LAW OF TORT II – LPP 302

Topic: OCCUPIER’S LIABILITY

Occupier’s Liability
• The law of occupier’s liability is the duty of care by an occupier of
premises or land towards visitors on those premises whether the visitor is
invited or not and who suffers an injury during the course of their visit

• It is that aspect of the law which sets the safety standards for households,
companies, tenants and anyone else who is in control of land or building so
as to ensure that those premises are safe for anyone who enters onto the
premises
Contd.
Examples of occupier includes an owner or landlord; tenants, an independent
contractor, etc
A plaintiff may therefore claim under occupier’s liability or under the law of
negligence
 Contd.
• A feature of common law is the protection it gives to private property. It
abhors trespass and it has been said to permit the greatest latitude in
protection of a dwelling
• The law imposes responsibility on the land owner or occupier to ensure that
it is safe, at least for those he permits to enter the land
• The rule of permitting persons to enter the land is based on the duty of
common humanity even to persons he did not permit to enter
• British Railway Board v. Herrington
 Contd.
• This is a field of tort law codified in statute which is that duty of care owed
by those who occupy real property through ownership or lease, to people
who visit or trespass.
• It is that liability that may arise from accidents caused by defective or
dangerous condition on the premises.
Contd.
• The purpose of the tort is to make an occupier liable for any injury
suffered on his premises or property such as negligence or the state of
the property such as business, residential buildings; fixed structures
such as electricity poles, etc; and movable structures such as vessels,
vehicles or aircrafts.
Occupier’s liability under common law
• Occupier’s liability evolved from common law
• At common law, the liability of an occupier to a person coming onto
his premises depends on the category of entrant the person would fall
into
• The persons entering a property are classified into the following:
• Invitees, Licensees and trespassers
• An invitee is a person who is on a property by the express or implied
invitation of the occupier
• A licensee at common law is a person who has express or implied
permission of an occupier to be on a premises for a purpose in which
the occupier has no interest
 Contd.

• The occupier has the duty of care to warn the person entering upon land to
be aware of certain dangers
• A trespasser is a person who enters or interferes with the landed property of
another person without legal justification.
• As a general rule, a trespasser takes the land as he finds it but an occupier
owes the duty of common humanity to a trespasser to take such steps as
humanity and common sense would dictate, to warn, reduce or avert any
danger to an innocent trespasser
 Contd.
• In Addie & Sons v. Dumbreck, a trespasser was defined as a person who goes on
the land without invitation of any sort and whose presence is either unknown to
the proprietor or, if known, is practically objected to
• That is, even though a trespasser enters a property at his own risk, the occupier
has a duty not to inflict damage intentionally or recklessly on a trespasser that is
on the premises of the occupier.
• The occupier might take steps though to ensure that his land is secure, by
fencing it, or erecting a gate, etc. but still, an occupier owes a duty of common
humanity to trespassers
Common law duty
• Under the classification of persons who enter into premises, the occupier owes a
duty to each one of them
• In the first group, the occupier owes the duty to ensure that the premises are safe
as reasonable care and skill could make them
• In the group of invitees, the duty consisted of preventing damage to the invitee
from unusual danger where the occupier knew about the danger or ought
reasonably to have known about it
• At common law, with respect to the licensee, the occupier owed a duty of care
with respect to dangers which the occupier knew about
• The duty which an occupier owes to the licensee is based, firstly, on the
conditions of the land; and secondly, with respect to activities carried on thereon
Contd.

• In relation to activities carried on, the position was that the occupier owed a duty
to take reasonable care for the protection of the licensee
• In respect of dangerous condition of the land, the occupier is required to warn
the licensee of dangers which he knows about
• Where however, the licensee knows of the danger too, the occupier at this stage,
does not owe the licensee any duty
• Where the licensee is under a disability which prevents him from seeing even the
obvious, then the occupier must warn him of this also
Contd.
• An important aspect therefore, of the duty owed to a licensee can be by
applying the test of the reasonable man and the question will be whether a
reasonable man in the position of the occupier will feel bound to warn the
licensee of the danger

• In the case of a trespasser, the occupier at common law, owed him no duty
at all except not to cause him harm in any way
• Even though the trespasser entered the premises at his own peril, the
occupier could not set a trap for him or lay an ambush for the trespasser
Laws governing Occupier’s Liability
• The first occupier’s liability statute was enacted in England in 1957
• The laws governing occupier’s liability are common law and statutes
• In Lagos State, occupier’s liability is regulated by the provisions of the
Law Reform (Torts) Law which is modelled on the English Occupier’s
Liability Act of 1957.
• In states that do not have any Law Reform (Torts) Law, occupier’s liability
is governed by the common law rules in force in England to date,
including its reformation in BRB v. Herrington, with the exception of
English Statutory enactments.
Contd.
• With the enactment of the English Occupier’s Act of 1957 and the Law
Reform(Torts), Lagos State, the two categories of persons who enter land are
visitors and trespassers
• Visitors: the Law Reform (Torts) Law abolished licencees as persons who can
enter premises and merged it with visitors, and has established ‘visitor’ as
persons who are permitted to enter land
• An occupier owes a common duty of care to visitors in respect of injury as a
result of the state of the premises or to things done or omitted to be done on a
premise. Section 7(1), Law Reform (Torts) Law 2003
• A visitor has been defined under the statute as a person who is lawfully on a
premise either by invitation or by implied permission
 Contd.

