OCCUPIER’S

LIABILITY

ASSOCIATE PROF DR HANIM KAMARUDDIN

2023
 DEFINITION
Occupier’s duty and liability Occupier
Duty owed by occupiers of land or Test of occupational control over
premises towards visitors, whether premises .
invited or uninvited, whose presence
is lawful or unlawful, who suffer A party who exercises an element of
injury during the course of their visit control over premises.
a person who is in control of land or
property must conduct themselves in
a certain manner, in order to avoid
injuring others.
WHEAT V E LACON &
CO LTD [1966] AC 552
The claimant was on holiday, and stayed in a pub with
attached guest rooms. The pub was owned by the defendant
company, which had hired a manager-in-residence to
manage both the guest rooms and the front-of-house. In
order to access his room, the claimant had to climb a steep,
narrow staircase. The handrail stopped two steps short of
the bottom, and there was no bulb in the light fitting,
leaving it dark. The claimant was fatally injured whilst
descending these stairs.
The primary question of law was then who was the proper
party to the suit.
–The court held that both the owners and the manager were occupiers,
applying a test of control. The owners retained both property rights,
and the right to repair the premises as they saw fit, and hence had
sufficient control over the premises to be an occupier. The manager
was too an occupier – he was licensed to deal with the day-to-day
running of the premises, and additionally physically lived on the first
floor of the pub. Whilst both were occupiers, only the manager was
held liable – the lack of lighting was held to be the key breach of duty,
and that was the manager’s purview.
 “wherever a person has a sufficient degree of control over premises
that he ought to realise that any failure on his part to use care may
result in injury to a person coming lawfully there, then he is an
‘occupier’ and […] is under a duty to his ‘visitor’ to use reasonable
care. In order to be an ‘occupier’ it is not necessary for a person to
have entire control over the premises. He need not have exclusive
occupation. […] He may share the control with others. Two or more
may be ‘occupiers’. And […] each is under a duty to use care
towards persons coming lawfully on to the premises, dependent on
his degree of control.”
Lord Denning, at 577.
HARRIS V
BIRKENHEAD
[1976] 1 WLR 279
The defendant council had served a compulsory purchase on
a rented property, and the current tenant moved out. They
gave the owner/landlord 14 days’ notice of their intention to
take possession, but didn’t actually take physical possession
of the property (i.e. send an agent to it) once the 14 days had
passed. The claimant, a four-year-old girl, wandered off from
a nearby playpark with a friend. The house was unsecured
(unknown vandals had broken in), and the claimant entered
the open front door, went upstairs, and was seriously injured
when she fell from a window.

The council was held liable – although they had not physically
occupied the property, they had legal ownership at the point
the accident occurred. This legal control was enough to
establish occupier status.
PREMISES
Land and buildings
Temporary and mobile structures are included under this
definition, such as scaffolding and ladders.
Wheeler v Copas [1981] 3 All ER 405:
The claimant was a builder working on the defendant’s
property when he used a ladder which the defendant
had lent to him. The ladder was too flimsy, and broke,
injuring the claimant. The court noted that the ladder
came under the definition of premises
LAWFUL
VISITORS
Three categories
a. those who have express
permission to visit,
b. those who have implied
permission to visit, and
c. those with a lawful right to visit.
EXPRESS
PERMISSION
Those who are expressly invited onto premises by some
means (so, a written invite or a simple beckoning by the
occupier
Occupiers can limit the extent of an express invite in terms of
place, behaviour or time.
E.g: someone who is invited to a dinner party can attend with
express permission, but they cannot refuse to leave at the end,
smash the host’s windows and then climb up onto the roof.
Someone who deviates from such instructions will be
considered a trespasser
THE CARLGARTH
[1927] P 93
The claimant’s ship filled with water and sank whilst
travelling down the defendant’s channel of water. Whilst the
ship was invited to use the channel, it had navigated in an
irregular manner (causing the sinking.) Thus, because the
ship was acting in a manner other than that which it had
permission to, the occupier of the channel could not be held
liable.
Scrutton LJ at 97: “When you invite a person into your
house to use the staircase, you do not invite him to slide
down the bannisters, you invite him to use the staircase in
the ordinary way in which it is used.”
IMPLIED
PERMISSION
those who lack express permission but whose presence
is assumed to be unobjectionable to the occupier.

