Occupiers' liability - Identifying the occupier

Learning Outcomes

This article examines how to identify an 'occupier' under the Occupiers’ Liability Acts 1957 and 1984 for SQE1 purposes, including:

• The statutory basis for occupier status and the central importance of the control test over legal ownership, physical presence, or contractual labels.
• How courts determine whether a person has sufficient control over premises, using practical indicators such as access rights, repair obligations, and day‑to‑day management powers.
• The circumstances in which there may be multiple occupiers, and how liability can be shared or allocated according to control of different areas or features.
• The distinction between control of whole premises and control restricted to particular structures, equipment, or hazards, such as staircases, lifts, scaffolding, or playground items.
• Typical occupier relationships in landlord‑tenant, owner‑contractor, and public authority scenarios, and how exam questions signal who is likely to be treated as the occupier.
• Application of leading authorities, especially Wheat v Lacon and Harris v Birkenhead Corporation, to structured SQE1 problem‑question analysis on premises liability.
• The link between identifying the correct occupier and framing duties owed to visitors and non‑visitors under OLA 1957 and OLA 1984 in assessment answers.

SQE1 Syllabus

For SQE1, you are required to understand the fundamental principles of occupiers' liability, including how to identify the party legally responsible for the safety of premises. This involves applying the concept of 'control' as established by statute and case law. Your ability to correctly identify the occupier is essential for determining liability under both the Occupiers’ Liability Act 1957 and 1984 in assessment questions, with a focus on the following syllabus points:

• The definition of an 'occupier' under the Occupiers’ Liability Act 1957, s 1(2).
• The legal test of 'control' over premises versus simple ownership.
• Factors indicating sufficient control to establish occupier status.
• The concept of multiple occupiers sharing control over the same premises.
• Key case law principles establishing who qualifies as an occupier (e.g., Wheat v Lacon).
• How control can apply to a specific part or feature of the premises (e.g., common parts, plant, scaffolding).
• The shared definition of “occupier” under both OLA 1957 and OLA 1984 and the link to duties owed to visitors and non‑visitors.
• The “occupancy duty” focus on dangers due to the state of the premises (as distinct from activity-based negligence).

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. True or False: Only the legal owner of a property can be an 'occupier' under the Occupiers' Liability Acts?

• False. Control, not ownership, determines who is an occupier.

1. Which legal case established that there can be more than one occupier of premises simultaneously?

• Wheat v Lacon.

1. What is the primary legal test used to determine if someone is an 'occupier' for the purposes of occupiers' liability?

• The control test.

Introduction

Establishing liability under the Occupiers’ Liability Act 1957 (OLA 1957) or the Occupiers’ Liability Act 1984 (OLA 1984) begins with identifying the correct defendant. The defendant must be the 'occupier' of the 'premises' where the injury occurred. Unlike in everyday language, legal 'occupation' is not synonymous with ownership or physical presence. Instead, the law focuses on the degree of control a person exercises over the premises. Correctly identifying the occupier is a foundational step in any occupiers' liability claim and is frequently tested in SQE1 assessments.

Both Acts use the same concept of occupier. Under OLA 1957, the duty is owed to visitors and is directed to dangers due to the state of the premises. Under OLA 1984, a limited duty is owed to non‑visitors (including trespassers) where the statutory conditions are met. In both regimes, the first question is: who has sufficient control over the premises (or part of them) to be expected to take reasonable steps to keep entrants reasonably safe (OLA 1957) or avoid injury (OLA 1984)?

Identifying the Occupier: The Control Test

The OLA 1957 provides the definition relevant to both Acts. Section 1(2) states that the duties under the Act are imposed on persons ‘occupying or having control over’ premises. Case law has clarified that the primary factor is the degree of control exercised.

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 a person lawfully coming there.

This definition originates from the leading case of Wheat v E Lacon & Co Ltd [1966] AC 552 (HL). In this case, both the brewery owners and the managers who lived in and ran the pub were found to be occupiers of the staircase where a guest fatally fell. This established that:

• Control is key: occupancy is based on control, not ownership.
• Multiple occupiers: there can be more than one occupier of the same premises where control is shared or divided.

In practice, control may be confined to an area or feature (e.g., a staircase, lift, plant room, or scaffolding). Occupier status can attach to the person with day‑to‑day control, even if another party owns the freehold or leases the site.

