10.1 Occupiers' Liability
Key Takeaways
- The Occupiers' Liability Act 1957 s.2(2) imposes a common duty of care: reasonable care that a visitor is reasonably safe for the purpose of the permission.
- The Occupiers' Liability Act 1984 s.1(3) duty to non-visitors arises only if the occupier knows of the danger and of the person's proximity, and some protection is reasonably expected.
- The 1984 Act s.1(8) covers death and personal injury only; it creates no duty for loss of or damage to a non-visitor's property.
- UCTA 1977 s.2(1) and CRA 2015 s.65 stop a business occupier or trader excluding liability for death or personal injury caused by negligence, including Occupiers' Liability Act duties.
- Wheat v E Lacon & Co Ltd [1966] AC 552 treats as occupier anyone with a sufficient degree of control; more than one occupier can owe the duty at the same time.
Quick Answer: A person with sufficient control of premises owes visitors the Occupiers' Liability Act 1957 common duty of care, and may owe non-visitors a narrower Occupiers' Liability Act 1984 duty for personal injury only if the s.1(3) knowledge and protection conditions are satisfied.
This independent OpenExamPrep chapter is written for SQE1 Functioning Legal Knowledge (FLK1) tort. OpenExamPrep is not the Solicitors Regulation Authority and does not claim official approval, review, or exact equivalence with SRA sample questions. Use it with the current FLK1 Assessment Specification and the statutes themselves.
Why occupiers' liability is tested separately from ordinary negligence
A claimant who slips on a staircase, dives into a closed lake, or is hurt by a contractor's unfinished demolition is often on someone else's premises. Ordinary Donoghue neighbour principles still matter for activities, but the state of the premises is channelled through two statutes: the Occupiers' Liability Act 1957 (visitors) and the Occupiers' Liability Act 1984 (non-visitors, including trespassers). SQE1 items usually turn on three questions: who is the occupier, what is the claimant's status, and has the occupier discharged or excluded the duty?
Do not treat the Acts as a complete code for every accident on land. Activity-based harm (a shotgun fired through a door, a negligent driving manoeuvre in a car park) is often ordinary negligence. Highway users are not converted into visitors of adjoining occupiers; the 1984 Act s.1(7) preserves that boundary. Landlord repairing duties under the Defective Premises Act 1972 s.4 are a different cause of action. The exam wants you to pick the right gateway, then apply the statutory tests rather than a vague "was it fair?" standard.
Occupier, premises, and control
Occupier is not defined as "owner". Wheat v E Lacon & Co Ltd [1966] AC 552 holds that an occupier is a person with a sufficient degree of control over the premises that they ought to realise that carelessness may injure people coming there. A brewery landlord and a resident manager can both be occupiers of the same stairs. A main contractor on a building site, a local authority running a park, and a tenant with exclusive possession are typical occupiers. Control can be shared; liability is then several, each for their own failure.
Premises under the 1957 Act s.1(3)(a) include any fixed or movable structure, and any vessel, vehicle, or aircraft. A claimant injured in a lift, on a ship gangway, or in a temporary grandstand is still in occupiers' territory if the complaint is the condition of that structure.
Visitors under the 1957 Act
A visitor is a person on the premises with express or implied permission, or a person entering in the exercise of a right conferred by law (1957 Act s.1(2) and s.2(6)): police with a warrant, firefighters, meter readers with a statutory right. Invitation can be implied from a shop's open door, a path that the occupier has never blocked, or a practice of allowing short-cuts. Permission is limited by its terms. The Calgarth [1927] P 93 is still the teaching example: inviting someone to use the staircase is not an invitation to slide down the banisters. Exceed the permission and the person may become a non-visitor for that activity, switching the analysis to the 1984 Act.
The common duty of care (s.2(2)) is to take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which they are invited or permitted to be there. It is not a duty to make the premises reasonably safe in the abstract, and it is not a guarantee against all injury. Obvious natural features, properly maintained stairs, and ordinary recreational risks may involve no breach (Tomlinson v Congleton Borough Council [2003] UKHL 47, decided under the 1984 Act but used across both statutes for obvious-risk reasoning; Staples v West Dorset District Council (1995) 93 LGR 536, algae on a harbour wall).
