FOUNDATIONS OF TORT

LECTURES 2021/22

SEMESTER 2
Lecture Syllabus 4 (SHB)

Occupiers’ Liability

Occupiers’ Liability: Summary

Liability to lawful visitors

1. Under the Occupiers’ Liability Act 1957, an “occupier of land” owes to their
“lawful visitors” a “common duty of care” as regards “dangers due to the state of
the premises or to things done or omitted to be done on them”. “Land” includes a
“fixed or moveable structure” (1957 Act s.1(3)(a)). Liability extends to personal
injury and damage to property (1957 Act s.1(3)(b)).

2. An “occupier” of land is as defined by common law (1957 Act s.1(2)) and is a

person with a sufficient degree of control over the land (Wheat v Lacon). There
may be more than one occupier, in which case the duty of each is proportionate
to the degree of control (Wheat v Lacon).

3. A “lawful visitor” is as defined by reference to the common law concepts of

invitee and licensee (1957 Act s.1(2)) and is a person who enters land with the
express or implied permission of the occupier. A person exercising a public or
private right of way or the “right to roam” under the Countryside and Rights of
Way Act 2000 is not the “lawful visitor” of the occupier of the land over which the
right of way passes or in respect of which the “right to roam” arises.

4. The common duty of care is a “duty 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” (1957 Act s.2(2)). This may on the facts give rise to a
need for the occupier to take positive steps to inspect the premises for defects
and dangers and, if present, either to remedy them or warn the entrant of their
existence. A warning must enable the visitor to be reasonably safe ((1957 Act
s.2(4(a)). Particular considerations apply where the entrant is a child or an expert
((1957 Act s.2(3)) or the danger is caused by an independent contractor ((1957
Act s.2(4)(b)).

5. “Dangers due to the state of the premises or to things done or omitted to be

done on them” include dangers arising from defects on the premises and an
occupier’s failure to control the activities of third parties, but not dangers properly
regarded as arising from the behaviour of the entrant (Tomlinson v Congleton
BC).

1
6. Special rules apply to lawful visitors who enter premises by virtue of a contract
between the occupier and a third party (1957 Act s.3) or between the occupier
and themselves (1957 Act s.3).

7. An occupier owes the “common duty of care” “to all his visitors, except in so
far as he is free to and does extend, restrict, modify or exclude his duty to any
visitor or visitors by agreement or otherwise” (1957 Act s.2(1)). Exclusion of
liability is possible by contract or displaying a notice, but may be barred by UCTA
1977 or the Consumer Rights Act 2015.

Liability to persons other than lawful visitors

1. Liability of an occupier to persons other than lawful visitors (usually

trespassers) was originally confined to deliberate or reckless conduct. Liability for
careless conduct, in limited circumstances, was first was established at common
law by British Railways Board v Herrington, subsequently replaced by the
Occupiers’ Liability Act 1984.

2. The duty of the occupier under the 1984 Act applies in respect of persons other
than lawful visitors (except those exercising public rights of way over a highway
(1984 Act s. 1(7)).

3. The duty arises in narrower circumstances than under the 1957 Act, and only
in respect of risks of personal injury and not damage to property (1984 Act
s.1(1), (8)). This duty arises where there is a “danger due to the state of the
premises or to things done or omitted to be done on them” (1984 Act s.1(1)).
There will be no liability for dangers properly regarded as arising from the
behaviour of the entrant (Tomlinson v Congleton BC)
It must be shown that:

“(a) [the occupier] is aware of the danger or has reasonable grounds to believe
that it exists;

(b) 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

(c) the risk is one against which, in all the circumstances of the case, he may
reasonably be expected to offer the other some protection” (1984 Act s.1(3)).

4. Where the duty arises, it “is to take such care as is reasonable in all the
circumstances of the case to see that he does not suffer injury on the premises by
reason of the danger concerned” (1984 Act s.1(4)). Any such duty “may, in an
appropriate case, be discharged by taking such steps as are reasonable in all the
circumstances of the case to give warning of the danger concerned or to
discourage persons from incurring the risk” (1984 Act s.1(5)) (unlike a warning
under the 1957 Act this does not have to enable the visitor to be reasonably
safe).

5. Special rules (outside the scope of the module) apply to those exercising the
right to roam.

6. It is not clear whether a duty under the 1984 Act can be excluded by contract
or a notice. If it can, UCTA and the Consumer Rights Act 2015 do not apply.

7. The liability of an occupier (and probably a non-occupier) for their own

2
 dangerous act towards a trespasser is governed by the common law, which
applies the principles of the 1984 Act by analogy (Revill v Newbury).

8. The liability of a non-occupier to a lawful visitor is covered by negligence at

common law (Billings v Riden)

A. Introduction

Occupiers’ Liability Act 1957

Defective Premises Act 1972
British Railways Board v Herrington [1972] A.C. 877

Occupiers’ Liability Act 1984

Countryside and Rights of Way Act 2000

B. The Common Law

Occupier did owe a duty to anyone who entered the land lawfully.

Categories of entrant (different levels of duty would be applied):

 Contractual entrants: extent of duty depended on express or implied

terms of the contract
 Invitees: duty to protect from an “unusual danger” (person going into
shop)
 Licensees: come onto land for their own purposes, they have permission.
Duty to warn of any “concealed dangers” or “traps” of which the occupier
actually knew.
 Trespassers: duty to refrain from creating a danger intentionally or
through a reckless disregard of the trespasser’s presence.

There are many areas of uncertainty between both the categories of entrants and the
substance of the law.

Rules regarded as unsatisfactory:

London Graving Dock Co v Horton [1951] A.C. 737 (claim barred simply because
C was aware of the danger)

The common law of negligence was regarded as applicable to risks arising from
an activity of the occupier so there was uncertainty between negligence and OL:

Gallagher v Humphrey (1862) 6 L.T. 684

C injured on Ds property, the chain of a crane, goods fell on C, C was licensee,
this should be dealt with on negligence not the narrow rule of OA.

Slater v Clay Cross Co Ltd [1956] 2 Q.B. 264

C was hit by a train in a tunnel by a negligent driver, this was again to be dealt
with under negligence.
Law Reform Committee, Third Report, Occupiers’ Liability to Invitees, Licensees
and Trespassers (Cmd. 9305), 1954)

3
C. Liability to Lawful Visitors and Contractual Entrants: the Occupiers’
Liability Act 1957

Occupiers’ Liability Act 1957

Liability in tort

1 Preliminary

(1) The rules enacted by the two next following sections shall have effect, in place
of the rules of the common law, to regulate the duty which an occupier of
premises owes to his visitors in respect of dangers due to the state of the
premises or to things done or omitted to be done on them.