Key Term: control test
The factual inquiry into who has practical and legal control over the state of the premises (or a part of them), including the ability and responsibility to prevent or remedy dangers. The person(s) with such control are the occupier(s) for the Acts.

The degree of control required is “sufficient control” to take steps to meet the obligations imposed by the Acts. For visitors (OLA 1957), this means making the premises reasonably safe for permitted purposes. For non‑visitors (OLA 1984), it means taking such care as is reasonable to avoid injury due to dangers from the state of the premises, provided the statutory preconditions are met.

Factors Indicating Control

Determining 'sufficient control' is a question of fact in each case. Courts consider various factors, including:

• Authority to permit/deny entry:
• Can the person decide who enters the premises or a defined area (e.g., common parts, plant rooms)?
• Responsibility for maintenance/repairs:
• Who bears contractual or practical responsibility to maintain or repair defects in the relevant area or feature?
• Management of activities and systems:
• Who supervises day-to-day operations affecting the state of the premises (e.g., cleaning icy steps, servicing lifts)?
• Physical possession and presence:
• Physical occupation can indicate control, but is not essential. In Harris v Birkenhead Corporation [1976] 1 WLR 279 (CA) a local authority was held to be an occupier of a vacant, unfenced house scheduled for demolition despite never having taken physical possession; legal control and responsibility sufficed.
• Contractual allocation of control:
• Lease covenants or service contracts allocating control of common parts, plant, equipment (lifts, escalators), or construction areas. In AMF International Ltd v Magnet Bowling Ltd [1968] it was accepted that both owner and contractors could be occupiers on major projects.
• Power to mitigate or remove danger:
• Who has the keys, signage authority, cordons, and budgetary ability to warn, isolate, or fix hazards?
• Insurance and risk ownership:
• Who carries the risk contractually, insures for premises risks, or is tasked to remediate defects?

These indicators are non-exhaustive and often overlap. Crucially, control can be spatially limited (e.g., only the staircase, only the lift, or only the scaffolding) and temporally limited (control during works or events).

Worked Example 1.1

A local council owns a park containing a playground. The council contracts with 'Playsafe Ltd' to manage and maintain the playground equipment daily. A child is injured due to faulty swing equipment that Playsafe Ltd failed to repair despite noticing the defect. Who is/are the likely occupier(s) of the playground equipment?

Answer:
Both the local council and Playsafe Ltd could potentially be occupiers. The council owns the park and retains ultimate control. Playsafe Ltd exercises day-to-day control over the specific playground equipment, including maintenance, making it likely they also have sufficient control to be an occupier of that equipment.

Worked Example 1.2

A shopping centre landlord owns the mall and common parts, including escalators and lifts. Individual retailers occupy demised units and control their shop interiors. A visitor is injured when an escalator jerks due to poor servicing. Who is the occupier of the escalator?

Answer:
The landlord is an occupier of the escalator as a common part under its control and maintenance regime. A service contractor may also be an occupier if they have practical day-to-day control over servicing and safety of that escalator. The retailers are unlikely to be occupiers of the escalator as they do not control it.

Worked Example 1.3

A local authority serves notices to acquire a derelict house and plans demolition. It does not yet physically enter or secure the site. A child gains access and is injured by a dangerous internal staircase. Who is the occupier?

Answer:
The local authority is likely an occupier. Harris v Birkenhead Corporation confirms physical possession is not essential; legal control and responsibility to secure or warn can suffice. The previous owner may also be an occupier if they retain any control pending transfer.

Worked Example 1.4

A developer appoints a principal contractor to manage a construction site, and a specialist scaffolding subcontractor erects and maintains scaffolding. A passer-by is injured when a loose scaffold board falls from the structure. Who are the occupiers of the scaffolding?

Answer:
The principal contractor will generally be an occupier of the construction site and common works areas. The scaffolding subcontractor is likely an occupier of the scaffolding itself due to day-to-day control over its state. The developer may be an occupier of the wider site but is less likely to be an occupier of the scaffolding if control is delegated.