Children and skilled visitors
Section 2(3)(a) requires the occupier to be prepared for children to be less careful than adults. Allurements (attractive dangers) still matter: Glasgow Corporation v Taylor [1922] 1 AC 44 (poisonous berries in a park). The occupier may also be entitled to expect that very young children will be accompanied: Phipps v Rochester Corporation [1955] 1 QB 450. SQE1 facts often pair an allurement with an absent parent; work through both statutory points rather than stopping at "it was a child".
Section 2(3)(b) allows the occupier to expect that a person who enters in the exercise of their calling will appreciate and guard against special risks ordinarily incident to that calling, so far as the occupier leaves them free to do so. Roles v Nathan [1963] 1 WLR 1117 (chimney sweeps warned about fumes) is the usual illustration. The provision does not wipe out the duty for hidden dangers outside the calling, or for a system of work the occupier controls.
Warnings and independent contractors
A warning discharges the duty only if in all the circumstances it was enough to enable the visitor to be reasonably safe (s.2(4)(a)). A faded sign, a notice the visitor cannot read, or a warning that does not tell the visitor how to avoid the danger will fail. For a skilled visitor, a specific oral warning of the very risk may suffice; for a child, fencing or supervision is more realistic than print.
Where damage is caused by the faulty work of an independent contractor, s.2(4)(b) protects the occupier if three conditions are met: it was reasonable to entrust the work to a contractor; the occupier took reasonable steps to satisfy themselves that the contractor was competent; and the occupier took reasonable steps to satisfy themselves that the work was properly done. Technical work (lift maintenance: Haseldine v Daw & Son Ltd [1941] 2 KB 343) is more readily entrusted than everyday cleaning (Woodward v Mayor of Hastings [1945] KB 174). Ferguson v Welsh [1987] 3 All ER 777 shows the trap where the occupier knows, or ought to know, that a demolition system is unsafe: the statutory defence then collapses.
Non-visitors and the 1984 Act
The 1984 Act replaced the old common-law "duty of common humanity" from British Railways Board v Herrington [1972] AC 877. A duty is owed to a person who is not a visitor in respect of injury caused by a danger due to the state of the premises or to things done or omitted on them (s.1(1)). The duty arises only if all three s.1(3) conditions are present:
- the occupier is aware of the danger or has reasonable grounds to believe it exists;
- the occupier knows or has reasonable grounds to believe that the other is in the vicinity of the danger, or may come into the vicinity; and
- the risk is one against which, in all the circumstances, the occupier may reasonably be expected to offer some protection.
If any limb fails, there is no 1984 duty at all. Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231 (midnight New Year dive from a slipway in winter) is a knowledge-of-proximity failure. Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39 (child climbing the underside of a fire escape) treats the risk as the claimant's dangerous activity rather than a danger in the state of the premises. Young v Kent County Council [2005] EWHC 1342 (skylight that a child might climb to) shows when some protection is reasonably expected.
When the duty exists, s.1(4) requires such care as is reasonable in all the circumstances to see that the person does not suffer injury on the premises by reason of that danger. Section 1(5) allows discharge by reasonable warning or discouragement. Section 1(6) excludes risks the person willingly accepts. Section 1(8) is the property line: no 1984 duty for loss of or damage to property. A trespasser's damaged bicycle is not a 1984 claim; a broken leg may be.
Access land under the Countryside and Rights of Way Act 2000 is a statutory non-visitor regime: people exercising the right to roam are not visitors, and the 1984 duty is cut back for natural landscape features except where the occupier has done something intending to create a risk. Do not promote ramblers to 1957 visitors without a separate permission.
Defences, exclusion, and a comparison table
Volenti non fit injuria is built into both statutes (1957 s.2(5); 1984 s.1(6)). The claimant must have accepted the particular risk with full knowledge; merely seeing a "danger" sign is not automatic consent (White v Blackmore [1972] 2 QB 651 is often contrasted with later control of notices). Contributory negligence under the Law Reform (Contributory Negligence) Act 1945 reduces damages; it does not destroy the duty. Ex turpi causa rarely wipes out an occupier's duty to a burglar for a concealed premises danger, but it can affect activity claims involving the occupier's own violence.
