Occupiers' liability

What you'll learn

• How to decide whether the Occupiers’ Liability Act 1957 or Occupiers’ Liability Act 1984 applies.
• The duty owed to lawful visitors and when that duty is breached.
• The narrower duty owed to trespassers and the key statutory conditions.
• The main defences and evaluation points for AO3.

The big idea

Occupiers’ liability is a tort about injuries caused by the condition of premises, or things done or omitted on premises. The first question is not “was the occupier careless?” but what was the claimant’s legal status when they were injured?

If the claimant was a lawful visitor, use the Occupiers’ Liability Act 1957. If the claimant was a trespasser, use the Occupiers’ Liability Act 1984.

Prerequisites: occupier, premises, visitor

Who is an occupier?

In Wheat v Lacon (1966), a paying guest fell on an unlit staircase at a pub. Both the brewery owner and the manager could be occupiers because both had some control. The principle is that control, not ownership, is the key test.

In Harris v Birkenhead Corporation (1976), a child was injured in an empty house that the council had taken steps to acquire. The council had sufficient control and was treated as the occupier, even though formal possession was incomplete.

What are premises?

“Premises” is broad. It includes land, buildings, fixed structures and movable structures such as vehicles, vessels and aircraft under s1(3)(a) Occupiers’ Liability Act 1957.

Lawful visitors under the 1957 Act

Examples include a customer in a shop, a guest invited into a house, a ticket-holder at a cinema, or a police officer entering under lawful authority.

Permission can be limited by time, place or purpose. If someone goes beyond that permission, they may become a trespasser. In The Calgarth (1927), Scrutton LJ gave the famous idea that permission to use stairs does not include permission to slide down the banisters.

The 1957 Act: duty owed to lawful visitors

Under s2(2) Occupiers’ Liability Act 1957, an occupier owes the common duty of care.

This does not mean the occupier must make the premises completely safe. The visitor must be reasonably safe.

In Laverton v Kiapasha Takeaway Supreme (2002), a customer slipped on a wet takeaway floor during rainy weather. The occupier had used mats and a cleaning system, so there was no breach. The principle is that the occupier must take reasonable care, not guarantee perfect safety.

Breach under the 1957 Act

Whether the occupier has breached the duty depends on all the circumstances. The Act gives specific guidance.

Children: s2(3)(a)

Under s2(3)(a), an occupier must be prepared for children to be less careful than adults.

In Glasgow Corporation v Taylor (1922), a child ate poisonous berries in a park and died. The berries were attractive to children, so the occupier should have guarded against the danger. This is often called an allurement, meaning something tempting to children.

However, in Phipps v Rochester Corporation (1955), a young child fell into a trench on open land. The occupier was not liable because it was reasonable to expect very young children to be accompanied by a responsible adult.

Skilled visitors: s2(3)(b)

Under s2(3)(b), an occupier may expect a person exercising a particular skill or calling to guard against risks ordinarily linked to that work.

In Roles v Nathan (1963), chimney sweeps were warned about carbon monoxide but continued working and died. The occupier was not liable because the risk was an ordinary risk of their specialist work.

Warnings: s2(4)(a)

A warning is only enough if, in all the circumstances, it enables the visitor to be reasonably safe.

In Staples v West Dorset District Council (1995), a harbour wall was obviously slippery when wet. No warning was required because the danger was obvious. By contrast, if a danger is hidden or unusually serious, a warning may need to be clearer and more specific.

Independent contractors: s2(4)(b)

An occupier is not automatically liable for dangers caused by an independent contractor. The occupier may avoid liability if it was reasonable to entrust the work to the contractor and the occupier took reasonable steps to check the contractor’s competence and, where possible, the work done.

In Haseldine v Daw (1941), a lift was negligently repaired by specialist engineers. The occupier was not liable because it was reasonable to rely on specialists. In Woodward v Mayor of Hastings (1945), a school was liable after icy steps were badly cleaned by a cleaner, because checking the work was straightforward.

