3.3 - Occupiers' liability

Legal Map

Occupiers' liability is a land-based tort. It is about injury caused by dangers connected with premises, not every careless act that happens to occur on land. In an AQA answer, the first task is to choose the correct statutory route.

The legal consequence of classification is important. A visitor is protected by the 1957 Act's common duty of care. A trespasser is not automatically protected; the 1984 Act only imposes a duty if its statutory conditions are satisfied. This is why AQA examiner reports stress that strong answers identify premises, occupier and claimant status before discussing breach.

Do not assume that a person is a visitor simply because they are physically on the land. Permission may be express, implied, limited by purpose or withdrawn. Equally, a sign or fence does not automatically end the analysis; it may help show that there was no permission, and it may be relevant to warnings, breach or consent.

Occupier, Premises And Status

The gateway elements are shared by both regimes: identify the premises, identify the occupier, and classify the claimant.

Premises are broad. Under the 1957 Act, premises include fixed and movable structures, such as buildings, vehicles, vessels and aircraft. AQA mark schemes also credit dangers caused by the state of the premises or by things done or omitted to be done on them. That matters because a collapsing door, an unsafe staircase or a dangerous object forming part of the premises can be analysed differently from a claimant's own risky activity.

Wheat v Lacon is the standard AQA authority: there can be more than one occupier where more than one person has enough control. Ownership is evidence, but the legal question is control. A tenant, business operator, local authority or contractor may be an occupier if they control the relevant area or danger.

A visitor may be invited, permitted, entering under a contract, or entering under a legal right. The permission is tied to purpose: someone allowed into a shop during opening hours to buy goods is not necessarily allowed into staff-only storage areas or onto the roof. The classic idea is that permission to use the stairs is not permission to use the banister as a slide.

Regular entry can sometimes raise an argument about implied permission, but AQA has rewarded the point that fences, locked gates and notices forbidding entry strongly suggest no permission. A child can still be a trespasser; childhood affects duty and breach, not the basic classification.

Visitors Under The 1957 Act

The Occupiers' Liability Act 1957 protects lawful visitors. Section 2 imposes the common duty of care.

This is not a guarantee of safety. It is a fault-based reasonableness standard. The court asks what the reasonable occupier would have done in the circumstances, considering factors such as:

• how likely the risk was
• how serious the possible injury was
• how obvious or hidden the danger was
• how easy and cheap precautions would have been
• what the occupier knew or ought reasonably to have known
• why the visitor was on the premises

For AQA, the operational sequence is:

1. Identify the premises, occupier and visitor.
2. Identify the danger connected with the premises.
3. State the s2 common duty of care.
4. Apply breach: did the occupier take reasonable care to make the visitor reasonably safe for the permitted purpose?
5. Consider warnings, special categories of visitor, independent contractors and defences.
6. Conclude on liability and compensatory damages.

Children require particular care. Section 2(3)(a) says an occupier must be prepared for children to be less careful than adults. That does not make occupiers insurers of children. Phipps v Rochester Corporation illustrates the limiting point: an occupier may be entitled to expect very young children to be accompanied by an adult where the danger would be obvious to the adult. The stronger the hidden danger or attraction to children, the more likely the reasonable occupier must take extra precautions.

Use the child rule as a calibrated rule, not a slogan. A six-year-old visitor near an unfenced excavation, a twelve-year-old ignoring a clear warning, and a toddler accompanied by a parent raise different breach arguments.

Warnings, Callings And Contractors

Warnings are not magic words. Under s2(4)(a) of the 1957 Act, a warning only helps the occupier if, in all the circumstances, it was enough to enable the visitor to be reasonably safe. A sign saying 'Careful' may be too vague for a hidden electrical danger; a clear barrier and specific warning may be enough for an obvious temporary hazard.

The legal question is not simply 'was there a sign?' but:

Specialist visitors are treated differently. Section 2(3)(b) says an occupier may expect a person exercising a calling to appreciate and guard against special risks ordinarily incident to that calling. Roles v Nathan illustrates this: chimney sweeps warned about fumes were expected to guard against risks linked to their professional task. The common AQA error is to treat s2(3)(b) as a complete defence. It is not. It adjusts what reasonable care requires. If the danger is outside the specialist's task, hidden in an unusual way, or made worse by the occupier's poor information, the occupier may still be liable.

Independent contractors are separate. Section 2(4)(b) can help an occupier where damage is caused by faulty work by an independent contractor, but only if it was reasonable to entrust the work to the contractor, the occupier took reasonable steps to check the contractor's competence, and, where reasonable, checked that the work was properly done. Haseldine v Daw shows that occupiers may rely on specialists for technical work such as lift maintenance. Woodward v Mayor of Hastings shows the limit: simple hazards may still require direct checking.

A warning is different from excluding liability by contract or notice. Section 2(1) allows the duty to be restricted in principle, but a business occupier cannot exclude liability for death or personal injury resulting from negligence under section 2(1) of the Unfair Contract Terms Act 1977. For this purpose negligence includes the 1957 Act common duty. In a consumer arrangement, the Consumer Rights Act 2015 section 65 supplies the corresponding prohibition. A parent's signed injury waiver therefore does not automatically defeat a child's injury claim. Neither a signature nor awareness of danger alone proves freely given acceptance of the specific risk.

Keep the categories apart. A repairer injured by the danger they were called to repair raises s2(3)(b). A visitor injured because a contractor did bad work may raise s2(4)(b). They are not the same issue.

Trespassers Under The 1984 Act

The Occupiers' Liability Act 1984 protects non-visitors, including trespassers, but only in a limited way. It reflects a duty of common humanity: the law may require protection against serious dangers even for someone who should not be there, but it does not treat trespassers like ordinary visitors.

The 1984 Act is built around three steps.