H418/02 - Lawful visitors

Permission and control

An occupier's responsibility depends on control of a place and the entrant's permission to use it.

An occupier is someone with sufficient control over premises to make it reasonable to impose a duty of care. Ownership is evidence of control, but ownership and occupation are different. A tenant running a shop can control its floor even though someone else owns the building. Two people may both be occupiers, with responsibilities reflecting the areas and matters each controls. Premises include land, buildings and fixed or movable structures, such as a boat or vehicle.

In Wheat v E Lacon & Co Ltd (1966), a paying guest fell on a pub staircase. Both the brewery and its managers could be occupiers because control was shared. The brewery was not proved to have breached its duty. The case establishes the control test and multiple occupation; identifying an occupier does not by itself establish liability. Read the judgment.

A lawful visitor enters with express or implied permission for a particular place and purpose. An invitation to dinner is express. Opening a shop normally implies permission to enter and browse during opening hours. Under section 2(6) of the Occupiers' Liability Act 1957, someone exercising a legal right of entry, such as an authorised inspection, is treated as permitted for that purpose. Not every lawful entrant is a 1957 Act visitor: statutory countryside access has its own treatment, and highway users are outside the ordinary visitor framework.

Permission has limits. A museum ticket permits the exhibition route; it does not necessarily permit entry behind a clearly marked staff-only door. A person can start as a visitor and become a trespasser by exceeding the area, time or activity permitted. However, a sign describing a risk is not necessarily a withdrawal of permission: “Wet floor” warns customers who remain visitors. Nor does every careless act convert a visitor into a trespasser. Establish the actual permission and its limits before choosing an Act.

Original example: Leena manages a café and controls cleaning; the landlord alone controls repairs to the external steps. A customer's slip on a spill points towards Leena's responsibility. A fall caused by a defective step may raise responsibility for the landlord, Leena or both, depending on retained control and what each could reasonably do. “Sue the owner” skips the key legal issue.

Common duty and breach

The 1957 Act requires reasonable care for a visitor's reasonable safety, rather than a guarantee that no accident will happen.

Section 1 concerns dangers due to the state of the premises or things done or omitted there. Section 2(2) sets the common duty of care: take reasonable care in all the circumstances so that the visitor is reasonably safe using the premises for the permitted purpose. The focus is the visitor's safety in that use, not making every feature of the site perfectly safe for every imaginable activity. The Act can protect against personal injury and property damage. Read sections 1 and 2.

Breach means falling below that reasonable standard. Relevant circumstances include the likelihood of injury, its possible seriousness, whether the danger is obvious, the visitor's expected abilities, and the cost and practicality of precautions. A proportionate inspection and cleaning system may be reasonable; constant surveillance of every floor usually is not. A dangerous hole known to staff beside the only exit calls for a prompt repair or effective barrier because the risk is serious and a temporary precaution is easy.

Consider two original situations. A shop leaves a reported puddle on its entrance floor for an hour while a warning cone stays behind the counter. The known risk and available precaution support breach. In contrast, a customer drops water moments before another slips, despite reasonable inspections. The accident alone does not prove breach. Ask whether the occupier ought reasonably to have discovered and dealt with it in time.

The claimant must also connect breach to actionable harm: would the injury have occurred without the failure, and is the kind of harm within the relevant risk? A poor inspection system does not cause a fall if reliable evidence shows the claimant tripped over their own untied shoe on an otherwise safe floor. A fracture from slipping on the unaddressed spill is a foreseeable kind of harm even if its severity is unusual.

Tomlinson v Congleton Borough Council (2003) distinguishes premises dangers from risks created by a chosen activity. An adult dived in an ordinary lake, contrary to notices, and struck its sandy bottom. The House of Lords rejected liability. Lord Hoffmann treated the injury as arising from the diving rather than a hidden defect; the judgments also stressed reasonable precautions and personal responsibility. The reasoning is relevant to both occupiers' Acts. It does not mean that a concealed obstruction or an unsafe constructed diving platform is immune from liability. Read the judgment.

Children and skilled visitors

The same common duty adapts to the abilities and permitted activities of the visitor.

Section 2(3)(a) says the occupier must be prepared for children to be less careful than adults. A bright object beside an unfenced hole may attract a young child who does not appreciate the danger. A warning that an adult understands can be ineffective for a child who cannot read. The child's age, likely behaviour and the likelihood of adult supervision matter. Reasonable expectations of supervision are circumstances to assess, not a rule that all responsibility transfers to parents whenever a child visits.

Original example: a family attraction places colourful toy boats beside an unfenced maintenance pit. Young children predictably approach them. Covering the pit or separating the display is a stronger precaution than a small “Keep clear” sign. Change the facts: the danger is an ordinary stream in a public landscape with no hidden hazard or special attraction. Reasonable care does not necessarily require fencing every natural feature. The discussion of natural dangers in Tomlinson, including earlier authority, illustrates that protection must remain proportionate.

Section 2(3)(b) permits an occupier to expect a visitor exercising a calling, meaning their skilled trade or profession, to recognise and guard against special risks ordinarily associated with that work, so far as the occupier leaves them free to do so. This is not a blanket exception for anyone employed on site. The risk must relate to that person's expertise and the person must be able to take the relevant precautions.

A qualified electrician asked to inspect isolated electrical equipment can be expected to understand the usual electrical risks and use appropriate methods. The same electrician cannot be assumed to know about a concealed rotten stair. If the occupier falsely states that a live supply has been isolated, or prevents the electrician from switching it off, the freedom-to-guard condition becomes important. Expertise reduces the precautions reasonably required against the relevant professional risk; it does not justify concealing a hazard.