(2) The rules so enacted shall regulate the nature of the duty imposed by law in
consequence of a person’s occupation or control of premises and of any
invitation or permission he gives (or is to be treated as giving) to another to
enter or use the premises, but they shall not alter the rules of the common
law as to the persons on whom a duty is so imposed or to whom it is owed;
and accordingly for the purpose of the rules so enacted the persons who are
to be treated as an occupier and as his visitors are the same (subject to
subsection (4) of this section) as the persons who would at common law be
treated as an occupier and as his invitees or licensees.

(3) The rules so enacted in relation to an occupier of premises and his visitors
shall also apply, in like manner and to the like extent as the principles
applicable at common law to an occupier of premises and his invitees or
licensees would apply, to regulate—

(a) the obligations of a person occupying or having control over any fixed or
moveable structure, including any vessel, vehicle or aircraft; and

(b) the obligations of a person occupying or having control over any premises or
structure in respect of damage to property, including the property of persons
who are not themselves his visitors.

[(4)] A person entering any premises in exercise of rights conferred by

virtue of—

(a) section 2(1) of the Countryside and Rights of Way Act 2000, or

(b) an access agreement or order under the National Parks and Access to the
Countryside Act 1949,

is not, for the purposes of this Act, a visitor of the occupier of the premises.]

4
2 Extent of occupier’s ordinary duty

(1) An occupier of premises owes the same duty, the “common duty of care”, to
all his visitors, except in so far as he is free to and does extend, restrict,
modify or exclude his duty to any visitor or visitors by agreement or
otherwise.

(2) The common duty of care is a duty 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.

(3) The circumstances relevant for the present purpose include the degree of
care, and of want of care, which would ordinarily be looked for in such a
visitor, so that (for example) in proper cases-

(a) an occupier must be prepared for children to be less careful than adults; and

(b) an occupier may expect that a person, in the exercise of his calling, will
appreciate and guard against any special risks ordinarily incident to it, so far
as the occupier leaves him free to do so.

(4) In determining whether the occupier of premises has discharged the common
duty of care to a visitor, regard is to be had to all the circumstances, so that
(for example)-

(a) where damage is caused to a visitor by a danger of which he had been

warned by the occupier, the warning is not to be treated without more as
absolving the occupier from liability, unless in all the circumstances it was
enough to enable the visitor to be reasonably safe; and

(b) where damage is caused to a visitor by a danger due to the faulty execution
of any work of construction, maintenance or repair by an independent
contractor employed by the occupier, the occupier is not to be treated without
more as answerable for the danger if in all the circumstances he had acted
reasonably in entrusting the work to an independent contractor and had taken
such steps (if any) as he reasonably ought in order to satisfy himself that the
contractor was competent and that the work had been properly done.

(5) The common duty of care does not impose on an occupier any obligation to a
visitor in respect of risks willingly accepted as his by the visitor (the question
whether a risk was so accepted to be decided on the same principles as in
other cases in which one person owes a duty of care to another).

(6) For the purposes of this section, persons who enter premises for any purpose
in the exercise of a right conferred by law are to be treated as permitted by
the occupier to be there for that purpose whether they in fact have his
permission or not.

5
3 Effect of contract on occupier’s liability to third party

(1) Where an occupier of premises is bound by contract to permit persons who

are strangers to the contract to enter or use the premises, the duty of care
which he owes to them as his visitors cannot be restricted or excluded by that
contract, but (subject to any provision of the contract to the contrary) shall
include the duty to perform his obligations under the contract, whether
undertaken for their protection or not, in so far as those obligations go
beyond the obligations otherwise involved in that duty.

(2) A contract shall not by virtue of this section have the effect, unless it
expressly so provides, of making an occupier who has taken all reasonable
care answerable to strangers to the contract for dangers due to the faulty
execution of any work of construction, maintenance or repair or other like
operation by persons other than himself, his servants and persons acting
under his direction and control.

(3) In this section “stranger to the contract” means a person not for the time
being entitled to the benefit of the contract as a party to it or as the successor
by assignment or otherwise of a party to it, and accordingly includes a party
to the contract who has ceased to be so entitled.

(4) Where by the terms or conditions governing any tenancy (including a

statutory tenancy which does not in law amount to a tenancy) either the
landlord or the tenant is bound, though not by contract, to permit persons to
enter or use premises of which he is the occupier, this section shall apply as if
the tenancy were a contract between the landlord and the tenant.

(5) This section, in so far as it prevents the common duty of care from being
restricted or excluded, applies to contracts entered into and tenancies created
before the commencement of this Act, as well as to those entered into or
created after its commencement; but, in so far as it enlarges the duty owed
by an occupier beyond the common duty of care, it shall have effect only in
relation to obligations which are undertaken after that commencement or
which are renewed by agreement (whether express or implied) after that
commencement….

Liability in contract

5 Implied term in contracts.

(1) Where persons enter or use, or bring or send goods to, any premises in
exercise of a right conferred by contract with a person occupying or having
control of the premises, the duty he owes them in respect of dangers due to
the state of the premises or to things done or omitted to be done on them, in
so far as the duty depends on a term to be implied in the contract by reason
of its conferring that right, shall be the common duty of care.

(2) The foregoing subsection shall apply to fixed and moveable structures as it
applies to premises.

(3) This section does not affect the obligations imposed on a person by or by
virtue of any contract for the hire of, or for the carriage for reward of persons
or goods in, any vehicle, vessel, aircraft or other means of transport, or by or
by virtue of any contract of bailment.

6
 (4) This section does not apply to contracts entered into before the
commencement of this Act.

Notes

1 s.1(4) was substituted by the Countryside and Rights of Way Act 2000, s.
13(1), with effect from September 19, 2004 (England) and May 28, 2005
(Wales).

2 s. 4 was repealed by the Defective Premises Act 1972, s. 6(4) and

replaced by s. 4 of that Act (see below) with effect from January 1, 1974.

3 The 1957 Act came into effect on January 1, 1958.

Structure of the law under the Occupier’s Liability Act 1957

Issues:

(1) To what matters does the Act apply?

(2) Who owes a duty under the 1957 Act? Who is the “occupier”?
(3) Who is owed a under the 1957 Act? Who is a “lawful visitor”?
(4) What is the content of the duty owed:? The “common duty of care”
(5) How, if at all can the occupier exclude their liability?
(6) What other defences may be available?

(1) To what matters does the Act apply?

