University of Guyana

Turkeyn Campus
OCCUPIERS’
Faculty of Social Sciences
Department of Law
LIABILITY
Ms. Diane Woolford
April, 2024 LAW OF TORT
LECTURE
 INTRODUCTION

 Occupiers' liability generally refers to the duty of care owed by those who occupy or own
property to people who visit or trespass on said property. Liability may arise from accidents
caused by the defective or dangerous condition of the premises. The occupier of the premises is
under a general duty is to ensure that people who visit and use their premises are reasonably
safe from harm: Tomlinson v Congleton Borough Council 2003. It is a question of fact in
each case as to whether the occupier has taken reasonable safety precautions.

 At common law, the duties of an occupier were cast in a descending scale to different kinds of
persons, and this will be discussed. Finally, it is to be observed that Occupiers Liability is
related to nuisance, the rule in Rylands v Fletcher, breach of statutory duty and basic
negligence.
 KEY
CONCEPTS
 THE OCCUPIER
• The occupier may be defined as a person having possession or control of the premises: : Wheat v E. Lacon & Co
Ltd [1966] AC 552 (HL) The foundation of occupiers’ liability is occupational control associated with and
arising from presence in and use of or activity in the premises. This includes physical control of premises and
legal control of premises : Harris v Birkenhead Corporation [1976] 1 WLR 279 (CA).

• The person occupying or in control of the premises, not necessarily the owner, with the underlying premise being
that the person liable should be the person most likely to have been able to prevent the harm. E.g. landlord,
tenant, managing agent, principal contractor.

• The occupier of the land or structure is the person under consideration in this area of the law of tort. He need not
be the owner to be liable under this head.In Wheat v Lacon [1966] – landlord and tenant of pub both owed duty
of care to guest injured on stairs. Also, in Harris v Birkenhead Corp [1976] – the council was the occupier of a
compulsorily purchased house, which was no longer resided in by previous owner.
 Wheat v E Lacon & Co Ltd [1966] AC 552

 Facts: The husband of the claimant fell down the back staircase of an inn where he was a lodger. The handrail was short and there was no
light bulb in the fitting at the top of the stairs. The respondents owned the inn and employed a manager who lived on the premises and
who had permission to take in lodgers.

 Held: Both the Richardson's and Lacon were occupiers for the purposes of the Occupiers Liability Act 1957 and therefore both owed the
common duty of care. It is possible to have more than one occupier. The question of whether a particular person is an occupier under
the Act is whether they have occupational control. Lacon had only granted a license to the Richardson's and had retained the right to
repair which gave them a sufficient degree of control. There is no requirement of physical occupation. However, it was found that Lacon
was not in breach of duty since the provision of light bulbs would have been part of the day-to-day management duties of the
Richardson’s.

 Lord Denning: “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 the person coming lawfully there is his "
visitor ": and the " occupier " 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. Suffice it that he has some degree of control. He
may share the control with others. Two or more may be " occupiers ". And whenever this happens, each is under a duty to use care
towards persons coming lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor
who is injured in consequence of his failure, but each may have a claim to contribution from the other .
 Premises includes not only
land or building, but any
PREMISES
fixed or moveable structure
including any ship, vehicle or
aircraft. This has covered:
 A ship in dry dock: London
Graving Dock v Horton
[1951] AC 737 (HL);
 Aircraft: Fosbroke-Hobbes v
Airwork Ltd [1937] 1 All ER
108 (DC);
 Scaffolding and ladders
(moveable structures):
Wheeler v Copas [1981] 3
All ER 405 (DC)
 Duty?
 In the law, the duty is to take such care as in all the circumstances
of the case to see that the visitor will be reasonably safe in using
the premises for the purposes for which he is invited or permitted
to be there.
 The duty is based around preventing injury in visitors, rather than
ensuring that premises are objectively safe.
DUTY OF CARE:

Invitees
Licensees
Trespassers
  An invitee: a person who is “invited onto the premises by the
owner/occupier for some purpose of business or of material
interest”. e.g. a shopper in a supermarket.