E.g: Resident and Postman : Impliedly for a postman

to use the front entrance. Natural limitation which will
apply for many forms of implied permission – so a
postman will likely be considered to have implied
permission to access the front of a property, but this
permission will not extend to the postman going round
the back of the property and playing on the owner’s
swing-set for an hour. Again, a visitor who exceeds the
limitations of implied permission will be considered a
trespasser.
LOWERY V WALKER
[1911] AC 10
A path running across the defendant’s field was used as a
shortcut by several people to get to a nearby railway station.
The defendant knew about this, and objected to it, but had not
taken any steps to stop it from occurring. One day, he put a
wild horse in the field, which attacked and injured the
claimant. The courts held that since the defendant knew about
the trespassers, but did nothing about it, this amounted to
implied permission. The defendant was, thus, held liable.

*Implied permission can come into being if an occupier knows

that their land is being used by trespassers, but does nothing to
prevent their activities
LAWFUL RIGHT
OF ENTRY
those who maintain a right to enter land or property
regardless of the occupier’s wishes

police officers (with a warrant or chasing a fugitive),

firefighters attending a fire, and public utilities employees
attending to read meters etc.

Those who enter property in accordance with a valid

contract are held to be a lawful visitor under the act, and
notably, if the relevant contract provides for a higher
standard of care it will apply.

So if a landowner hires builders, and agrees to being held

strictly liable for any accidents that occur, then that duty of
care will apply
 OCCUPIERS’ DUTY OF
CARE
Duty of care owed by occupiers to categories of visitors – the standard of care
since being an occupier normally gives rise to the foreseeability of damage to
a visitor
the duty is based around preventing injury in visitors, rather than ensuring
that premises are objectively safe.
injury suffered by the visitor usually resulted from some defect in the static
condition of the premises rather than from any activity taking place there.
Thus, whilst a deep pit presents an objective hazard, the occupiers duty is
based on ensuring nobody is injured by it (for example, by putting up warning
signs or fencing it off.)
SPECIAL VISITORS
children and skilled visitors, for whom the applicable duty of care
is higher and lower respectively
children can be expected to be less careful than adults, and, by
implication, that a greater level of care might be required to keep
them from harm.
The common law has sought to strike a balance between the
responsibilities of parents and occupiers to prevent harm from
befalling children.
PHIPPS V ROCHESTER
CORPORATION
[1955] 1 QB 450
A 5-year-old was walking, with his 7-year-old sister, across
some land owned by the defendant, which was under
development. The 5-year-old fell into a trench dug for such
purposes, and was injured.
The court ruled that the occupying council was not liable –
just as an assumption could be made that children would be
less careful, an equal assumption could be made that young
children would not be allowed to wander unsupervised onto
unsafe land. Thus, to avoid shifting parental responsibility
to landowners, the claim was denied.
GLASGOW CORPORATION
V TAYLOR [1922] 1 AC 44
A seven-year-old died after eating poisonous berries which were in a public park.
Whilst the plants were fenced off, there were no notices warning that the berries
were poisonous.
The court held that the defendant council was liable. The plants did not present an
obvious danger, and so the council should have taken sufficient measures to draw
attention to the concealed danger.
It was also noted that an occupier who is aware that something on his land might
act as an allurement to children (for instance, berries that look edible) should take
greater care to prevent that risk from manifesting.
*If land holds either concealed danger, or something which might allure
children to it, then a duty will likely be held to exist
TITCHENER V BRITISH
RAILWAYS BOARD [1983] 1
WLR 1427
the relevant level of care will depend on the nature of the risk and the age and
awareness of the child involved

The claimant, a 15-year-old girl, was walking with her 16-year-old boyfriend.
They took a shortcut across a railway line and were both struck by a train,
severely injuring the claimant and killing her boyfriend. They had accessed the
railway through a gap in the fence, and there was a pathway worn up to the gap,
suggesting that this was a point of repeated trespass. It was established that the
defendant either knew of the gap, or would have known of it upon reasonable
inspection. The defendant denied liability on the basis that it did not owe a duty
of care towards a 15-year-old, who would have been aware of the risks they
were running. This argument was successful – indeed upon cross-examination
the claimant noted her knowledge of the risk and her choice to take the chance.
SKILLED VISITORS
Occupiers can assume that such visitors will have a
greater awareness of risks and the relevant precautions
that they should take
This increased competence will only apply to risks whose
nature matches the skill of the visitor. So an electrician
will be owed a lesser duty of care by an occupier – but
only in relation to risks of electric shock and similar.
General Cleaning Contractors Ltd v Christmas [1953] AC
180
GENERAL CLEANING
CONTRACTORS LTD V CHRISTMAS
[1953] AC 180