(a) 1957 Act s. 1(1)

“1(1). The rules enacted by the two next following sections shall have effect,
in place of the rules of the common law, to regulate the duty which an
occupier of premises owes to his visitors in respect of dangers due to the
state of the premises or to things done or omitted to be done on them.”

Tomlinson v Congleton BC [2003] UKHL 47, [2003] 3 All E.R. 1122 (danger
arising from C’s decision to dive into lake at a country park where there was a
risk arising from misjudgment of the dive held not to be a “danger due to the
state of the premises”. He hit his head and was seriously injured. There was a
sign that said dangerous water no swimming, but they knew members of the
public often swam in the lake.)

Lord Hoffmann said no dangers due to the state of the premises. The risk
arose from the misjudgement of the C.

Cf Lord Phillips of Worth Matravers MR’s comment on the facts of Tomlinson in

Donoghue v Folkestone Properties Ltd [2003] QB 1008, 1024, para [53]: "It
seems to me that Mr Tomlinson suffered his injury because he chose to
indulge in an activity which had inherent dangers, not because the premises
were in a dangerous state.“ (Endorsed by Lord Hoffmann in the HL in
Tomlinson at paras [26]-[27].)

The act does not apply as the danger does not arrive from the state of the
property or things done or omitted to be done.

7
Dangers due to the state of the premises

The White Lion Hotel (a partnership) v James [2021] EWCA Civ 31 (Deceased
fell through open sash window with very low sill, while staying at a hotel.)

Per Nicola Davies LJ: “Unlike the position in Tomlinson v Congleton BC [2004]
1 AC 46 …it is possible here to identify the state of the premises which carried
the risk of the injury. The ability to fully open the lower sash of a window with
a low sill, giving rise to the risk of a person falling out of it. Lord Hoffman in
Tomlinson referred to water as being perfectly safe for all normal activities
(the actions of the Claimant in that case being abnormal). Here the window
was not safe for all normal activities as if opened (which is the very purpose
of the sash window) it presented the risk of a fall as it was so low relative the
centre of gravity of many adults.”

There had been a breach of duty, as things could have been done to limit the
opening of the window. 60% contributory negligence due to him choosing to
sit on the window sill.

Dangers due to things done or omitted to be done on [the premises]

Lear v Hickstead Ltd. [2016] EWHC 528 (QB)

Hickstead Ltd own a show jumping stadium and organise horse shows there
and engaged contractors to help with the running of the event. One of the
jobs of WH Security Ltd was to organise parking of cars and horseboxes. An
employee of WH Security directed C Mr Lear to park the car and horsebox at a
particular place. He leaves the horsebox with the ramp down, comes back
later on and found that unknown 3rd parties had manually forced the ramp
back up and damaged it. He tries to lower it and it falls on him causing him
serious injuries. 

He sues Hickstead as occupier under 1957 Act and at Common law for
negligence, and sued WH Security for negligence. His claim was based upon
the argument that the accident happened because he had been told to park in
an inappropriate place where others had been obstructed which forced them
to force the ramp up to get away. Judge held firstly that Hickestead did owe
the common duty of care as occupier. Their occupancy duty did extent to
controlling possibly dangerous activities on the path of others. Both controlling
WH Security, the contractors, and the 3rd party. He cited Lord Hoffman's
speedboat example. Fairchild was cited but held not to apply as regards
liability to a visitor, and by that it meant any visitor to the premises as distinct
from employee of a contractor negligently doing work on the site.

Next, he decided that WH Security owed a duty at common law as regards

risk created by their management at the horsebox parking. On the facts, he
held whilst a duty was owed, there was no breach of duty. On the facts the
horsebox hadn’t been parked in an obstructive place. The 3rd party probably
just wanted a shortcut.

(Occupier may be under duty of care to control risky activities of third parties
on the land)

(b) 1957 Act s. 1(2)

“1(2). The rules so enacted shall regulate the nature of the duty imposed by
law in consequence of a person’s occupation or control of premises and of any

8
 invitation or permission he gives (or is to be treated as giving) to another to
enter or use the premises, but they shall not alter the rules of the common
law as to the persons on whom a duty is so imposed or to whom it is owed;
and accordingly for the purpose of the rules so enacted the persons who are
to be treated as an occupier and as his visitors are the same (subject to
subsection (4) of this section) as the persons who would at common law be
treated as an occupier and as his invitees or licensees.”

(c) 1957 Act s. 1(3)

Fixed and moveable structures and damage to property

“1(3). The rules so enacted in relation to an occupier of premises and his

visitors shall also apply, in like manner and to the like extent as the principles
applicable at common law to an occupier of premises and his invitees or
licensees would apply, to regulate—

(a) the obligations of a person occupying or having control over any fixed or
moveable structure, including any vessel, vehicle or aircraft; and
(b) the obligations of a person occupying or having control over any premises
or structure in respect of damage to property, including the property of
persons who are not themselves his visitors.”

(2) Who owes a duty under the 1957 Act? Who is the “occupier”?

1957 Act s. 1(2)

“1(2). The rules so enacted shall regulate the nature of the duty imposed by
law in consequence of a person’s occupation or control of premises and of any
invitation or permission he gives (or is to be treated as giving) to another to
enter or use the premises, but they shall not alter the rules of the common
law as to the persons on whom a duty is so imposed or to whom it is owed;
and accordingly for the purpose of the rules so enacted the persons who are
to be treated as an occupier and as his visitors are the same (subject to
subsection (4) of this section) as the persons who would at common law be
treated as an occupier and as his invitees or licensees.”

Wheat v E Lacon & Co Ltd [1966] A.C. 552

Per Lord Denning at p. 578:

“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’….”

If there are two or more occupiers,

“each is under a duty to use care towards [lawful visitors] dependent on his
degree of control”

(ibid)

If there is a formal lease then in those circumstances the landlord is not an

occupier.

9
 NB The position where premises are let on a tenancy is different from the
position in the case of premises which are the subject of the grant of a licence
(eg as is the case with rooms in a University hall of residence). In the case of
a tenancy, the landlord ceases to be an occupier as the right to control the
premises passes entirely to the tenant for the period of the tenancy. However,
where the premises comprise a block of flats, the landlord will retain control of
and responsibility as occupier for the “common parts”: ie roof, stairs, lifts,
corridors, entrance doors.

On the facts of Wheat v Lacon, the residential accommodation was let on a

licence not a tenancy. Both Lacon and the Richardsons were occupiers of the
staircase and the living accommodation. Both owed duties as occupiers. As to
the content of their respective duties, Lacon had to see that the structure was
reasonably safe, including the handrail, and that the system of lighting was
efficient. The Richardsons were responsible for day to day matters such as
whether the lights were properly switched on and the rugs properly laid. On
the facts neither were in breach. Wheat fell down the stairs, fractured his skull
and died. The trial judge found the Richardsons not liable. The HL found Lacon
not liable as before the accident there was no reason to believe the staircase
of be dangerous.