Defences under the 1957 Act

Consent: s2(5)

Volenti non fit injuria means “to a willing person, no injury is done”. Under s2(5), an occupier is not liable for risks willingly accepted by the visitor.

In Geary v JD Wetherspoon plc (2011), a customer was injured sliding down a banister. The risk was obvious and voluntarily accepted, so the occupier was not liable.

Contributory negligence

Under the Law Reform (Contributory Negligence) Act 1945, damages may be reduced where the claimant failed to take reasonable care for their own safety.

Exclusion of liability

Under s2(1) Occupiers’ Liability Act 1957, an occupier may restrict or exclude the duty, but this is limited by statute. The Unfair Contract Terms Act 1977 restricts exclusion of liability for personal injury caused by negligence, and the Consumer Rights Act 2015 protects consumers against unfair terms and notices.

Trespassers under the 1984 Act

Historically, trespassers had very little protection. In British Railways Board v Herrington (1972), a child trespasser was injured on an electrified railway line. The House of Lords recognised a limited duty of “common humanity”, which helped lead to the Occupiers’ Liability Act 1984.

The 1984 Act: when is a duty owed?

The 1984 Act does not automatically impose a duty to every trespasser. Under s1(3), a duty arises only if three conditions are met:

1. The occupier is aware of the danger or has reasonable grounds to believe it exists.
2. The occupier knows or has reasonable grounds to believe that the trespasser is in the vicinity of the danger, or may come into that vicinity.
3. The risk is one against which, in all the circumstances, the occupier may reasonably be expected to offer some protection.

If these conditions are met, s1(4) says the occupier must take such care as is reasonable in all the circumstances to see that the trespasser does not suffer injury on the premises because of the danger concerned.

Key cases on the 1984 Act

In Rhind v Astbury Water Park (2004), a trespasser dived into a lake and hit a submerged container. The occupier did not know, and had no reasonable grounds to know, about the container. There was no duty under s1(3).

In Donoghue v Folkestone Properties (2003), a trespasser dived into a harbour at midnight in winter. The occupier had no reason to expect trespassers at that time, so no duty arose.

In Ratcliff v McConnell (1999), a student trespassed into an outdoor swimming pool at night and was injured diving. The danger was obvious, and no duty was owed.

In Tomlinson v Congleton Borough Council (2003), the claimant ignored warnings and injured himself diving into a lake. The risk came from his own dangerous activity rather than the state of the premises. The House of Lords stressed personal responsibility.

Defences under the 1984 Act

The main defences are similar, but the trespasser’s position is weaker.

Under s1(5), a duty may be discharged by taking reasonable steps to give a warning of the danger or to discourage people from taking the risk. The warning must still be reasonable in the circumstances.

Under s1(6), no duty is owed for risks willingly accepted by the trespasser, so volenti non fit injuria may apply.

Contributory negligence can also reduce damages. In Revill v Newbery (1996), a burglar was shot by the occupier while trespassing. The occupier was liable, but damages were reduced for the claimant’s own fault.

AO3 evaluation: how fair and effective is the law?

The law tries to balance two competing interests: the claimant’s need for compensation after injury, and the occupier’s interest in not being treated as an insurer of everyone’s safety.

A key advantage is flexibility. Both Acts use reasonableness, allowing courts to consider the danger, the claimant’s age, the cost of precautions, warnings, and personal responsibility. This helps tort law achieve compensation and deterrence without demanding perfect safety.

A disadvantage is uncertainty. Because the test is fact-sensitive, it can be hard to predict outcomes. Similar accidents may be decided differently depending on small factual details, such as whether the danger was obvious or whether trespassers were expected at that time.

The distinction between visitors and trespassers is broadly fair. Lawful visitors are owed a stronger duty because they are invited or permitted to be there. Trespassers receive narrower protection because they are on the premises without permission. However, the 1984 Act also recognises that serious injury may still be preventable, especially where the occupier knows about a hidden danger.