Introduction
Occupier liability constitutes a specific area of tort law that addresses the duties and responsibilities of those who occupy land or premises towards individuals who enter that land. This legal framework establishes a standard of care for occupiers, outlining the measures they must take to ensure the safety of visitors. The technical principles governing this area of law are primarily derived from the Occupiers' Liability Act 1957, which pertains to lawful visitors, and the Occupiers' Liability Act 1984, which concerns trespassers and other non-visitors. These Acts, interpreted and refined through extensive case law, define key requirements for an occupier to fulfill their duty of care. The legislation and its application stipulate that occupiers must take reasonable steps to protect against foreseeable risks on their property.
Defining the Occupier and the Premises
The concept of an "occupier" is not confined to landowners; it includes anyone who exerts a sufficient degree of control over premises. This may be a tenant, a landlord, or a contractor. The landmark case of Wheat v Lacon [1966] AC 552 established that more than one party can be deemed an occupier. The term "premises" as used in the Occupiers' Liability Acts encompasses not just land and buildings, but also extends to any fixed or movable structure, including vessels, vehicles, or aircraft. This broad definition ensures that a wide variety of situations are covered by the legislation. The question of whether a person is an occupier is therefore determined by the level of control they possess, rather than merely ownership of the property.
Duties to Lawful Visitors Under the 1957 Act
The Occupiers' Liability Act 1957 defines the standard of care owed to lawful visitors – those who have permission, express or implied, to be on the premises. This standard is a "common duty of care", requiring occupiers to take such care as is reasonable in all the circumstances to ensure that visitors are reasonably safe when using the premises for the purposes for which they were invited. According to s2(2) of the act, the duty is to protect against dangers "due to the state of the premises or to things done or omitted to be done on them." This duty is not absolute; it requires an occupier to take reasonable steps rather than guaranteeing the complete safety of visitors. What is reasonable will depend on the specific circumstances of the case.
Special Considerations for Children
The Act recognizes that children cannot appreciate danger in the same way as adults. As such, s2(3)(a) states that an occupier "must be prepared for children to be less careful than adults". This does not impose a strict liability on occupiers, but it does require them to consider that children may not recognise all hazards. In Glasgow Corp v Taylor [1922] 1 AC 44, the court found that a council had a duty to prevent children from accessing and eating poisonous berries. This shows a higher standard for risk management when children are involved.
Special Considerations for Skilled Professionals
Conversely, s2(3)(b) provides that "an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so". This acknowledges that individuals with specialised skills should be capable of protecting themselves from dangers connected with their profession. Roles v Nathan [1963] 1 WLR 1117 is a case that exemplifies this where chimney sweeps were injured due to carbon monoxide poisoning, it was held that the occupier was not liable since the professional had some awareness of the risks.
Impact of Warnings
An occupier can issue warnings about specific dangers, but these are not always sufficient to discharge the duty of care. Under s2(4)(a), a warning will only absolve the occupier of liability if, in all the circumstances, it enables the visitor to be reasonably safe. In Staples v West Dorset DC [1995] 93 LGR 536, a warning about algae on a slipway was deemed insufficient when the danger was obvious to the claimant. The court held that where a visitor was already aware of a risk, the purpose of a warning is superfluous.
Liability for Independent Contractors
The Act also addresses situations where a danger is caused by the negligent actions of an independent contractor. According to s2(4)(b), an occupier is not automatically liable if they acted reasonably in employing a competent contractor and took reasonable steps to ensure the work was properly completed. A case that exemplifies this is Woodward v Mayor of Hastings [1945] KB 174, where a school was liable for the negligence of an independent contractor employed for cleaning work, due to their lack of monitoring of the task. This highlights the responsibility of the occupier to assess and consider the standard of work completed.
Volenti non fit injuria
Under s2(5) of the Act, an occupier does not have a duty to protect visitors from risks that they have willingly accepted, a legal principle known as volenti non fit injuria. This defense applies only when the visitor is fully aware of the nature and extent of the risk and has consented to it without coercion. In Simms v Leigh RFC [1969] 2 All ER 923, the court held that a rugby player had accepted the risks of injury by engaging in the sport, absolving the occupier from liability under s2(5). This underscores the importance of a visitor's informed consent when assessing the scope of liability.