Matthewson v Crump [2020] EWHC 3167 (QB) per Dan Squires QC at para
[18]: [The Wheat v Lacon test] “asks whether a person has sufficient control
over premises for it to be reasonable to impose a duty on them, to expect
them to appreciate potential risks on the premises and to take reasonable
care to protect those coming to the premises from such risks.” And at para
[17]:” it is clear that being the owner of a premises is neither a necessary
requirement for occupation, nor sufficient to establish it. A person can be the
owner of a property without occupying it, and can occupy it without owning
it.”

(Here, the owner of a bungalow undergoing major building work was held not
to be an occupier; the building contractor was)

Ferguson v Welsh [1987] 3 All E.R. 777 (both local council as owner and
occupier of a building and independent contractors undertaking the demolition
of the building were occupiers)

(3) Who is owed a duty under the 1957 Act? Who is a “lawful visitor”?

1957 Act s. 1(2) ):“The rules so enacted shall regulate the nature of the duty
imposed by law in consequence of a person’s occupation or control of
premises and of any invitation or permission he gives (or is to be treated as
giving) to another to enter or use the premises, but they shall not alter the
rules of the common law as to the persons on whom a duty is so imposed or
to whom it is owed; and accordingly for the purpose of the rules so enacted
the persons who are to be treated as an occupier and as his visitors are the
same (subject to subsection (4) of this section) as the persons who would at
common law be treated as an occupier and as his invitees or licensees.”

(a) Express permission

Ferguson v Welsh [1987] 3 All E.R. 777

(b) Implied permission

10
eg the implied licence to walk up the front path of a private house to knock or
ring at the front door in order to communicate with the occupier:

Robson v Hallett [1967] 2 Q.B. 393

A police officer had been impliedly invited onto land, and was asked to leave,
but was then assaulted before he had chance to leave. So two other sergeants
without permission came in to arrest the man. This did not immediately turn
the police officer into a trespasser as they had to give him reasonable time to
leave. The other officers could enter through police powers.

eg allowing a person onto land without objection:

Cooke v Midland Great Western Railway Co of Ireland [1909] A.C. 229

 A railway company possessed a turntable in an otherwise vacant field. The

field adjoined a public road from which it was imperfectly fenced. The field
was commonly frequented by trespassers, chiefly children, whom the railway
company took no effective steps to exclude. The turntable, which was not
locked, was made to revolve by children, and the plaintiff, a four year old
child, was seriously injured thereby, and sought damages.

In these circumstances there was sufficient evidence of negligence on the part

of the railway company to support the jury’s verdict for the plaintiff.

But cf Edwards v Railway Executive [1952] A.C. 737

A particular spot on a railway was used as a short cut on a regular basis. The
fence was repaired on several occasions and whenever it was reported to
have been interfered with. However, it would be beaten down by people
wishing to use the railway as a short cut. Witness testimony was to the effect
that the fence was in good repair the morning of the incident (a child on the
railway line was injured, he was warned by his father).

Per Lord Goddard at p. 746:

“Repeated trespass of itself confers no licence; the owner of a park in the

neighbourhood of a town knows probably only too well that it will be
raided by young and old to gather flowers, nuts or mushrooms whenever
they get the opportunity. But because he does not cover his park wall
with chevaux de frise [ie pieces of glass] or post a number of keepers to
chase away intruders how is it to be said that he has licensed that which
he cannot prevent.”

Cf Lowery v Walker [1910] 1 K.B. 173, CA; [1911] A.C. 10, HL

(c) The limits of permission

The Calgarth [1927] P. 93, 110, per Scrutton L.J.:

“When you invite a person into your house to use the staircase you do not
invite him to slide down the banisters.”

Harvey v Plymouth City Council [2010] EWCA Civ 860 (implied licence for the
public to use land for recreational purposes held not to extend to reckless
behaviour of claimant in running away from a taxi to evade paying the fare)

11
 (d) Terminating permission

In the case of a gratuitous licence, permission can be revoked by giving

reasonable notice; reasonable time must then be allowed for the person to
leave before they can be treated as a trespasser (“reasonable packing up
time”): Robson v Hallett, above.

(e) Who may give or refuse permission?

This depends on the circumstances.

Wheat v Lacon, above (where there is more than one occupier it does not
follow that each has the right to grant or refuse permission)

Ferguson v Welsh, above (an occupier may give actual or ostensible authority
to a third part to grant or refuse permission to enter)

(f) Persons entering as of right

Persons who have a right to enter conferred by law (eg police officers
executing a search warrant) will because of that right be lawful visitors and
not trespassers. How the 1957 Act applies to them is governed by the 1957
Act s.2(6):

“2(6). For the purposes of this section, persons who enter premises for any
purpose in the exercise of a right conferred by law are to be treated as
permitted by the occupier to be there for that purpose whether they in fact
have his permission or not.

(g) Special cases

 a person exercising a public right of way or a private right of way
is not a “visitor” for the purposes of the 1957 Act:
Greenhalgh v British Railways Board [1969] 2 Q.B. 286 (public)
Holden v White [1982] 2 Q.B. 679 (private)

Users of a private right of way may be owed a duty under the

1984 Act

 persons exercising rights under the National Parks and Access to

the Countryside Act 1949 (access orders and access agreements
in respect of specified areas of “open country”) or the
Countryside and Rights of Way Act 2000 (the “right to roam”)
are not visitors for the purposes of the 1957 but may be owed a
duty under the 1984 Act (the details of this fall outside the scope
of the module)

(4) What is the content of the duty under the 1957 Act?

(a) Lawful visitors

 the general duty: s. 2(1), 2(2)

“2(1). An occupier of premises owes the same duty, the “common duty of
care”, to all his visitors, except in so far as he is free to and does extend,
restrict, modify or exclude his duty to any visitor or visitors by agreement or
otherwise.

12
2(2). The common duty of care is a duty 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.”

