One day, he put a horse known to be dangerous in the field without warning, which attacked and injured the claimant. The courts held that the long use of the path with the defendant’s acquiescence justified a finding of implied permission. The defendant was, thus, held liable.

The lawful right of entry category encompasses those who enter for a purpose in the exercise of a right conferred by law, so far as that purpose is concerned, under s.2(6) of the Act.

This includes police officers (with a warrant or exercising a statutory power of entry without one), firefighters attending a fire, and public utilities employees attending to read meters etc. The root of such permission can usually be found in the relevant statute (such as the Police and Criminal Evidence Act 1984).

Those who enter property in accordance with a valid contract are held to be a lawful visitor under the act, and notably, s.5 generally implies the common duty of care where a contract with the occupier confers a right of entry or use. If the relevant contract provides for a higher standard of care it will apply. So if a landowner hires builders, and agrees to being held strictly liable for any accidents that occur, then that duty of care will apply (in addition to the lesser one contained in the 1957 Act). Under s.3, where a contract requires the occupier to admit a third party, that contract cannot reduce the duty owed to that visitor. Subject to its terms, additional obligations in the contract may enlarge the duty. 

So as long as a visitor is acting within their permission or qualifying right of entry, OLA 1957 applies. Someone on land solely in exercise of a public right of way is not a visitor on that account (Barlow v Wigan Metropolitan Borough Council [2020] EWCA Civ 696).

Occupiers’ Duty of Care

The relevant duty of care can be found in s.2(2) of OLA 1957. An occupier must “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.”

Whilst this is relatively similar to the negligence duty of care, the ability of the occupier to modify the exact nature of the duty should be noted. So an occupier who invites people into his house, but not the garden, must take reasonable care for the safety of their visitors in the house but holds no such duty (at least under OLA 1957) with regard to their garden.

A distinction should also be noted that the duty is based around preventing injury in visitors, rather than ensuring that premises are objectively safe. Thus, whilst a deep pit presents an objective hazard, the occupier’s duty is based on taking reasonable care for the safety of visitors exposed to it (for example, by putting up warning signs or fencing it off).

Special Visitors

The duty contained in s.2(2) is the commonly applicable one. However, OLA 1957 provides for two special sorts of visitors: children and skilled visitors, whose characteristics affect what reasonable care requires in the circumstances.

s.2(3)(a) warns that children can be expected to be less careful than adults, and, by implication, that a greater level of care might be required to keep them from harm. The common law has sought to strike a balance between the responsibilities of parents and occupiers to prevent harm from befalling children. In Phipps v Rochester Corporation [1955] 1 QB 450, decided before the 1957 Act, a 5-year-old was walking, with his 7-year-old sister, across some land owned by the defendant, which was under development. The 5-year-old fell into a trench dug for such purposes, and was injured. The court ruled that the occupying council was not liable - just as an assumption could be made that children would be less careful, the council could reasonably expect an accompanying adult to protect a young child from the obvious danger of the trench. Thus, to avoid shifting parental responsibility to landowners, the claim was denied.

However, if land holds either concealed danger, or something which might allure children to it, reasonable care may require the occupier to take further precautions, as in Glasgow Corporation v Taylor [1922] 1 AC 44. A seven-year-old died after eating poisonous berries which were in a public park. The father alleged that the fenced area had a gate easily opened by children, that the council knew the berries were poisonous and that there was no adequate warning. On this Scottish appeal the House of Lords held that these allegations entitled him to proceed to trial. It was also noted that an occupier who is aware that something on his land might act as an allurement to children (for instance, berries that look edible) should take greater care to prevent that risk from manifesting.

This ruling fits into the theory of parental responsibility - parents cannot be expected to protect against a danger they cannot see - and this goes doubly where such dangers are not adequately signposted.