 A person was an invitee at common law if he was on premises

on lawful business while fulfilling a contract in which both he
and the occupier of the premises had an interest, and not on a

Category 1: bare permission : Indermaur v Dames [1861-73] All ER Rep

15 at 20. In terms of the business invitee and the duty of care:

 At common law, the occupier of premises owes a contractual

INVITEES entrant ( an invitee) a duty to exercise reasonable care to
prevent damage to the invitee from an unusual danger known to
the occupier or of which the occupier ought to have known :
Indermaur v Dames The cases suggest that there is a
contractual warranty that the premises are as safe as reasonable
care and skill could make them.
 DUTY TO INVITEE:
UNUSUAL DANGER

• There is a duty to use reasonable care to prevent damage to the entrant from unusual danger of which the occupier knows or ought

to know.

• An ‘unusual danger’ is one which is ‘not usually found in carrying out the task or fulfilling the function which the invitee has in

hand’. Whether a danger is unusual or not depends not only on the character of the danger itself, but also on ‘the nature of the

premises , the purpose of the invitation and the person invited.

 The occupier’s duty is ‘not an absolute duty to prevent any damage to the plaintiff, but is a lesser one of using reasonable care to

prevent damage to the plaintiff from an unusual danger of which the defendant knew or ought to have known, and of which the

plaintiff did not know or of which he could not have been aware’: Cox v Chan.
 Case examples:

 In London Graving Dock Co. v Horton 1951 AC 737 the court held: “I think ‘unusual’ is

used in an objective sense and means danger as is not usually found in carrying out the task

or fulfilling the function which the invitee has in hand, though what is unusual will, of

course vary with the reasons for which the invitee enters the premises”. (purpose)

 It is not necessary to prove that the danger was unusual to the invitee. It is enough to

ascertain the class of persons invited and, if the invitee is within that class, to ascertain

whether the danger was unusual to persons of that class: Kirpalani’s Ltd v Hoyte 1977 CA

TT Civil Appeal 77 of 1971 ( person invited)

Category 2
LICENSEES
 LICENSEE
A licensee is a person, e.g. a guest at a party or visitor to a public park, permitted by the occupier to be on premises in

circumstances where the visit does not materially benefit the occupier.

That permission can range very widely: it embraces cases where the licensee derives a clear benefit at the expense of the

occupier as, for example, where a householder permits a stranger to make a telephone call without charge as well as cases

where there is a mutuality of benefit – as, for example, in the case of a social guest at a party: Law Reform Commission

Report

Generally, a licensee is a person who enters the premises with the occupier’s gratuitous permission, be it

express or implied. Usually, the occupier does not have any interest in the presence of the licensee on his premises, unlike

a contractual entrant and an invitee. The leading distinction between an invitee and a licensee is that, in the case of the

former, invitor and invitee have a common interest, while, in the latter, licensor and licensee have none.
 DUTY TO LICENSEE

The occupier’s duty towards a licensee is limited to warning him of any concealed dangers or traps

of which the occupier has actual knowledge and of which the licensee has not. See Rooney v

Connolly [1987] ILRM 768 at 788 (per McCarthy J)

In Mersey Docks and Harbour Board v Proctor 1923 AC 253-Lrd Sumner noted that : “A licensee

takes premises, which he is merely permitted to enter, just as he finds them. The one exception to this is

that, as it is put shortly, the occupier must not lay a trap for him or expose him to a danger not obvious

nor to be expected there under the circumstances. If the danger is obvious, the licensee must look out

for himself: if it is one to be expected, he must expect it and take his own precautions…”.
 DUTY TO LICENSEE: CONCEALED
DANGERS

 Glasgow Corporation v Taylor - [1921] All ER Rep 1 “aware of the existence of a

concealed or disguised danger to which the child might be exposed when he frequented

their park, a danger of which he was entirely ignorant and could not by himself reasonably

discover…”
CATEGORY 3
TRESPASSERS
 TRESPASSERS
A trespasser is a person who enters premises without any express or implied
permission of the occupier. His existence on the premises may not be
known to the occupier, such as a wandering child, a thief, a person who has
lost his way, and so forth. Robert Addie & Sons (Collieries) Ltd v
Dumbreck [1929] AC 358 (HL)

Initially the duty owed to trespassers was that as laid down in Robert Addie
& Sons Ltd v Dumbreck, where the court stated that in general an occupier
does no owe a duty to trespasser as he had entered without
permission and is therefore assumed to have accepted all risks and
any danger there might be on the property. This decision was overruled
in British Railways Board v Herrington.