Examples and common issues where one will be in breach of their duty

Unsafe premises:

AB v Pro-nation Ltd [2016] EWHC 1022 (QB) (D held liable where C fell down
a staircase with inadequate handrails)

The White Lion Hotel (a partnership) v James [2021] EWCA Civ 31 (D held
liable where C fell through an unsafe sash window; restrictors could have
been fitted for £7/8)

Obvious dangers:

The White Lion Hotel (a partnership) v James [2021] EWCA Civ 31 (there is
no general principle that there can never be a duty to take precautions in
respect of obvious risks; C’s conduct in choosing to run an obvious risk can
be a relevant consideration))

Per Nicola Davies LJ: “[79] The focus [in Lord Hoffmann’s discussion of
breach in Tomlinson] was upon the council's hypothetical duty under section
2(2) of the 1957 Act. As I read [45] to [49], Lord Hoffmann appears to be
placing the principle relating to a claimant's acceptance of the obviousness of
a danger as one element in a balancing exercise going to the reasonableness
assessment pursuant to section 2(2) of the 1957 Act. He is balancing the
obviousness of the danger against the social and financial cost of precautions.
I do not read it as representing an absolute defence, rather he is identifying
or considering the circumstances under which it would be reasonable to hold
an occupier liable in respect of obvious dangers or risks. Lord Hoffmann
regarded Mr Tomlinson's exercise of free will in voluntarily choosing to run an
obvious risk as an important consideration, but identified other considerations
of which account should be taken, including the social value which would be
lost by the preventative measures under consideration, namely destroying
beaches.”
[83]…[A] conscious decision by a claimant to run an obvious risk may,
nevertheless, not outweigh other factors: the lack of social utility of the
particular state of the premises from which the risk arises (the ability to open
the lower sash window); the low cost of remedial measures to eliminate the
risk (£7 or £8 per window); and the real, even if relatively low, risk of an
accident…. This was a risk which was not only foreseeable, it was likely to
materialise as part of the normal activity of a visitor staying in the bedroom.”

Cf English Heritage v Taylor [2016] EWCA Civ 448 (danger not obvious on the
facts)

The Respondent, Taylor, had decided to walk down an informal path where he
lost his footing and fell over a wall into a dry moat, sustaining a serious head
injury.
A central issue was whether anyone contemplating going down the slope to
the informal pathway could have seen that there was a sheer drop into the
moat, such that there was an obvious danger.

13
 At first instance the court held that English Heritage had breached their
common law duty of care under section 2 of the Occupiers' Liability Act 1957,
by failing to provide warning signs to visitors and negligently caused Taylor to
suffer serious injury. The court also held that Taylor had contributed to his
injuries by 50%.

Need for appropriate inspection regimes:

Tedstone v Bourne Leisure Ltd (t/a Thoresby Hall Hotel & Spa) [2008]
EWCA Civ 654 (no reasonable inspection regime could have discovered pool
of water near a jacuzzi at a swimming pool)

Hall v Holker Estate Co Ltd [2008] EWCA Civ 1422 (should have been
inspection regime in respect of tubular goal set up at caravan park)

Need where appropriate for risk assessment in advance:

The White Lion Hotel (a partnership) v James [2021] EWCA Civ 31 (there had
been no risk assessment and a risk assessment “would have made a critical
difference”)

Failure to follow requirements of a risk assessment:

Wilson v GP Haden (t/a Clyne Farm Centre [2013] EWHC 229 (QB) (breach of
duty not to follow rules in risk assessment in respect of obstacle on country
assault course)

Vulnerable visitors:

Pollock v Cahill [2015] EWHC 2260 (QB) (occupier held liable where she left
open a window in a bedroom that she knew would be occupied by the
claimant, who she knew to be blind, and who fell through the window)

Particular cases mentioned in the 1957 Act: s. 2(3)(a) (children)

“2(3) The circumstances relevant for the present purpose include the degree
of care, and of want of care, which would ordinarily be looked for in such a
visitor, so that (for example) in proper cases-

(a) an occupier must be prepared for children to be less careful than adults;”

Moloney v Lambeth BC (1966) 64 L.G.R. 440 (D liable where C, aged 4, fell

through the balustrade of a staircase)

Cooke v Midland Great Western Railway Co of Ireland, above (child injured on

railway turntable)

Glasgow Corpn. v Taylor [1922] 1 A.C. 44 (child poisoned by berries in a

public park)

Note that the occupier may be entitled to assume that a very young child will
be accompanied by a responsible adult:

14
 Phipps v Rochester Corpn. [1955] 1 Q.B. 450
A 5 year old boy was walking across some open ground with his 7 year old
sister. He was not accompanied by an adult. He was injured when he fell into
a trench. The Corporation were not held liable as an occupier is entitled to
assume that prudent parents would not allow their children to go
unaccompanied to places where it is unsafe.

Simkiss v Rhondda BC (1983) 81 L.G.R. 460

1957 Act s. 2(3)(b) (Experts)

“2(3). The circumstances relevant for the present purpose include the degree
of care, and of want of care, which would ordinarily be looked for in such a
visitor, so that (for example) in proper cases-…

(b) an occupier may expect that a person, in the exercise of his calling, will
appreciate and guard against any special risks ordinarily incident to it, so far as the
occupier leaves him free to do so.”

Christmas v General Cleaning Contractors [1952] 1 K.B. 142 (occupier of club

held not liable to window cleaner in respect of risks arising from his method of
work (cleaning the window from the outside while standing on the window sill)

Roles v Nathan [1963] 1 W.L.R. 1117 (occupier of premises with a boiler not
liable where expert chimney sweeps died of carbon monoxide poisoning after
being warned of the risk)

 relevant circumstances: s. 2(4)(a) (warnings)

“2(4). In determining whether the occupier of premises has discharged the

common duty of care to a visitor, regard is to be had to all the circumstances,
so that (for example)-

(a) where damage is caused to a visitor by a danger of which he had been

warned by the occupier, the warning is not to be treated without more
as absolving the occupier from liability, unless in all the circumstances
it was enough to enable the visitor to be reasonably safe;”

Reversing London Graving Dock Co v Horton [1951] A.C. 737

Roles v Nathan, above Per Lord Denning M.R. at p. 1124:

“Suppose, for instance, that there was only one way of getting into and
out of premises, and it was by a footbridge over a stream which was
rotten and dangerous. According to Horton’s case, the occupier could
escape all liability to any visitor by putting up a notice: ‘This bridge is
dangerous’, even though there was no other way by which the visitor
could get in or out, and he had no option but to go over the bridge. In
such a case, section 2(4) makes it clear that the occupier would nowadays
be liable. But if there were two footbridges, one of which was rotten, and
the other safe a hundred yards away, the occupier could still escape
liability, even today, by putting up a notice: ‘Do not use this footbridge. It
is dangerous. There is a safe one further upstream.’ Such a warning is
sufficient because it does enable the visitor to be reasonably safe.”

