Occupiers' liability

Word document explaining the liability of the occupier in tort law.

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An occupier is not defined in either Act but the case of WHEAT v E LACON & CO suggests it is
somebody with control and HARRIS v BIRKENHEAD CORPORATION decided D does not need physical
possession and the key test is control.
A visitor under S1(2) is all invitees and licensees for example friends and customers. S5(1) is those
with a contractual agreement for example a window cleaner. S2(b) is those with legal rights for
example a policeman. With implied permission they will be a visitor until the reasonable packing up
time has expired (ROBSON v HALLETT). Using a right of way does not make you a visitor (MCGEOWN
v N IRELAND HOUSING EXEC). You can be on premises as a lawful visitor but if you exceed the terms
of the license you can then become a trespasser (TOMLINSON v CONGLETON BC). If the need of a
rescue is foreseeable then the occupier will owe a duty to the rescuer (BAKER v HOPKINS).
According to S1(3) premises is any fixed or moveable structure including vessel vehicle and aircraft.
Under S2(1) the duty an occupier owes to lawful visitors is the "common duty of care" from
DONOGHUE. S2(2) says the standard of duty is the visitor must be reasonable safe for the purposes
of their visit. In MURPHY v BRADFORD METROPOLITAN COUNCIL the D was liable as they should have
done more to defend against such an obvious risk of slipping on ice and in CUNNINGHAM v READING
FC the visitor needs to be safe, some areas may be dangerous as long as the visitor is made safe by
warning them.
S2 (3) (a) says that the occupier must prepare for children to be less careful than adults. If an
allurement (for example berries) is foreseeable then D can be liable (GLASGOW CORPORATION v
TAYLOR) but LIDDLE v YORKSHIRE CC the d was not liable as the child had been warned several times
and so became a trespasser. The case of PHIPPS v ROCHESTER CORPORATION also held the D not
liable as the child should have been the parents' responsibility so although there is no fixed age an
occupier can assume that very young children should be supervised. In JOLLEY v SUTTON the boat was
an allurement and repairing it was a foreseeable response and so this illustrates the courts are more
open to what harm is foreseeable for children.
S2 (3) (b) says that the occupier can give less protection to common callers. This is shown in ROLES v
NATHAN where the chimney sweepers could not recover as they were exercising their profession
and although the C in OGWO v TAYLOR was doing his job the risk was not one he could guard against.
S2 (4) (a) says that if the visitor is warned of a danger by the occupier it can enable the visitor to be
reasonably safe. This is shown by ROLES v NATHAN as the warning discharged the duty. The case of
STAPLES v WEST DOREST DC held that there is no duty to warn of risks that are obvious to a
reasonable man.
S2 (4) (b) says that is the visitor is damaged by faulty construction, maintenance or repair of an
independent contractor then the occupier will not be liable if they have acted reasonably in trusting
the work to them, taken steps to satisfy themselves that they are competent and that the work is
properly done. In BOTTOMLEY v TODMORDEN CRICKET CLUB the D1 was liable for not taking care to
select competent contractors D2. In HASELDINE v DAW the occupier was not liable as it could only
have been the fault of the mechanic working on the lift. In AMF INTERNATIONAL v MAGNET BOWLING

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Although it is not stated expressly it is clearly implied that in certain circumstances the occupier can
exclude their liability.
Under S2 (5) the defence of volenti can be applied as there will be no liability to a visitor if they
accept the risk with full knowledge and free will.…read more

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Differences between the two acts. 57 is for visitors and 84 for non-visitors. 57 the duty is the
common duty and 84 is narrower duty of humanity. 57 the standard is to make the visitor reasonably
safe and 84 is a lower standard. 57 allows property damage to be recovered and 84 does not. 57
allows liability to be removed because of an independent contractor and 84 does not allow this.…read more


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