This rule was felt to be unduly harsh to trespassers, particularly ‘innocent’

ones, such as playful children or wandering adults, and was altered in 1972
by the leading case of British Rlys Board v Herrington. There, it was laid
down that, whereas an occupier does not owe a duty of care to trespassers,
he does owe a duty of ‘common humanity’, or a duty to act ‘in
accordance with common standards of civilised behaviour’.
 British Rlys Board v Herrington [1972] 1 All ER 749, p 783

 Facts: A six year old boy was electrocuted and suffered severe burns when he wondered from a play park onto a live railway line. The
railway line was surrounded by a fence however, part of the fence had been pushed down and the gap created had been used frequently as a
short cut to the park. The defendant was aware of the gap in the fence which had been present for several months, but had failed to do
anything about it. Under existing authority of Addie v Dumbreck no duty of care was owed to trespassers. However, the House of Lords
departed from their previous decision using the 1966 Practice Statement and held that the defendant railway company did owe a duty of
common humanity to trespassers.

 Held: Lord Pearson: "It seems to me that the rule in Addie v. Dumbreck has been rendered obsolete by changes in physical and social
conditions and has become an incumbrance impeding the proper development of the law. With the increase of the population and the larger
proportion living in cities and towns and the extensive substitution of blocks of flats for rows of houses with gardens or back yards and
quiet streets, there is less playing space for children and so a greater temptation to trespass. There is less supervision of children, so that
they are more likely to trespass. Also with the progress of technology there are more and greater dangers for them to encounter by reason of
the increased use of, for instance, electricity, gas, fast moving vehicles, heavy machinery and poisonous chemicals. There is considerably
more need than there used to be for occupiers to take reasonable steps with a view to deterring persons, especially children, from
trespassing in places that are dangerous for them. In my opinion the Addie v. Dumbreck formulation of the duly of occupier to trespasser is
plainly inadequate for modern conditions, and its rigid and restrictive character has impeded the proper development of the common law in
this field. It has become an anomaly and should be discarded."
SUMMARY OF THE DUTY.
DUTY OF CARE
SPECIAL
CATEGORIES
 CHILDREN

An occupier is expected to be prepared for children to be less careful that adults, and for the fact that

they are naturally curious and inquisitive. They are not to be tempted or provided with an allure. The

occupier must have regard to the fact that what may not be a danger to an adult might well be a danger

to a child. For instance, children might be tempted to eat brightly coloured but poisonous berries in a

garden, or to play with a disused vehicle in a yard; and if a child is injured thereby, the occupier may

be liable for failing to remove the objects, or at least to take reasonable precautions to prevent children

from tampering with them.

 SEE Titchener v British Railways Board [1983] 1 WLR 1427 for some discussion on older
children.
Glasgow Corporation v Taylor
[1922] 1 AC 44 (HL)
 Facts: A seven-year-old child died after eating poisonous
berries in a public park. The plants were fenced off but there
were no notices warning that the berries were poisonous.
 Legal principle: “The berries looked alluring and as
harmless as grapes or cherries. It is averred that the defenders
and their agents knew this and knew—which the deceased
child did not—that the berries were, if eaten, highly
poisonous. The defenders were, therefore, aware of the
existence of a concealed or disguised danger to which the
child might be exposed when he frequented their park, a
danger of which he was entirely ignorant, and could not by
himself reasonably discover, yet they did nothing to protect
him from that danger or even inform him of its existence...”
 “The liability of defendants in cases of this kind rests, I think,
in the last resort upon their knowledge that by their action
they may bring children of tender years, unable to take care
of themselves, yet inquisitive and easily tempted, into
contact, in a place in which they, the children, have a right to
be, with things alluring or tempting to them, and possibly in
appearance harmless, but which, unknown to them and well
known to the defendants, are hurtful or dangerous if meddled
with.”
 Phipps v Rochester Corporation [1955] 1 QB 450 (DC)
 Facts: A boy aged five years fell into a ditch which had been dug for the purpose
of laying a sewer on a new housing estate. Some of the houses were already
occupied and it was known by the corporation that children were tending to play
in the area where the ditch was. Devlin J, having decided that the boy claimant
was a licensee, he continued:
 Legal principle: “Even if it be prudent, which I do not think it is, for a parent to
allow two small children out in this way on an October evening, the parents might
at least have satisfied themselves that the place to which they allowed these little
children to go held no dangers for them. Any parent who looked could have seen
the trench and taken steps to prevent his child going there while it was still open.
In my judgment, the defendants are entitled to assume that parents would behave
in this naturally prudent way, and are not obliged to take it on themselves, in
effect, to discharge parental duties. I conclude, therefore, that the infant [claimant]
was on the land as a licensee, but that there was no breach of the defendants’ duty
towards him.”
 The court held that the defendant was entitled to assume that parents would take
primary responsibility for the safety and control of their children.
 THOSE WHO ENTER
AS OF RIGHT.
The law gives rights of entry to certain categories of
people which render them within the definition of a
lawful visitor irrespective of the wishes of the occupier
of the land. The modern tendency is to treat such
persons as licensees and therefore the Occupier is only
liable for concealed danger of which the occupier
knows. For example:

 Those whom the occupier has no legal right to keep

out:
 Policemen in the execution of a warrant.
 Public officer who enters private premises in
pursuance of his official duties.

 Those who enter land or structures under the

control of public bodies
 -public recreation ground
 -public library
SKILLED PERSONS
 Occupiers can assume that such visitors will have a
greater awareness of risks and the relevant precautions
that they should take - although importantly, 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.
 While it is true that skilled visitors are not owed a
duty in relation to the sorts of risk of which they
would be especially aware by virtue of their expertise,
it does not follow that they are not owed a duty in
relation to any risk.
 SEE General Cleaning Contractors Ltd v Christmas
[1953] AC 180.
 INDEPENDENT CONTRACTORS
 Where the injury to the visitor is caused by the faulty execution of any work of construction, maintenance or repair by an

independent contractor employed by the occupier, the latter will not be liable if he acted reasonably in entrusting the work to the

contractor; and he took reasonable steps to satisfy himself that the contractor was competent and that the work had been properly

done.

 Indermaur v Dames : “In many cases, especially where technical skill is required (e.g. wiring the house, installing central

heating, etc.), and where the occupier himself does not possess such skill, he will be obliged to employ an independent contractor

to do the work: even more, it may be negligent if he does not do so. Regarding independent contractors the occupier's duty is two-

fold: first, he has the duty to exercise reasonable care in the selection of competent contractors to do the job: secondly,

when the job has been done he has the duty to inspect and to remedy obvious defects of a non-technical nature which he

could be expected to see. He will not be liable for technical defects which he could not discover, provided he used reasonable care

in his selection.”
 INDEPENDENT CONTRACTOR:
CONSIDERATIONS
 What did the occupier do to check the competence of the contractor?
 Did he request/review references?
 Did he check that the contractor was qualified or registered with a trade association?
 Did he ask to see examples of his work?

 What did the occupier do to check the quality of the work?

 Did he make periodic inspections when the work was in progress?
 Did he ask for progress reports?
 Did he inspect the finished work?
  Facts: The case involved a hydraulic lift which was used to
access the upper floor flats of an apartment block which were
rented out to tenants. The landlord remained in occupation of
the lift and had insurance against third party risks while using
the lift. The insurance company made occasional inspections of
Haseldine v C.A. the lift in this respect. There was also an agreement made
between the landlord and an engineering company to maintain
Daw & Son Ltd the lift each month and report issues. The engineers told the
landlord the rams were badly worn but not that it was dangerous
[1941] 2 KB 343 to use. On one visit, one of the engineers failed to repack the
machinery properly, leaving it weakened for the next use. The
next day, the plaintiff used the lift and was injured when the lift
broke. The plaintiff brought an action against the landlord and
engineers.

 Held: The Court of Appeal held that the only obligation on the
landlord was to ensure that the lift was reasonably safe and that
he had employed competent engineers to inspect the machinery.
Therefore, his duty was discharged by engaging a reputable and
competent contractors. It was held on this basis that the landlord
was not liable for the incident.
Review: Special Categories
DEFENCES

 Acceptance (volenti non fit

injuria).
 Exclusion of Liability.
 Contributory Negligence.
  Volenti Non-Fit Injuria – “no duty owed to any person
in respect of risks willingly accepted as his by that
person.”

 Ratcliffe v McConnell (1999) – plaintiff jumped into

ASSUMPTION swimming pool marked with warning signs, suffering
OF RISKS serious injuries. The court held that the (jumping into
an obviously shallow pool with warning signs during
winter), plaintiff should have known of the risk and, by
acting, had accepted the risk.
 EXCLUSION OF LIABILITY
 The occupier may restrict or exclude altogether his duty
of care ‘by agreement or otherwise’ with the visitor.
Thus, the occupier may escape liability by posting a
notice at the entrance to the premises to the effect that
every person enters at his own risk and should have no
claim against the occupier for any damage or injury.