15
1957 Act s. 2(4)(b) (independent contractors)

“2(4). In determining whether the occupier of premises has discharged the

common duty of care to a visitor, regard is to be had to all the circumstances,
so that (for example)-…

(b) where damage is caused to a visitor by a danger due to the faulty

execution of any work of construction, maintenance or repair by an
independent contractor employed by the occupier, the occupier is not
to be treated without more as answerable for the danger if in all the
circumstances he had acted reasonably in entrusting the work to an
independent contractor and had taken such steps (if any) as he
reasonably ought in order to satisfy himself that the contractor was
competent and that the work had been properly done.”

Confirming the position at common law:

Haseldine v Daw [1941] 2 K.B. 343 (occupier who had employed a competent
firm of engineers to maintain a lift held not liable where lift crashed)

“had taken such steps (if any) as he reasonably ought in order to satisfy
himself that the contractor was competent”

Bottomley v Todmorden Cricket Club [2003] EWCA Civ 1575 C was injured
while taking part in a dangerous pyrotechnic display when a mortar filled with
gunpowder prematurely exploded. D liable as its checks on sub-contractor
were inadequate.
(negligent operation of pyrotechnic display by incompetent contractors)

Payling v Naylor (T/A Mainstreet) [2004] EWCA Civ 560, explaining Gwilliam v
West Hertfordshire Hospital NHS Trust [2002] EWCA Civ 1041, [2003] Q.B.
443 (it may according to the circumstances be a necessary indicator of
competence that the contractor carries liability insurance)

Gwilliam: Waller LJ held that a hospital who engaged independent

contractors to operate a “splat-wall” at the hospital’s summer fete was under
a freestanding duty at common law to check that the contractor was covered
liability insurance; Lord Woolf rested a duty to check on the hospital’s duty as
occupier, it being unclear whether he regarded this as a freestanding duty in
every case; they held there was no breach of duty on the facts; Sedley LJ
dissented on both points.

Payling: CA held that there was no freestanding duty to check the liability
insurance position in every case. As the employer of the contractor would not
have to be insured or to be capable of meeting any liabilities if they operated
a splat wall, there was no reason why the employer should under any greater
liability if they employed a contractor. However, the duty to check that the
contractor was competent could in certain cases, but not in every case,
extend to requiring a check.

Mr Naylor employed Mr Whitehead, an independent contractor, to provide

security at N’s night club. W employed a door attendant who caused severe
head injuries to Mr Payling when ejecting him from the premises. W did not

16
carry liability insurance and N had not asked about that. N was held liable
because of that failure by the trial judge but this was reversed by the CA.
There was no freestanding duty to check liability insurance cover. On the
facts, N was entitled to assume that the W and his bouncers were competent
given that they were licensed by the local authority and had been used for a
while without any problem.

“had taken such steps (if any) as he reasonably ought in order to satisfy
himself that…the work had been properly done”

Woodward v Mayor of Hastings [1945] K.B. 174 (clearance of snow off a step
should have been checked)

Alexander v Freshwater Properties Ltd [2012] EWCA Civ 1048 (C injured

when finger got stuck in the door, repair to self closing mechanism on front
door of a block of flats should have been checked)

NB The 1957 Act s.2(4)(b) extends beyond faulty work of maintenance and
repair: Gwilliam; Bottomley

(b) Contractual entrants

Contract between occupier and entrant (implied terms in contract)

1957 Act s.5 (implied terms in contracts)

“5(1). Where persons enter or use, or bring or send goods to, any premises in
exercise of a right conferred by contract with a person occupying or having
control of the premises, the duty he owes them in respect of dangers due to
the state of the premises or to things done or omitted to be done on them, in
so far as the duty depends on a term to be implied in the contract by reason
of its conferring that right, shall be the common duty of care.”

Maguire v Sephton MBC [2006] All ER(D) 347 Feb, Feb 23 2006 (no room for
any other form of implied term) Only form of implied term was that the
premises where reasonably sade

Contract between occupier and third party (effect of contract with a third
party on occupier’s liability to entrant)

1957 Act s.3 (effect of contracts in occupier’s liability to third party)

“3(1). Where an occupier of premises is bound by contract to permit persons

who are strangers to the contract to enter or use the premises, the duty of
care which he owes to them as his visitors cannot be restricted or excluded by
that contract, but (subject to any provision of the contract to the contrary)
shall include the duty to perform his obligations under the contract, whether
undertaken for their protection or not, in so far as those obligations go
beyond the obligations otherwise involved in that duty.”

17
(5) How, if at all, can the occupier exclude or modify the duty?

“2(1). An occupier of premises owes the same duty, the “common duty of
care”, to all his visitors, except in so far as he is free to and does extend,
restrict, modify or exclude his duty to any visitor or visitors by agreement or
otherwise.”

White v Blackmore [1972] 2 Q.B. 651 (C bound by contractual exclusion

clause in a pre-UCTA case)

Mr White was a jalopy driver attending a race as a competitor. After

competing, he returned with his family to watch another race as a spectator.
At the entrance to the premises and within the programme, there were
warning notices purporting to exclude liability for accidents, however caused.
Mr White was standing beside the spectator’s rope when a car’s wheel became
entangled in the rope. Mr White was thrown into the air and died from his
injuries. Mrs White claimed damages in negligence and for breach of s2
Occupier’s Liability Act 1957.

Ashdown v Samuel Williams & Sons [1957] 1 Q.B. 409

Facts
 C was a licensee on land belonging to D when she was knocked down and injured
by railway trucks which were being negligently shunted along a railway line
 Notices had been posted that every person was there at his own risk and should
have no claim for injury against D
 C sued D for compensation for injury under common law (this case was prior to
the Occupiers’ Liability Act 1957)
 D argued that his liability had been excluded by the notices, but C argued in
defence that she had not read them properly
Held (Court of Appeal)
 C’s claim failed as D had taken reasonable steps to bring the conditions contained
in the notices to C’s attention

Both forms of control may be prohibited by the Unfair Contract Terms Act
1977 or the Consumer Rights Act 2015

[NB The Consumer Rights Act 2015 applies in respect of “consumer contracts”
ie contracts between a trader and a consumer. It makes similar, but not
identical provision as regards exclusion clauses to that contained in UCTA. The
details of the 2015 Act fall outside of the scope of the module. UCTA does not
apply to consumer contracts]

Unfair Contract Terms Act 1977

(as amended by the Occupiers’ Liability Act 1984 and the Consumer Rights
Act 2015)

1 Scope of Part I

(1) For the purposes of this Part of the Act, “negligence” means the breach
—

18
(a) of any obligation, arising from the express or implied terms of a
contract, to take reasonable care or exercise reasonable skill in the
performance of the contract;

(b) of any common law duty to take reasonable care or exercise

reasonable skill (but not any stricter duty);

(c) of the common duty of care imposed by the Occupiers’ Liability Act
1957 or the Occupiers’ Liability Act (Northern Ireland) 1957.