Of course, not all minors are equal - older children are less susceptible to harm than younger children. Thus, the relevant level of care will depend on the nature of the risk and the age and awareness of the child involved. This principle can be seen at work in Titchener v British Railways Board [1983] 1 WLR 1427 (decided under the Occupiers’ Liability (Scotland) Act 1960). The claimant, a 15-year-old girl, was walking with her 16-year-old boyfriend. They took a shortcut across a railway line and were both struck by a train, severely injuring the claimant and killing her boyfriend. They had accessed the railway through a gap in the fence, and there was a pathway worn up to the gap, suggesting that this was a point of repeated trespass. It was established that the defendant either knew of the gap, or would have known of it upon reasonable inspection. The House of Lords held that the board was not required to improve the fence for this claimant, who understood the danger from passing trains and had voluntarily taken that risk.

It can, thus, be concluded that what reasonable care requires towards a child depends on the particular risk and the child’s age and understanding. There is no fixed age at which every danger should be obvious.

At the opposite end of the spectrum lie skilled visitors, as noted in s.2(3)(b). Occupiers may expect such visitors to appreciate and guard against special risks ordinarily incident to their calling, so far as they are free to do so. So an occupier may expect an electrician to take the usual precautions against electric shock when working on a circuit.

This can be seen in General Cleaning Contractors Ltd v Christmas [1953] AC 180. The claimant was cleaning windows on a customer’s building. He was standing on a window sill, and was using an open sash window for support. The bottom sash closed on his fingers, he lost his balance and fell, injuring himself. His action against the occupiers failed in the Court of Appeal ([1952] 1 KB 141) - it was held that as a professional, he should have known how to mitigate the risk he was running.

It should be noted that just because a risk is of a nature which might be encountered by a skilled visitor, that does not dispel the entirety of the occupier’s duty of care - an occupier must still act reasonably. This is sensible - an occupier can’t invite an electrician to their property and then fail to tell them that the first light switch they use will likely kill them. Furthermore, an occupier will still have a duty of care towards skilled visitors if they are harmed by a risk which they could not reasonably have been expected to guard against. Again, this is a sensible formulation of the law - there are certain risks which remain dangerous despite the application of skill. Consider a zoo-owner who negligently allows a grizzly bear to get loose. Just because the zoo-keepers are skilled at dealing with animals does not mean that the zoo-owner can escape liability for any injuries they might incur whilst corralling the animal.

This principle applies in the case of injuries incurred by firefighters, as in Salmon v Seafarer Restaurants Ltd [1983] 1 WLR 1264. A fireman was injured in an explosion whilst attending a chip shop fire caused by the occupier’s negligence. The defendant occupier argued that, with regard to a fireman attending a fire, his duty only existed to protect him against a special or additional risk above those he might ordinarily encounter as a result of his job. This argument was rejected - whilst the firefighter’s skills were relevant to determining the applicable duty of care, the foreseeable risks of attending a fire negligently caused by the occupier included ordinary firefighting risks. The claim therefore succeeded.

Warnings

As noted at the top of this section, the duty of care is based on protecting visitors, rather than removing hazards altogether. This means that the humble warning sign forms a key element of fulfilling the duty. However, the addition of a warning to a hazard will not absolve an occupier of liability. To return to the escaped bear example: a zoo owner telling his keepers ‘look out, you have to capture a bear!’ will not let him escape liability for bear-related injuries. As per s.2(4)(a), warnings only fulfil the occupier’s duty of care if they enable a visitor to be reasonably safe.

Since signs form the primary method of warning visitors, various principles have built up around their implementation. In general, a specific hazard will require a specific warning - so if the hazard is an electric fence, then an appropriate warning would be: ‘Caution: Electric Fence’, rather than just ‘Caution’. Visitors shouldn’t have to play ‘guess the hazard’ whenever they see a warning. Hidden dangers will require greater attention to be drawn to them (since by definition a visitor cannot be relied upon to avoid them of their own volition). Conversely, an obvious risk will often require no warning, as in Staples v West Dorset District Council [1995] 93 LGR 536. The claimant was badly injured when, crouched on a harbour wall to take a photo, he slipped and fell off of the wall, some 20 feet high. The harbour wall was covered in algae, and thus very slippery when wet. He brought an action against the defendant council, arguing that no warning signs were present regarding the danger of slipping. The claim failed - the dangers of slipping on algae on a harbour wall were obvious, and the claimant was aware of them. The defendant thus had no duty to warn.