 However, a warning given to the visitor will not be

treated as absolving the occupier of liability unless in all
the circumstances it was enough to enable the visitor to
be reasonably safe. The warning notices – must be clear
and reasonable. Visible (if written). Clearly spoken (if
oral), must specify danger so its clear to visitor what
steps he must take to avoid it. There is generally no duty
to warn against ‘obvious dangers.’
 WARNING SIGNS
 The following factors should be considered when deciding
whether a warning sign was ‘enough to enable the visitor to
be reasonably safe’:
 How specific was the warning? For example, consider the
difference between ‘Caution’ and ‘Caution: slippery
surface’; the warning should be sufficiently precise so that
the visitor knows what risk he is facing.
 How obvious was the danger? Hidden dangers necessitate
greater efforts to call attention to them than readily apparent
risks. In Staples v West Dorset District Council [1995] 93
LGR 536 (CA), it was held that the risks posed by wet algae
on a high wall were so obvious that there was no need for a
warning sign.
 Is the sign combined with other safety measures? The use of
fencing or barriers emphasises the need for safety.
 What sort of visitor is targeted? Something more than a sign
may be needed to guard against risks that are linked to
children.
 Roles v Nathan [1963] 1 WLR 1117

 Facts: Two brothers, Donald and Joseph Roles were engaged by Mr Nathan as chimney sweeps to clean the flues in in a central heating
system at Manchester Assembly Rooms. The flues had become dangerous due to carbon monoxide emissions. A heating engineer had
warned them of the danger, however, the brothers told him they knew of the dangers and had been flue inspectors for many years. The
engineer monitored the situation throughout the day and at one point ordered everybody out of the building due to the levels of carbon
monoxide. The brothers ignored this advice and continued with their work. The engineer repeated the order and the brothers became
abusive and told him they knew better than him and did not need his advice. The engineer forcibly removed them from the building. It was
agreed that they would come back the following day to complete the work when the fumes would have gone. They were also told they
should not do the work whilst the fires were lighted. However, the next day the brothers were found dead in the basement having returned
the previous evening to complete the work when the fires were lit. Their widows brought an action under the Occupiers Liability Act 1957.

 Held: The defendant was not liable. The dangers were special risks ordinarily incident to their calling. The warnings issued were clear and
the brothers would have been safe had they heeded the warnings. A warning does not absolve the occupier, unless it is enough to enable the
visitor to be reasonably safe. I am quite clear that the warnings which were given to the sweeps were enough to enable them to be
reasonably safe. The sweeps would have been quite safe if they had heeded these warnings. They should not have come back that evening
and attempted to seal up the sweep-hole while the fire was still alight. They ought to have waited till next morning, and then they should
have seen that the fire was out before they attempted to seal up the sweep-hole. In any case they should not have stayed too long in the
sweep-hole. In short, it was entirely their own fault. The judge held that it was contributory negligence. I would go further and say that
under the Act the occupier has, by the warnings, discharged his duty.
 CONTRIBUTORY
NEGLIGENCE

Law Reform Act ( Miscellaneous

Provisions), Section 9, CAP 6:02

( please review the act to read the

ENTIRE section)
TOPIC MAP
 Briefly, an occupier’s liability arises in a situation where the premises are not
safe as it should reasonably be and this defective state, which includes activities
carried out on the premises; causes injury or damage to the Plaintiff.

The common law approach divides entrants into distinct categories and ascribes

CONCLUSION a distinct duty to the occupier relative to each of these categories. This
categorical division has since changed in several territories that now have
legislation. An occupier also has a duty to specific categories of persons.
(skilled persons and children)

An occupier may absolve himself from liability by claiming a defence such as

contributory negligence, assumption of the risk and an exclusion clause.

  Jones, M. Textbook on Torts, London: Blackstone Press, 2003.

 Kodilinye, G. Commonwealth Caribbean Tort Law, London:

REFERENCES Cavendish, 2002.

 Law Reform Commission Report on Occupiers’ Liability (LRC

46-1994), ( IRELAND)

 Rogers, W. The Law of Tort, London: Sweet and Maxwell, 1994.

 Winfield, P. H. & Jolowicz, J. A. & Rogers, W. V. H. 1979,

Winfield and Jolowicz on tort Sweet & Maxwell London