Occupiers' liability - Common duty of care and its breach

Learning Outcomes

This article explores the common duty of care owed by occupiers to lawful visitors under the Occupiers' Liability Act 1957. It details who qualifies as an occupier and a visitor, the standard of care required, and how this standard varies for different types of visitors, such as children and skilled workers. It also examines factors constituting a breach of this duty, including the role of warnings and the liability for independent contractors. Your understanding of these principles is necessary for applying the law correctly to SQE1 assessment scenarios involving premises liability for visitors.

SQE1 Syllabus

For SQE1, you need to demonstrate understanding of the legal rules concerning occupiers' liability towards lawful visitors. This includes applying the core principles of the Occupiers' Liability Act 1957 effectively.

Pay particular attention in your revision to:

• Identifying who constitutes an 'occupier' and a 'visitor'.
• Understanding the scope and standard of the 'common duty of care' owed to visitors under OLA 1957, s 2(2).
• Recognising how the standard of care is adjusted for specific categories of visitors, particularly children and skilled workers.
• Determining the circumstances that constitute a breach of the common duty of care.
• Evaluating the effectiveness of warnings in discharging the occupier's duty.
• Understanding the occupier's liability concerning dangers created by independent contractors.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Who is considered an 'occupier' under the Occupiers' Liability Act 1957?
   1. Only the legal owner of the premises.
   2. Anyone physically present on the premises.
   3. Anyone with a sufficient degree of control over the premises.
   4. Only the tenant leasing the premises.
2. What is the 'common duty of care' owed to visitors under OLA 1957?
   1. To ensure the premises are completely safe at all times.
   2. To take reasonable care to ensure the visitor is reasonably safe for the purposes of their visit.
   3. To warn visitors of every possible danger.
   4. To compensate visitors for any injury sustained on the premises, regardless of fault.
3. How does the duty of care owed to child visitors differ from that owed to adult visitors?
   1. There is no difference; the same standard applies.
   2. Occupiers owe a lower standard of care to children.
   3. Occupiers must be prepared for children to be less careful than adults.
   4. Occupiers are strictly liable for any injury to a child visitor.
4. Can an occupier discharge their duty of care by employing an independent contractor to carry out work?
   1. Yes, always, as the contractor becomes solely responsible.
   2. No, the occupier always remains fully liable.
   3. Yes, provided the occupier acted reasonably in entrusting the work and ensuring the contractor was competent.
   4. Only if the contractor provides an indemnity.

Introduction

When individuals enter premises controlled by others, the law imposes specific duties on the person in control (the occupier) to ensure the safety of those entrants. The Occupiers' Liability Act 1957 (OLA 1957) governs the duty owed by occupiers to their lawful visitors. This article focuses on understanding this 'common duty of care', identifying who owes the duty and to whom, the standard required, and the factors that determine whether that duty has been breached. A firm understanding of these concepts is essential for addressing SQE1 questions concerning injuries sustained on premises due to their condition.

The Occupier and Premises

The OLA 1957 imposes duties on the 'occupier' of 'premises'. Neither term is exhaustively defined in the Act, relying instead on common law interpretation.

Who is an Occupier?

The key test for identifying an occupier is the degree of control they exercise over the premises. Ownership is not determinative; control is essential.

Key Term: Occupier
A person who has a sufficient degree of control over premises to the extent that they ought to realise that any failure on their part to use care may result in injury to persons coming lawfully upon the premises.

This means there can be more than one occupier of the same premises simultaneously, each potentially owing a duty of care relative to their sphere of control (Wheat v E Lacon & Co Ltd [1966] AC 552). For instance, both a landlord retaining control over common areas and a tenant occupying a flat could be occupiers.

What are Premises?

The term 'premises' under the OLA 1957 is broad. Section 1(3)(a) includes 'any fixed or moveable structure, including any vessel, vehicle or aircraft'. This encompasses not just land and buildings but also temporary structures like scaffolding or even ladders.

Key Term: Premises
Includes land, buildings, and any fixed or moveable structure, such as vessels, vehicles, or aircraft, over which an occupier exercises control.

Lawful Visitors

The common duty of care under the OLA 1957 is owed specifically to 'visitors'.

Key Term: Visitor
A person who has express or implied permission from the occupier to be on the premises, or who enters pursuant to a legal right (eg, under contract or statute).

Visitors include:

• Invitees: Persons entering with the express permission of the occupier (e.g., guests invited to a house).
• Licensees: Persons entering with the implied permission of the occupier (e.g., a person walking up a path to knock on the front door, a customer entering a shop).
• Contractual Entrants: Persons entering under a contract (e.g., paying guests at a hotel, ticket holders at an event).
• Legal Right of Entry: Persons entering under a legal power (e.g., police officers with a warrant, meter readers).

It is important to note that a person's status can change. If a visitor exceeds the bounds of their permission (either by going to an area they are not permitted or by undertaking activities outside the scope of their permission), they may become a trespasser, falling outside the scope of the OLA 1957 duty.