Even an obvious risk may call for precautions beyond a warning. In White Lion Hotel v James [2021] EWCA Civ 31, a guest fell from a low bedroom window that could be fully opened. The obvious risk of falling did not relieve the hotel of the duty to take the reasonable precaution of fitting a restrictor. It should also be noted that the effectiveness of a warning will depend on the concerned visitor - warning signs will do little to deter younger children, for example (although they do enhance their parents’ ability to keep them safe).

Independent Contractors

As noted in the chapter on vicarious liability, it is usually not possible to attribute the actions of an independent contractor to their employer. However, s.2(4)(b) provides that an occupier is not, without more, answerable for a danger caused by the faulty execution of construction, maintenance or repair work by an independent contractor where the occupier has acted reasonably in entrusting the work to the contractor and has taken such steps (if any) as were reasonably necessary to satisfy themselves that the contractor was competent and that the work had been properly done. Thus, liability is more likely where it was unreasonable to entrust the work to an independent contractor in the first place, where the occupier failed to take reasonable steps to ensure the independent contractor was competent, or where the occupier failed to take reasonable steps to check the work of the independent contractor. So if a school hires an independent contractor to clear ice off of steps, they will be expected to check that it has been done (as in Woodward v Mayor of Hastings [1945] KB 174). Conversely, an occupier may reasonably rely on a competent specialist to check work that the occupier has no technical means of checking (as in Haseldine v Daw & Son Ltd [1941] 2 KB 343).

Defences

There are three commonly encountered defences when dealing with OLA 1957. The first is the defence of consent, as per s.2(5). Visitors will often be in situations in which they are aware of a risk, but choose to continue anyway - so a visitor who is aware of a wild horse, but decides to continue into its field regardless, may well be held to have consented to the risk. However, mere awareness of a risk does not automatically amount to consent - the risk must be freely and willingly accepted by the visitor.

Secondly, there will often be scenarios in which a visitor has acted poorly around a risk, and thus the defence of contributory negligence can be raised. So visitors who fool around near a cliff edge and fall off will likely be held to have contributed to their injuries. Where both parties are at fault, damages are reduced to the extent the court considers just and equitable under s.1 of the Law Reform (Contributory Negligence) Act 1945.

Thirdly, exclusion clauses (a matter of contract law) will often be employed by occupiers as a means to avoid liability. However, this is subject to important statutory limits. Where the Unfair Contract Terms Act 1977 applies to business liability, liability for death or personal injury resulting from negligence cannot be excluded or restricted (s.2(1)), and liability for other loss or damage resulting from negligence can only be excluded or restricted insofar as the term or notice satisfies the requirement of reasonableness (s.2(2)). In consumer cases, ss.62 and 65 of the Consumer Rights Act 2015 govern unfair terms and notices and prevent a trader from excluding liability for death or personal injury resulting from negligence. Both Acts make an exception for dangerous premises where granting recreational access is outside the occupier’s business purposes (1977 Act, s.1(3), and 2015 Act, s.66(4)). The 1977 Act exception also covers educational access.

Occupiers Liability Act 1984

OLA 1984 provides the basis for the duty that an occupier has towards those who are not lawful visitors. This includes trespassers - those who lack permission in the first place, as well as those who have overstepped the bounds of their permission. OLA 1984 also covers those exercising access rights under access agreements, access orders, and modern right to roam legislation, although in the case of rights under the Countryside and Rights of Way Act 2000 the duty is subject to important statutory restrictions. While the statutory access right is exercisable, s.1(6A) generally excludes a duty under the 1984 Act for risks resulting from natural features of the landscape, rivers, streams, ditches or ponds, or from passing over, under or through any wall, fence or gate, except by proper use of a gate or stile. On coastal margin the exclusion extends to risks resulting from any physical feature. Neither exclusion applies where the occupier intentionally or recklessly created the risk. Section 1A requires regard to the burden on the occupier, the character of the countryside and relevant statutory guidance. Section 1(7) separately excludes a duty under the Act to people using a highway, other than a ferry or waterway.