The occupier may extend, restrict, modify, or exclude the 1957 duty "by agreement or otherwise" (s.2(1)), including notices. That freedom is heavily limited for business liability. The Unfair Contract Terms Act 1977 s.1(1)(c) treats occupiers' liability as negligence. UCTA s.2(1) makes void any exclusion of liability for death or personal injury resulting from negligence. UCTA s.2(2) allows exclusion for other loss only if reasonable. For trader–consumer relationships, the Consumer Rights Act 2015 s.65 likewise blocks exclusion of death or personal injury caused by negligence, and s.62 polices fairness of other terms. A private householder not acting in the course of a business has more room to exclude, but the notice must still be brought home and volenti must actually be made out.
| Issue | Occupiers' Liability Act 1957 | Occupiers' Liability Act 1984 |
|---|---|---|
| Who is protected | Visitors (permission or legal right) | Non-visitors (trespassers and those outside permission) |
| When the duty arises | On lawful entry for the permitted purpose | Only if all three s.1(3) conditions are met |
| Content of the duty | Common duty: reasonably safe for that purpose (s.2(2)) | Reasonable care against that danger causing injury (s.1(4)) |
| Property damage | Can be within the common duty | No duty (s.1(8)) |
| Children / skilled persons | Express s.2(3) rules | Circumstances under s.1(3)(c) and s.1(4), no s.2(3) clone |
| Warning | Must enable the visitor to be reasonably safe (s.2(4)(a)) | Warning or discouragement may discharge (s.1(5)) |
| Independent contractors | Statutory defence in s.2(4)(b) | Ordinary reasonableness; no s.2(4)(b) analogue |
Worked FLK1 pattern and exam traps
A local authority owns a flooded quarry used as an unofficial swimming place. Notices say "Danger: deep water. No swimming." Adults ignore the notices in July. A 10-year-old climbs a broken fence at dusk and dives, striking a submerged trolley. Ask, in order: occupier (the authority, control of the land); status (no permission to swim — 1984 Act); s.1(3) (known drowning and diving risk; children known to come; is some protection reasonably expected — fencing in good repair may be); obvious-risk Tomlinson reasoning if the only danger is the water itself rather than a hidden trolley; property claims for ruined trainers fail under s.1(8). If the child had been a paying visitor at a lido, switch to the 1957 Act and s.2(3)(a).
Traps: calling every injured person a visitor; applying s.2(3)(b) to a window cleaner who was not free to guard against a hidden structural collapse; treating a warning as automatic discharge; using the 1984 Act for a stolen coat; forgetting UCTA/CRA when a leisure business points to a ticket disclaimer for a broken neck; confusing Defective Premises Act repairing duties with occupiers' control.
A brewery owns a public house. Resident managers live in the upstairs flat and are allowed to have private guests. A guest of the managers falls on an unlit staircase over which both the brewery (as lessor with residual control) and the managers (as residents) exercise control. For Occupiers' Liability Act 1957 purposes, who is capable of being an occupier?
A trespasser climbs a locked warehouse at night, falls through a rotten skylight, breaks an ankle, and smashes a camera. The occupier knew teenagers used the roof and that the skylight was fragile. Assuming a 1984 Act duty is otherwise made out, which loss can that duty support?
A hospital engages a specialist lift firm to overhaul a passenger lift. The firm is a well-known competent contractor. The hospital checks insurance and accreditation, then reasonably inspects the completed work at a lay level. A visitor is later injured because of a hidden hydraulic fault that only a lift engineer would have spotted. Which statement best captures the 1957 Act independent-contractor rule?
A city farm charges families to enter. Bright red berries that a reasonable occupier would know are poisonous hang at toddler height beside the picnic lawn, with no barrier. A three-year-old eats berries and is ill. The parent had stepped aside to take a phone call. Which legal analysis is most accurate under the 1957 Act?