Duties to Non-Visitors Under the 1984 Act
The Occupiers' Liability Act 1984 extends a duty of care to trespassers and other non-visitors, although this is not as extensive as the duty owed to lawful visitors. Under this Act, occupiers must take such care as is reasonable in all the circumstances to see that non-visitors do not suffer injury on the premises due to a danger from the state of the premises. The standard of care is triggered by three criteria in s1(3): the occupier must be aware of the danger, know or have grounds to believe the non-visitor is in the vicinity of that danger, and the risk must be one that the occupier can reasonably be expected to offer some protection against. In Swain v Natui Ram Puri [1996] P.I.Q.R. P422, it was held that the occupier must have actual knowledge of the danger and of the potential presence of a trespasser for a duty to arise. This underscores that a duty is not automatically imposed due to potential risks.
Distinguishing State of Premises from Acts
The courts must differentiate between the state of premises and activities undertaken on them. In Donoghue v Folkestone Properties [2003] 2 WLR 1138, a trespasser diving into shallow water was considered to be injured due to their own act, not the state of the premises; hence the occupier was not liable. Similarly, the court in Tomlinson v Congleton BC [2004] 1 AC 46 held that the occupier was not liable when a trespasser dived into a lake, disregarding clear warning signs, emphasizing that no duty exists to protect from obvious risks.
The "Common Humanity" Principle
Prior to the 1984 Act, the Herrington v British Rail Board [1972] AC 877 case established a 'duty of common humanity' towards trespassers, particularly children. This principle, later codified in the 1984 Act, required occupiers to take reasonable steps to protect against known risks on their premises. In Keown v Coventry NHS Trust [2006] 1 WLR 953, an 11-year-old climbing a fire escape was held to be aware of the risk and therefore the occupier was not liable. The principle in Herrington remains relevant, but is applied with due consideration of the non-visitor’s knowledge and experience of risk.
Discharging the Duty
Under s1(5) of the 1984 Act, a duty of care can be discharged by giving a warning or discouraging trespassers. This does not mean that such actions automatically absolve the occupier from liability, but constitutes a reasonable measure to deter risk. These actions must be reasonable for the circumstances. In Westwood v Post Office [1973] 1 QB 591 a warning sign that was disregarded by the claimant was held to have adequately discharged the duty.
Defences and Limitations of Liability
Several factors can limit or negate an occupier's liability. These include the defense of volenti non fit injuria, as discussed earlier, and situations where the danger is obvious. If a visitor acts recklessly, they can be held liable for contributory negligence. The defense of illegality may also be applicable when claimants are injured while engaged in unlawful behaviour. Also, the courts consider the practicalities and costs to the occupier when addressing a hazard, as illustrated in Holbeck Hall Hotel v Scarborough BC [2001] QB 836, where the extent of damage from an omission to remove a source of danger is only liable to that which is reasonably foreseeable.
Exclusion of Liability
For commercial premises, the Unfair Contract Terms Act 1977 restricts the ability of occupiers to exclude liability. Specifically, s2(1) of the act stipulates that liability cannot be excluded for death or personal injury resulting from negligence, which includes a breach of duty under the 1957 Act. Whilst for property damage, exclusions of liability are subject to a reasonableness test. In cases of non-business occupancies, these limitations on excluding liability do not apply.
Landlord’s Liability under the Defective Premises Act 1972
The Defective Premises Act 1972 addresses liabilities relating to defective buildings. Under s4, if a landlord has an obligation or right to maintain or repair a property, they owe a duty of care to all persons who may be affected by defects in the state of the premises. The duty is triggered when the landlord knows, or ought to know, of the relevant defect. This duty applies even if the landlord is not in control of the property, as the responsibility to make the property reasonably safe for those who may use it is imposed on them. The landmark case of D&F Estates v Church Commissioners [1989] AC 177, is relevant when determining if damage to property is recoverable, due to the implementation of the 'complex structure theory' where elements of a structure can be treated as separate, with one element causing damage to another.
Conclusion
Occupier liability represents a crucial aspect of tort law, balancing the rights of individuals to safe environments with the responsibilities of property owners to maintain their premises with reasonable care. The legal framework, as established through the Occupiers' Liability Acts of 1957 and 1984, along with other relevant legislation, provides a structure for assessing and addressing these competing interests. Whilst the laws offer some consistency, this area of law is dynamic, shaped by new interpretations arising from frequent judicial review and subsequent new case law. Occupiers must remain diligent and aware of their legal obligations in order to avoid litigation, by taking proactive steps to manage the potential risks associated with their property. The cases referenced illustrate that reasonableness is always at the heart of such claims, as is the balancing of the occupier’s rights with the safety and well-being of all persons who may enter their premises.