It should also be noted that OLA 1984 only imposes a duty with regard to personal injury, rather than damage to property.

Much of the content of OLA 1984 matches that of OLA 1957. The primary difference between the two is the conditions which must be met before a duty of care comes into existence.

Defining ‘Trespasser’

The exact definition for trespasser can be found in Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358 (facts unimportant, since the judgement is based on out-of-date law): “he who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to”.

The Duty of Care towards Trespassers

The relevant duty of care can be found in s.1(3) of the Act. It describes three criteria which must be met before a duty arises. Firstly, the occupier must be aware of the hazard, or have reasonable grounds to believe it exists. The question is what the occupier actually knew and whether those facts gave reasonable grounds for that belief.

Secondly, the occupier must know or have reasonable grounds to believe that the person is, or may come, in the vicinity of that danger. The ‘reasonable grounds’ element is important here - an occupier does not need to be looking out their window at the time a trespasser is injured by a hazard. The grounds must relate to the particular danger and the circumstances at the relevant time. In Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231, knowledge of summer swimming gave no reasonable grounds to expect a diver in the harbour at midnight in December. Examples of such grounds include an occupier’s knowledge that people often use their field as a shortcut, or that children often use a broken fence as a way to access a building site managed by the occupier.

Thirdly, the relevant risk must be one which the occupier would reasonably be expected to protect against. This is not subjective, but objective - the courts will ask what the reasonable occupier would have done. This will depend a lot on the nature of the risk - a hidden and serious risk will require greater action than an obvious and mild one - contrast a minefield with some nettles. We’d expect a reasonable occupier to go to great lengths to protect trespassers from the former, but not the latter. If all three conditions are met, s.1(4) requires reasonable care in all the circumstances to prevent injury from the danger. Reasonable steps to warn of the danger or discourage the risk may discharge that duty (s.1(5)). No duty is owed for a risk willingly accepted (s.1(6)). The application of the duty of care can be seen in Young v Kent County Council.

As with OLA 1957, greater lengths may be needed to protect children than adults - so pay special attention when it is known that children are trespassing. Nevertheless, the courts will rarely shy away from acknowledging the fact that there comes a point at which children should be aware of a risk they are taking. An example of this can be seen in Keown v Coventry Healthcare NHS Trust [2006] 1 WLR 953. The claimant, an 11-year-old boy, was seriously injured when he fell from a fire escape that he was climbing on. The claimant admitted at trial that he knew that his actions were dangerous, and that he should not have been climbing on the fire escape. The claim therefore failed. Notably, the courts also held that the fire escape was not a hazard (as per the first requirement to find a duty of care) - the fire escape was perfectly safe, it was the actions of the claimant which rendered it hazardous.

The same principle that was employed in the analysis of the hazard in Keown can also be seen to operate in Tomlinson v Congleton Borough Council [2004] 1 AC 46. The defendant occupier owned a large country park containing a lake formed from a former sand quarry. Swimming was prohibited, and notices were posted around the lake, and rangers were deployed to, amongst other duties, prevent swimming. The claimant dove into shallow water and broke his neck. The claim failed. The claimant became a trespasser when he went into the lake to swim. The injuries were not due to a hazard, but instead due to the claimant’s own freely taken actions. The bench also noted, from a policy perspective, that destroying the beaches to discourage swimming would deprive other visitors of their enjoyment of the park.

It can, thus, be seen that the courts will not define something as a hazard on the basis of it being involved in an injury, but instead will ask whether the injury arose from a danger due to the state of the premises or to something done or omitted there. This will particularly be the case when injury is caused by an action taken by a fully autonomous claimant.

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