Multiple and Shared Occupancy

As Wheat v Lacon demonstrates, premises can have multiple occupiers. This commonly arises in the following situations:

• Landlord and tenant:
• A tenant generally controls the leased unit and is an occupier for that area. The landlord may remain the occupier of common parts (stairs, lifts, entrances) and retained structures. Liability tracks control: landlords typically control and insure common parts; tenants control shop floors or demised units.
• Owner and independent contractor:
• An owner may remain an occupier of the site, while contractors can be occupiers of areas or structures they control (e.g., scaffolding, temporary plant, cordoned work zones). In practice, occupier duties can “map” onto contractual responsibilities.
• Major projects and shared sites:
• Both owner and contractors may be occupiers of different areas or features at the same time (AMF International Ltd v Magnet Bowling Ltd). Clear site rules, permits to work, and demarcation plans help evidence control.
• Licensees and event operators:
• A venue owner may be an occupier; an event organiser might also be an occupier of event-specific installations (stages, temporary seating) where it exercises control over set-up and safety.

Control can be partial and dynamic. It can shift during works or events and may be simultaneously held by different parties for different aspects (e.g., owner for structure; contractor for scaffolding; lift engineer for lift safety; facilities manager for signage and cordons).

Occupancy and the “state of premises”

Under both Acts, occupier duties are directed at dangers due to the state of the premises (or things done or omitted on them under OLA 1957). Where harm arises from activities rather than the state of premises, occupiers may still face common law negligence claims, but liability under the Acts focuses on the premises’ condition and features. Identifying the occupier therefore centres on who controls that condition or feature, not who ran the activity.

Public authorities as occupiers

Public authorities can be occupiers. Harris v Birkenhead Corporation shows physical occupation is not required; legal control and responsibility to secure or warn can be enough. Equally, authorities often control highways, parks, schools, and housing common parts. The control analysis is the same: who could practically and legally mitigate the danger by warning, fencing, or repairing?

Factors in Practice: Applying the Control Test

When faced with a problem question:

• Identify the specific hazard and location:
• Is it a staircase, lift, escalator, playground item, icy step, scaffold, balcony edge, or sheer drop?
• Map control to the hazard:
• Who has contractual and day-to-day control of that area or feature (keys, servicing, signage, repairs)?
• Consider shared control:
• Could more than one party be occupier? If so, duties may be concurrent.
• Distinguish demised/retained areas:
• Tenants control demised units; landlords control retained structures/common parts unless the lease says otherwise.
• Look for evidence of practical ability:
• Who could realistically fix, isolate, or warn? Control often lies with those who can and should act.

Exam Warning

Do not assume the owner is always the occupier. Focus on identifying who has sufficient control over the specific part of the premises where the incident occurred. In assessment questions, facts indicating management, maintenance responsibilities, or the power to exclude others are key clues to identifying the occupier(s). Be precise: control of a lift is not the same as control of a shop floor; control of scaffolding is not necessarily control of the whole site.

Revision Tip

Remember the principle from Wheat v Lacon: control is the determinant factor. Ask yourself: "Who had the practical ability to prevent the injury on these premises?" This often points to the party or parties with sufficient control to be deemed occupiers. If more than one party could have intervened (e.g., owner and contractor), there may be multiple occupiers.

Summary

Identifying the occupier is a critical first step in occupiers' liability claims. The key determinant is not ownership but the degree of control exercised over the premises (or a defined part or feature). A party has sufficient control if they can take steps to ensure the safety of those entering the premises or reasonably protect trespassers where the OLA 1984 conditions are met. There can be multiple occupiers of the same premises simultaneously, with duties tracking the area or feature each controls. Landmark authorities, including Wheat v Lacon (multiple occupiers) and Harris v Birkenhead Corporation (control without physical possession), anchor the control test. In practice, contractual arrangements, maintenance responsibilities, and day-to-day management evidence control. Always tie occupier identification to the precise hazard and location involved.

Key Point Checklist

This article has covered the following key knowledge points:

• ‘Occupier’ is defined by control, not ownership (OLA 1957, s 1(2)); the concept applies to both OLA 1957 and OLA 1984.
• The control test asks who has practical and legal control over the relevant premises or feature and could have mitigated the danger (Wheat v Lacon).
• Physical possession is not essential; legal control and responsibility can suffice (Harris v Birkenhead Corporation).
• Control can be partial (specific area or feature) and dynamic, and there may be multiple occupiers concurrently.
• Landlords typically occupy common parts; tenants occupy demised units; contractors may occupy areas/structures they control (e.g., scaffolding, lifts).
• Occupier duties under the Acts focus on dangers due to the state of the premises; activity-related negligence is addressed separately under common law.
• Identifying the occupier requires mapping the hazard to the party with day-to-day control, maintenance obligations, keys/signage authority, and power to repair or warn.

Key Terms and Concepts

• Occupier
• control test