Negligence: occupiers' liability

The occupier of land or premises may be liable for injuries suffered on his premises, due to the state of that premises. You’ve seen in this chapter that although the law of tort is mainly based on case law developed by judges through the common law, the liability of occupiers for the safety of persons injured on their premises is governed by two statutes. The Occupiers’ Liability Act 1957 concerned liability to lawful visitors. Subsequently, the Occupiers’ Liability Act 1984 was enacted to govern the duty of an occupier to persons other than visitors (trespassers). To succeed in this area of the law of negligence, you must have a good working knowledge of both of these statutes. It is important to note that the standard of care imposed by the statutes upon the occupier is very similar to the ‘neighbour principle’ in Donoghue v Stevenson: basically that of reasonableness.

The occupiers’ liability statutes are built upon concepts developed in the previous common law. For instance, the key question of who is the occupier of a premises (that is: the defendant) is determined by the criterion of ‘control’, which derives from the common law; see Wheat v Lacon. Early cases use the terms; ‘invitee’ and ‘licensee’ but today they have been replaced by ‘lawful visitor’, to whom the ‘common duty of care’ is owed under the 1957 Act. You have studied the particular aspects of the 1957 Act pertaining to children, skilled visitors, warnings and independent contractors. It is important to be clear as to what constitutes a warning, rather than an attempt to limit or exclude liability. Exclusions of liability are regulated by the Unfair Contract Terms Act 1977 and the Consumer Rights Act 2015.

Liability under the 1957 Act covers both physical injury and property damage, however the 1984 Act does not cover property damage. There is a two-stage process for determining liability under the 1984 Act. First s1(3)(a-c) must be applied to determine if a duty of care exists. If so, then, secondly, the standard of care under s1(4) will then be considered.

It is important to remember that now that duties of care can be owed to trespassers under the 1984 Act, it is not necessary to use the concept of allurement, for instance, in the case of children. Contributory negligence and volenti may apply.

Remember that occupiers’ liability is one of the areas in which the Compensation Act 2006 s1 has had some influence, that is: the courts’ awareness that imposing liability might have unwanted knock-on effects, as in Tomlinson v Congleton BC. The duties under the 1957 and 1984 Occupiers Liability Acts are occupancy, not activity, duties, but of course common law negligence may still apply even when the statutes do not.