Occupier’s Liability – Who Do You Owe a Duty of Care To?

The Occupier’s Liability Act 1957 (“1957 Act”)

The 1957 Act was enacted to regulate the duty of care which an occupier of premises owes to its visitors. The occupier owes the same duty of care to all its visitors, except in so far as the duty may be extended, restricted, modified or excluded in some circumstances.

The duty of care owed by the occupier is to “take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there” (s.2(2)).

An ‘occupier’ is not defined in the 1957 Act, but it is widely accepted that an occupier is someone who exercises an element of control over the premises and does not necessarily have to ‘occupy’ the premises.

It is important to note that ‘the premises’ is not limited to buildings and land, but also includes vessels, vehicles, aircraft and temporary/mobile structures such as scaffolding and ladders.

A ‘visitor’ may be an individual who has express permission, implied permission or a lawful right of entry.

The 1957 Act expressly states that an occupier must be prepared for children to be less careful than adults, and, by implication, that a greater level of care might be required to keep them from harm.

At the other end of the scale is ‘skilled visitors’, the 1957 Act assumes that such visitors will have a greater awareness of the risks/dangers and the measures needed to take to guard them from such risks/dangers. The knowledge of the skilled visitor will only apply to their particular expertise and may not remove all liability from the occupier, the occupier will still need to act reasonably.

The occupier may discharge their duty of care in certain circumstances. In determining whether the duty has been discharged regard has to be had to all of the circumstances. For example, a sign warning the visitor of the danger may be enough to discharge the duty if the sign enables the visitor to be reasonably safe.

Possible defences available to an occupier include the following:

  • Consent of the visitor. Where a visitor willing accepts the risk, the occupier may not be liable for the damage incurred.
  • The occupier may raise contributory negligence to reduce their liability if the visitor has failed to take reasonable care.
  • The occupier may reduce their liability by agreement.

The Occupier’s Liability Act 1984 (“1984 Act”)

The 1984 Act was enacted to regulate the duty of care which an occupier of premises owes to unlawful visitors. This includes trespassers and those who have exceeded their permission as a lawful visitor.

A ‘trespasser’ is “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”, Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929].

Three criteria must be met before an occupier of premises owes a duty to another (not being his visitor). The occupier owes a duty if:

  • he is aware of the danger or has reasonable grounds to believe that it exists;
  • he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned, or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and
  • the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.

Other Considerations

It is important when considering whether an occupier owes a duty of care to an individual on their premises to contemplate whether a claim under legislation beyond the 1957 Act and 1984 Act is applicable.

For example, where an injury has been caused by an animal on the occupier’s premises then the Animals Act 1971 will be applicable as the keeper of an animal owes a duty of care to prevent the animal from causing harm to others.

Where the injury/damage is caused by an animal belonging to a dangerous species, the keeper of the animal will be strictly liable for the injury/damage, unless an exception is applicable.

Where injury/damage is caused by an animal not belonging to a dangerous species, the keeper of the animal will be liable for the injury/damage if:

  • the damage is of a kind which the animal, unless restrained, was likely to cause – or if caused by the animal, was likely to be severe; and
  • such likelihood is due to the characteristics of the animal which are not normally found in animals of the same species, or are not normally so found except at particular times or in particular circumstances; and
  • those characteristics were known to that keeper.

However, a person will not be liable for any damage caused by an animal kept on any premises or structure to a person trespassing there, if it is proved either:

  • that the animal was not kept there for the protection of persons or property; or
  • if the animal was kept there for the protection of persons or property, that keeping it there for that purpose was not unreasonable.

So, as one can see, it is important for one to understand the different elements of liability owed by an occupier when drafting or advising on a claim in order to accurately reflect the circumstances of the breach of duty, as you may be able to claim under the 1957 Act then in the alternative under the 1984 Act.

Members of Becket Chambers can provide advice and representation on a variety of disputes concerning an occupier’s liability. Please contact the clerks on 01227 786331 or clerks@becket-chambers.co.uk to discuss your situation and requirements.