(2) This Part of this Act is subject to Part III; and in relation to contracts,
the operation of sections 2 [,3] and 7 is subject to the exceptions
made by Schedule 1.

(3) In the case of both contract and tort, sections 2 to 7 apply (except
where the contrary is stated in section 6(4)) only to business liability,
that is liability for breach of obligations or duties arising—

(a) from things done or to be done by a person in the course of a business

(whether his own business or another’s); or

(b) from the occupation of premises used for business purposes of the
occupier:

and references to liability are to be read accordingly [but liability of an

occupier of premises for breach of an obligation or duty towards a
person obtaining access to the premises for recreational or educational
purposes, being liability for loss or damage suffered by reason of the
dangerous state of the premises, is not a business liability of the
occupier unless granting that person such access for the purposes
concerned falls within the business purposes of the occupier].

(4) In relation to any breach of duty or obligation, it is immaterial for any

purpose of this Part of this Act whether the breach was inadvertent or
intentional, or whether liability for it arises directly or vicariously.

2 Negligence liability

(1) A person cannot by reference to any contract term or to a notice given

to persons generally or to particular persons exclude or restrict his
liability for death or personal injury resulting from negligence.

(2) In the case of other loss or damage, a person cannot so exclude or

restrict his liability for negligence except in so far as the term or notice
satisfies the requirement of reasonableness.

(3) Where a contract term or notice purports to exclude or restrict liability

for negligence a person’s agreement to or awareness of it is not of
itself to be taken as indicating his voluntary acceptance of any risk.

[(4) This section does not apply to—

(a) a term in a consumer contract, or

(b) a notice to the extent that it is a consumer notice,

19
 (but see the provision made about such contracts and notices in
sections 62 and 65 of the Consumer Rights Act 2015).]

11 The “reasonableness” test…

(1) … [concerns contract terms]

(2) … [concerns contract terms]

(3) In relation to a notice (not being a notice having contractual effect),

the requirement of reasonableness under this Act is that it should be
fair and reasonable to allow reliance on it, having regard to all the
circumstances obtaining when the liability arose or (but for the notice)
would have arisen….

(5) It is for those claiming that a contract term or notice satisfies the
requirement of reasonableness to show that it does.

13 Varieties of exemption clause

(1) To the extent that this Part of this Act prevents the exclusion or
restriction of any liability it also prevents—

(a) making the liability or its enforcement subject to restrictive or onerous

conditions;

(b) excluding or restricting any right or remedy in respect of the liability,

or subjecting a person to any prejudice in consequence of his pursuing
any such right or remedy;

(c) excluding or restricting rules of evidence or procedure;

and (to that extent) sections 2…[6 and] to 7 also prevent excluding or
restricting liability by reference to terms and notices which exclude or restrict
the relevant obligation or duty…

14 Interpretation of Part I

In this Part of this Act—

“business” includes a profession and the activities of any government

department or local or public authority;

[“consumer contract” has the same meaning as in the Consumer Rights Act
2015 (see section 61);]

[“consumer notice” has the same meaning as in the Consumer Rights Act
2015 (see section 61);] …

“negligence” has the meaning given by section 1(1);

“notice” includes an announcement, whether or not in writing, and any

other communication or pretended communication; and

20
 “personal injury” includes any disease and any impairment of physical or
mental condition.

(6) What other defences may be available?

Contributory negligence

Volenti non fit injuria (s. 2(5))

“2(5). The common duty of care does not impose on an occupier any obligation to
a visitor in respect of risks willingly accepted as his by the visitor (the question
whether a risk was so accepted to be decided on the same principles as in other
cases in which one person owes a duty of care to another).”

Geary v J D Wetherspoon plc [2011] EWHC 1506 (QB)

D. Liability to non-visitors: the Occupiers’ Liability Act 1984

(1) Common Law

R Addie & Sons (Collieries) Ltd v Dumbreck [1929] A.C. 358

The defendant owned View Park Colliery which was situated in a field
adjacent to a road. There was a fence around the perimeter of the field
although there were large gaps in the fence. The field was frequently used
as a short cut to a railway station and children would use it as a
playground. The defendant would often warn people off the land but the
attempts were not effective and no real attempt was made to ensure that
people did not come onto the land. A child came on to the land and was
killed when he climbed onto a piece of haulage apparatus.

Held:

No duty of care was owed to trespassers to ensure that they were safe
when coming onto the land. The only duty was not to inflict harm wilfully.

Per Lord Hailsham L.C. at p. 365

“Towards the trespasser the occupier has no duty to take reasonable care
for his protection or even to protect him from concealed danger. The
trespasser comes on to premises at his own risk. An occupier is in such a
case liable only where the injury is due to some wilful act involving
something more than the absence of reasonable care. There must be
some act done with the deliberate intention of doing harm to the
trespasser, or at least some act done with reckless disregard of the
presence of the trespasser.”

British Railways Board v Herrington [1972] A.C. 877 (HL recognised a duty
of common humanity to trespassers; BRB held liable to boy of 6 in respect
of serious injuries caused by contact with an electrified rail while
trespassing on the railway line)

21
 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.

(2) Occupiers’ Liability Act 1984

Occupiers’ Liability Act 1984

1 Duty of occupier to persons other than his visitors

(1) The rules enacted by this section shall have effect, in place of the rules
of the common law, to determine—

(a) whether any duty is owed by a person as occupier of premises to

persons other than his visitors in respect of any risk of their suffering
injury on the premises by reason of any danger due to the state of the
premises or to things done or omitted to be done on them; and

(b) if so, what that duty is.

(2) For the purposes of this section, the persons who are to be treated
respectively as an occupier of any premises (which, for those
purposes, include any fixed or movable structure) and as his visitors
are—

(a) any person who owes in relation to the premises the duty referred to in
section 2 of the Occupiers’ Liability Act 1957 (the common duty of
care), and

(b) those who are his visitors for the purposes of that duty.

(3) An occupier of premises owes a duty to another (not being his visitor)
in respect of any such risk as is referred to in subsection (1) above if—

(a) he is aware of the danger or has reasonable grounds to believe that it

exists;

(b) 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

(c) the risk is one against which, in all the circumstances of the case, he
may reasonably be expected to offer the other some protection.