The claimant was cleaning windows on the defendant’s

building. He had climbed up onto a wall, and was using an
open sash window for support. The top half of the window
closed on his fingers, he lost his balance and fell, injuring
himself. His action against the occupiers failed – it was
held that as a professional, he should have known how to
mitigate the risk he was running.
 SALMON V SEAFARER RESTAURANTS LTD [1983] 1
WLR 1264

A fireman was injured in an explosion whilst attending a chip shop fire. The
defendant occupier argued that, with regard to a fireman attending a fire, his duty
only existed to protect him against a special or additional risk above those he might
ordinarily encounter as a result of his job. This argument was rejected – whilst the
firefighter’s skills were relevant to determining the applicable duty of care, where it
was foreseeable that he might be injured through the exercise of those skills, the
occupier would remain liable. The claim therefore succeeded.
WARNINGS
the duty of care is based on protecting visitors, rather than
removing hazards altogether. This means that the humble warning
sign forms a key element of fulfilling the duty. However, the
addition of a warning to a hazard will not absolve an occupier of
liability.
a specific hazard will require a specific warning – so if the hazard
is an electric fence, then an appropriate warning would be:
‘Caution: Electric Fence’, rather than just ‘Caution’. Visitors
shouldn’t have to play ‘guess the hazard’ whenever they see a
warning. Hidden dangers will require greater attention to be drawn
to them
 STAPLES V WEST DORSET DISTRICT COUNCIL [1995]
93 LGR 536

The claimant was badly injured when, crouched on a harbour wall to take a photo, he
slipped and fell off of the wall, some 20 feet high. The harbour wall was covered in
algae, and thus very slippery when wet. He brought an action against the defendant
council, arguing that no warning signs were present regarding the danger of slipping.
The claim failed – the dangers of slipping on algae on a harbour wall were obvious,
and the claimant was aware of them. The defendant thus had no duty to warn.
* Staples demonstrates how claimants will be expected to use their own common
sense to self-warn of a hazard.
 INDEPENDENT CONTRACTORS

Situations in which an occupier will be held liable for a harm caused by an independent contractor:

1. where in was unreasonable to entrust the work to an independent contractor in the first place. This is to
prevent an occupier from hiring independent contractors to deal with all aspects of their premises in
order to avoid liability.

2. Secondly, where the occupier failed to take reasonable steps to ensure the independent contractor was
competent – for example, a landlord who hires an independent engineer to do gas safety checks will be
expected to check that he is qualified.

3. Thirdly, where the occupier has failed to take reasonable steps to check the work of an independent
contractor.

IF A SCHOOL HIRES AN
INDEPENDENT CONTRACTOR TO
CLEAR ICE OFF OF STEPS, THEY
WILL BE EXPECTED TO CHECK
THAT IT HAS BEEN DONE ( SEE
WOODWARD V MAYOR OF
HASTINGS [1945] KB 174)
INDEPENDEN
T
CONTRACTOR
S
AN OCCUPIER WILL NOT BE
EXPECTED TO CHECK OVERLY
TECHNICAL WORK, AS LONG AS
THEY HAVE TAKEN THE
PROACTIVE MEASURE OF
ENSURING THEIR CONTRACTOR
IS REPUTABLE (SEE HASELDINE V
DAW & SON LTD [1941] 2 KB 343)
 TRESPASSERS
Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358 :
“someone 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.”
Young v Kent County Council [2005] EWHC 1342:
The claimant, a 12-year-old boy, climbed up onto the roof of a school (via a
ventilation flu) to fetch a ball. He then fell through a skylight and was
injured. The defendant occupier was aware that the skylight was brittle, and
that it represented a hazard. They were also aware that the roof was used as a
meeting place by children – the fact that the roof could be accessed via the
ventilation flu by children was even noted in a HSE report. Finally, the brittle
skylight was a hazard which could have easily been protected against. The
claim therefore succeeded, albeit with the claimant’s damages reduced by
50% on the basis of contributory negligence.
EXTRA REFERENCES

Keown v Coventry Healthcare NHS Trust [2006] 1 WLR 953

Thomlinson v Congleton Borough Council [2004] 1 AC 46
DEFENCES

• Volenti non fit injuria

• Contributory negligence

• Exclusion of occupier’s liability – Ashdown v

Williams and Sons (1957)