The Common Duty of Care (OLA 1957)

Section 2(2) of the OLA 1957 defines the core duty:

Key Term: Common Duty of Care
The duty to 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.

This duty focuses on keeping the visitor reasonably safe, not necessarily making the premises absolutely safe. The standard is that of the 'reasonable occupier'.

Breach of the Common Duty of Care

Determining whether the occupier has breached the common duty of care involves assessing if their conduct fell below the standard of a reasonable occupier in the circumstances. This involves balancing several factors akin to general negligence principles:

• Likelihood and Severity of Harm: How likely was injury, and how serious could it be? Greater risk demands greater precautions.
• Cost and Practicability of Precautions: What could the occupier reasonably have done to prevent the harm, considering the cost and ease of implementation? (Latimer v AEC Ltd [1953] AC 643).
• Obviousness of the Danger: Occupiers may not need to warn against very obvious risks (Staples v West Dorset DC [1995] PIQR P192).
• Type of Visitor: The standard expected can vary depending on the visitor category.

Children (s 2(3)(a))

The Act specifically requires occupiers to be prepared for children to be less careful than adults. This imposes a higher standard where children are expected visitors. Occupiers must guard against 'allurements' that might attract children to danger (Glasgow Corporation v Taylor [1922] 1 AC 44). However, the law also expects parents to exercise reasonable supervision over very young children (Phipps v Rochester Corporation [1955] 1 QB 450).

Skilled Visitors (s 2(3)(b))

Occupiers are entitled to expect that a person exercising their professional skill (e.g., an electrician, a chimney sweep) will appreciate and guard against risks ordinarily incident to that calling (Roles v Nathan [1963] 1 WLR 1117). This does not absolve the occupier of duty regarding risks unrelated to the visitor's skill.

Worked Example 1.1

An experienced electrician is called to fix wiring in an old house. While accessing the attic, they fall through a rotten floorboard concealed by insulation. Is the occupier liable?

Answer: Potentially yes. While the electrician is a skilled visitor expected to handle electrical risks (s 2(3)(b)), the risk here relates to the structural state of the premises (rotten floorboard), not directly to their electrical skill. The common duty of care (s 2(2)) would apply, requiring the occupier to take reasonable steps regarding the safety of the access route, considering if the danger was known or foreseeable.

Warnings (s 2(4)(a))

An occupier can potentially discharge their duty by giving a warning. However, the warning must be sufficient, in all the circumstances, to enable the visitor to be reasonably safe. A simple 'Danger' sign might be insufficient for a hidden or complex hazard. The warning must be clear and specific enough for the particular risk and visitor. An ineffective warning means the duty is likely breached.

Independent Contractors (s 2(4)(b))

If a visitor is injured due to faulty work carried out by an independent contractor, the occupier is not liable if they acted reasonably in:

1. Entrusting the work to the contractor.
2. Taking reasonable steps to satisfy themselves the contractor was competent.
3. Taking reasonable steps to satisfy themselves the work was properly done.

The level of checking required for point 3 depends on the complexity of the work. Technical work may require less checking by the occupier (Haseldine v C Daw & Son Ltd [1941] 2 KB 343), whereas simpler tasks might demand more oversight (Woodward v Mayor of Hastings [1945] KB 174).

Worked Example 1.2

A homeowner hires 'Bob's Budget Builders' (found online, no checks made) to repair a loose balcony railing. Bob does a poor job, and the railing later gives way, injuring a visiting guest. Is the homeowner liable?

Answer: Likely yes. While entrusting repair work might be reasonable, the homeowner failed to take reasonable steps to ensure Bob was competent (no checks made). Furthermore, depending on the visibility of the poor repair, they may have failed to reasonably check the work was properly done. Therefore, the occupier likely remains liable under s 2(4)(b).

Revision Tip

Remember that the common duty of care is about ensuring the visitor's safety for the purpose of their visit. If a visitor uses the premises for an unauthorised purpose, they may lose their status as a visitor and the protection of the OLA 1957.

Key Point Checklist

This article has covered the following key knowledge points:

• Occupiers' liability to lawful visitors is governed by the Occupiers' Liability Act 1957.
• An 'occupier' is defined by the degree of control they exercise over the 'premises'.
• A 'visitor' is someone with express or implied permission, or a legal right, to be on the premises.
• The 'common duty of care' requires the occupier to take reasonable steps to ensure the visitor is reasonably safe for the purpose of their visit.
• The standard of care is objective but adjusted for children (higher standard expected of occupier) and skilled visitors (expected to guard against risks of their calling).
• Warnings must be sufficient to enable the visitor to be reasonably safe.
• Occupiers can avoid liability for dangers created by independent contractors if they acted reasonably in selecting and overseeing them.

Key Terms and Concepts

• Occupier
• Premises
• Visitor
• Common Duty of Care