(4) Where, by virtue of this section, an occupier of premises owes a duty

to another in respect of such a risk, the duty is to take such care as is
reasonable in all the circumstances of the case to see that he does not
suffer injury on the premises by reason of the danger concerned.

22
(5) Any duty owed by virtue of this section in respect of a risk may, in an
appropriate case, be discharged by taking such steps as are reasonable
in all the circumstances of the case to give warning of the danger
concerned or to discourage persons from incurring the risk.

(6) No duty is owed by virtue of this section to any person in respect of

risks willingly accepted as his by that person (the question whether a
risk was so accepted to be decided on the same principles as in other
cases in which one person owes a duty of care to another)….

(7) No duty is owed by virtue of this section to persons using the highway,
and this section does not affect any duty owed to such persons.

(8) Where a person owes a duty by virtue of this section, he does not, by
reason of any breach of the duty, incur any liability in respect of any
loss of or damage to property.

(9) In this section—

“highway” means any part of a highway other than a ferry or waterway;

“injury” means anything resulting in death or personal injury, including any

disease and any impairment of physical or mental condition; and

“movable structure” include any vessel, vehicle or aircraft.

[NB the 1984 Act ss.1(6A)-(6C) and 1A apply in respect of people

exercising the “right to roam” on specified land in the countryside under
the Countryside and Rights of Way Act 2000. These details fall outside the
scope of the module.]

Notes on the 1984 Act

1. Section 1(3)(a) and (b) are not satisfied simply because D ought to
know of the relevant facts

Swain v Puri [1996] PIQR p442

P climbed a high fence to trespass onto D’s land, climbed onto D’s roof
and, because the roof was dangerous, fell through and was injured. D did
not know that P was or might come onto the roof. P claimed that the words
“reason able grounds to believe” from s.1(3)(b) means “ought to know”
and therefore that it was no defence for D to state that he did not know
that P was or might climb onto the roof. CA dismissed the claim, stating
that actual knowledge was required and that “reasonable grounds to
believe” did NOT equal “ought to know”.

Per Evans L.J.:

“[The claimant] must prove…actual knowledge including ‘shut-eye’

knowledge either of the actual risk or of primary facts which in the opinion
of the court provide reasonable grounds for believing that the risk exists.”

“Constructive knowledge” (based on negligence) is not enough.

23
Cf. Young v Kent County Council [2005] EWHC 1342 (QB) (D held liable
where boy of 12½ climbed onto the flat roof of a school block, jumped on a
skylight and fell through, he claimed he was getting a football back. Judge
found the school knew children went up onto the roof and it was easy to
get up there. It would have been easy for them to bar the access.)

Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39 (D held not
liable where boy of 11 climbed up a fire escape on a hospital site and fell
off) Duty not owed when the injury is not due to the state of the premises,
this is simply a misjudgement of one’s surroundings.

2. The 1984 Act does not apply in respect of an activity of the occupier on
their land, but analogous principles apply at common law

Revill v Newbery [1996] Q.B. 567 (D fired a shotgun through the door of
his garden shed injuring C (aged 21) who was trying to break in; D
mistakenly believed there was no-one in front of the door and simply fired
the gun to scare thew burglar; D was held liable with C’s damages being
reduced by two-thirds for contributory negligence)

3. It is not clear whether D’s resources can be taken into account

Goldman v Hargrave [1967] 1 A.C. 645

4. It is not clear whether liability can be excluded

If it can, then the exclusion is not barred by UCTA, which does not mention
the Occupier’s Liability Act 1984. The better view is that this should not be
permitted.

5. It seems that liability will rarely be found established where a person

suffers injury as the result of their own behaviour in response to an
obvious natural hazard

Tomlinson v Congleton BC, above

Per Lord Hoffmann at paras [44]-[46]:

“I think it will be extremely rare for an occupier of land to be under a duty

to prevent people from taking risks which are inherent in the activities
they freely choose to undertake upon the land.

…It is unjust that the harmless recreation of responsible parents and

children with buckets and spades on the beaches should be prohibited in
order to comply with what is thought to be a legal duty to safeguard
irresponsible visitors against dangers which are perfectly obvious….

A duty to protect against obvious risks or self-inflicted harm exists only in

cases in which there is no genuine and informed choice, or in the case of
employees, or some lack of capacity, such as the liability of children to
recognise danger (see BRB v Herrington) or the despair of prisoners which
may lead them to inflict injury on themselves (see Reeves v Metropolitan
Police Commissioner)”

(paras [44]-[46]).

24
 (Also, there would have been no breach of a duty under the 1957 Act.)

Note that this does not mean that such a finding can never be made.

6. No duty is owed under the 1984 Act s.1 to persons using the highway

This rule is found in the 1984 Act s.1(7) (above). “Highway” is defined in
the 1984 Act s.1(9) for the purposes of the Act as “any part of the highway
other than a ferry or waterway”. The meaning of the word “highway” is
thus governed by the common law, which says that a highway is a public
right of way over a defined route. Accordingly, no duty is owed under s.1
to those using a public right of way over land.

Most roads and streets and many footpaths are public rights of way. Of
these, many but not all are “maintainable at the public expense” by the
local highway authority. Here, the local authority is under a statutory duty
to maintain the highway, which includes repairing it and keeping it
reasonably free from ice and snow (Highways Act 1980 s.41). This is a
strict duty subject to a defence if the authority can show that it has
exercised all reasonable cate (Highways Act 1980 s.58). [The issues (1)
how a right of way arises in respect of a road, street or footpath and (2)
how a public right of way becomes maintainable at the public expense lie
outside the scope of the module.]

If a person is injured as the result of a failure to maintain a highway on

land then:

(1) if the highway is maintainable at the public expense, an action cannot

lie against the owner of the land over which the highway runs but may lie
against the local highway authority
(2) if it is not so maintainable, an action cannot lie at all.
An action can lie at common law against anyone who by a negligent act
creates a danger in the highway eg by digging a hole in it.

E. Liability of non-occupiers

The liability of a non-occupier working on land will be determined by the ordinary tort of
negligence.

 Visitors:
A.C. Billings & Sons Ltd v Riden [1958] A.C. 240 (Donoghue v
Stevenson duty owed)

 Trespassers:
Buckland v Guildford Gaslight and Coke Co [1949] 1 K.B. 410 (liability
of non-occupier to trespasser subject to ordinary negligence principles)

But cf. BRB v Herrington [1972] A.C. 877 per Lord Wilberforce at p.
914 and Lord Pearson at p. 929
(Equating the liability of occupier and non-occupier to trespasser)

Revill v Newbery above will presumably apply to an act of a non-

occupier that injures a trespasser.

25
26
27