• Examples of visitors include invitees, licencees, public officers on a

premise in the course of duty, etc.
• A person who enters a property at the invitation or express permission of
an occupier is a visitor
• On the other hand, a person who enters a property with implied
permission is also deemed to be a visitor on such property.
• An important factor to note is that it is not easy to determine whether a
person or plaintiff had implied permission to enter the premises in
question but it is a question of fact that must be determined in each case
based on the surrounding circumstances
Contd.
• In determining the question of fact, the following are taken into
consideration:
• The burden of proving that there was implied permission to enter a
property is on the person or plaintiff who is claiming the right or suing,
and,
• The plaintiff has to prove that the implied permission can be inferred from
the occupier’s conduct. That is, the occupier’s conduct must support the
entry and not show that he objected to the entry.
• Section 8(1), Law Reform, Lagos State, provides that an occupier owes a
duty of care to all visitors to his premises
 Contd.
• Under section 8(2), the common duty of care is a duty to take such care, as
in all circumstances to see that the visitor is reasonably safe, in using the
premises for the purpose for which he is invited, or permitted by the
occupier to be there

• The common duty of care is to ensure that a visitor is safe. Dangerous

parts of the premises may be fenced or otherwise made out of bounds to
visitors
• While the visitor is going about the purpose for which he was permitted to
be on the premise, the common duty of care is owed by the occupier
 Contd.
• Where however, a visitor deviates from the purpose for which he is
permitted to be on the premises, no duty of care is owed to him and he
becomes a trespasser
• It is expected of the occupier under law that the premises should be in a safe
state of repairs that is reasonable and will not inflict injuries on visitors
• The statute also recognises two types of visitors which are children visitors;
and a visitor entering premises in the exercise of his calling or profession
• In relation to children, courts were formerly of the view that parents were
entirely responsible for the safety of very young children but this opinion
has changed
 Contd.
• Courts nowadays are of the opinion that where there is a child trespasser, a
negligent occupier will be held liable but as a general rule, parents have a duty
to ensure the safety of their children

• The allurement principle: it is expected that children are often attracted with
dangerous equipment, items or object. Where a child is injured in such
circumstances, the occupier may be liable for failure to take reasonable
measures to prevent children playing with such attractive but dangerous object.
• The 1957 Act expressly states that an occupier must be prepared for children to
be less careful than adults, and that a greater level of care might be required to
keep them from harm
• Glassgow Corporation v. Taylor
 Contd.
• An occupier is entitled to assume that a skilled worker, or professional person
doing a job on the premises would ordinarily exercise sufficient care for his own
safety, when carrying out his work and will guard against any danger that is
ordinarily associated with his work or activity. Roles v. Nathan
 Contd.
• Trespassers: this is the only category of entrant of a premise that was
not covered under the English Occupier’s Liability Act 1957 and the
Law Reform (Torts) Law of Lagos State
• The common law rules state that a trespasser entered the property of
another person at his own risk until the case of BRB v. Herrington was
decided.
• The Occupier’s Liability Act of 1984 abolished the harsh rules of
common law and preserved the common duty of care owed to visitors
under the 1957 Act by codifying the duty of common humanity as the
duty owed by an occupier to a trespasser
 Contd.
• In Lagos State and the remaining part of Nigeria, an occupier’s liability
towards trespassers is still governed by the common law
• The case of BRB v. Herrington established the duty of common humanity as
the new duty of care owed by an occupier to a trespasser
 Determining duty of care
• The duty of care may be discharged by the occupier in the following
ways:
• 1. by taking the visitor around the premises so as to avoid traps,
dangerous obstacles and parts
• 2. by placing adequate notice or warning of particular dangers to enable
the visitor to be reasonably safe
• A warning notice may however not be sufficient especially in the case
of children who have not learnt how to read, or illiterate persons who
do not understand English, or even blind persons who are not able to
see the notice
 Contd.
• Where there is danger and it is obvious to the public, a warning notice is still
important because of the additional protection it affords
• An occupier will be liable for failure to give a warning notice
• As a general rule, an occupier owes a common duty of care to a visitor especially
where the premises is being used for the purposes for which he was invited or
was permitted to be on a property
• Where a visitor is injured while using the premises in an unauthorized manner, or
for a purpose not permitted, then, an occupier will not be liable
• Lewis v. Ronald
 Trespassers under common law
• The general rule of common law was that an occupier owed no active duty to a
trespasser.
• A trespasser under common law entered the property of another person at his
own risk but this rule was felt to be harsh on trespassers including children
trespassers especially those who suffered serious injuries or death
• The common law rule was abolished in the case of British Railway Board v.
Herrington where the House of Lords established the duty of common
humanity as that duty of care owed by the occupier to a trespasser
Remedies and Defences under Occupier’s Liability
• When an injured person sues an occupier for negligence or activities carried
thereon, the plaintiff’s remedy is an award of the damages for the injury
suffered

• Defences: the defendant may state that he gave adequate warning of Danger to
the entrant
• Roles v. Nathan
• Consent
• Act of independent contractor
• Act of God, etc.