2021 Tort Study Manual Unit 4 Sub-Unit 2

UNIT 4
SPECIAL LIABILITY REGIMES
SUB-UNIT 2
OCCUPIERS’ LIABILITY
SUB-UNIT PLAN
1. HOW MANY STUDY HOURS WILL I NEED?
Text and activities: 6 hours 30 minutes
Follow-up activity: 1 hour
2. WHAT WILL I ACHIEVE BY STUDYING THIS UNIT?

▪ In this Sub-unit you will be looking at the law regulating occupiers’ liability
for losses which occur on their premises.
▪ Although claims against occupiers are brought within the framework of
Negligence, statute (namely the Occupiers’ Liability Acts 1957 and 1984)
has intervened to provide some of the applicable law.
▪ As most people will occupy premises at some point in their lives, this is
an area of law that is potentially wide-ranging in its scope and impact. As
you might expect, there are a considerable number of claims each year,
usually involving injury, which derive from these occupiers’ obligations.
▪ You will start by considering the liability of an occupier to visitors, which
is regulated by the Occupiers’ Liability Act 1957.
▪ Next you will look at an occupiers’ liability to persons who are not visitors
(namely trespassers). This is regulated by the Occupiers’ Liability Act 1984.
▪ You will also consider how the statutory provisions of both the 1957 and
1984 Acts fit in with common law Negligence.
▪ Finally, you will consider the application of both the 1957 and 1984 Acts
to factual situations.
3. HOW SHOULD I REVIEW AND FOLLOW UP MY STUDY?

▪ When you have studied the text and activities, you should check how far
you have achieved the learning outcomes listed below.
286 Unit 4: Sub-unit 2 / Occupiers’ Liability
▪ You should then attempt the follow-up activity, which will give you
additional practice, further examples, and other ways of looking at the
materials which you have studied.
4. LEARNING OUTCOMES
When you have completed this Sub-unit you should be able to:
1. Explain all the elements which a visitor needs to prove to establish a claim
under the Occupiers’ Liability Act 1957 against an occupier of premises.
2. Understand how the 1957 Act requirements fit into the normal Negligence
case analysis structure (see Unit 2: Sub-unit 1).
3. Explain all of the elements which a trespasser needs to prove to establish
a claim under the Occupiers’ Liability Act 1984 against an occupier of
premises.
4. Understand how the 1984 Act requirements fit into the normal Negligence
case analysis structure (see Unit 2: Sub-unit 1).
5. Apply the law accurately in analysing a set of facts.
Unit 4: Sub-unit 2 / Occupiers’ Liability 287
CONTENTS
1. INTRODUCTION 289
ACTIVITY 1 Scope of the Occupiers’ Liability Acts 1957 and 1984
289
2. LIABILITY OF OCCUPIERS TO VISITORS 290
2.1 Introduction 290
ACTIVITY 2 Establishing an Occupier’s Liability 290
2.2 Who is an Occupier? 291
ACTIVITY 3 Definition of an Occupier 291
2.3 Who is a ‘Visitor’? 293
ACTIVITY 4 Definition of ‘Visitors’ 294
ACTIVITY 5 Classification of Entrant 294
2.4 Premises 296
ACTIVITY 6 Definition of ‘Premises’ for Purposes of the 1957 Act
297
2.5 The Common Duty of Care 297
ACTIVITY 7 Nature of the Common Duty of Care 297
2.6 Breach of the Common Duty of Care 297
ACTIVITY 8 Standard of Care: Relevant Factors 298
ACTIVITY 9 Breach of Duty and ‘Special’ Visitors 298
2.6.1 Children 300
ACTIVITY 10 Child Visitors and Allurements 300
ACTIVITY 11 Responsibility for the Safety of Very Young Children
301
2.6.2 Skilled visitors 302
ACTIVITY 12 Skilled Visitors 303
2.6.3 Escaping breach by warnings 304
ACTIVITY 13 Warnings 304
ACTIVITY 14 Distinction between Warnings and Exclusion Notices
307
2.6.4 Independent contractors 307
ACTIVITY 15 Occupiers’ Liability for Independent Contractors 308
ACTIVITY 16 Checking the Work of an Independent Contractor 308
2.7 Causation and Remoteness of Damage 309
2.8 Defences 309
2.8.1 Voluntary assumption of risk (volenti non fit injuria/consent)
309
ACTIVITY 17 Voluntary Assumption of Risk (Volenti) 309
2.8.2 Exclusion of liability 310
ACTIVITY 18 Exclusion of Liability 310
ACTIVITY 19 Effect of s 2 of UCTA 311
2.8.3 Contributory negligence 313
3. LIABILITY OF OCCUPIERS TO TRESPASSERS 314

3.1 Introduction 314
3.2 Who is a Trespasser? 314
3.3 The Occupiers’ Liability Act 1984 314
3.3.1 To whom is the duty owed? 314
ACTIVITY 20 Who is Owed the Duty under the 1984 Act? 314
3.3.2 Existence of the duty 315
ACTIVITY 21 Existence of the Duty under the 1984 Act 315
ACTIVITY 22 Relevant Factors for the Purposes of s 1(3)(c) of the
1984 Act 317
3.3.3 Scope of the 1984 Act duty 317
ACTIVITY 23 Scope of the Duty of Care 318
3.4 Breach of Duty 319
ACTIVITY 24 Application of s 1(4) of the 1984 Act 319
3.4.1 Warnings 319
ACTIVITY 25 Warnings 320
3.4.2 Children 320
3.5 Causation and Remoteness 320
3.6 Defences 321
3.6.1 Voluntary assumption of risk 321
ACTIVITY 26 Acceptance of the Risk 321
3.6.2 Exclusion of liability 321
3.6.3 Contributory negligence 321
3.6.4 Illegality 322
4. INDEPENDENT CONTRACTORS 322
4.1 As Occupiers 322
4.2 As Non-occupiers 322
FOLLOW-UP ACTIVITY Occupiers’ Liability 323
SUMMARY 326
REVIEW OF INTENDED OUTCOMES 327
OCCUPIERS’ LIABILITY
1. INTRODUCTION
‘Occupiers’ liability’ is another special liability regime where statute combines
with common law negligence to produce a package of obligations imposed on,
in this case, the occupier of premises.
The topic of occupiers’ liability is governed by two statutes - the Occupiers’
Liability Acts 1957 and 1984 (the ‘1957 Act’ and the ‘1984 Act’). The 1957
Act governs an occupier’s duties to ‘visitors’, and the 1984 Act governs an
occupier’s duties to others (mostly trespassers). Prior to this legislation coming
into force the law relating to occupiers’ liability was governed solely by the
common law. Although some of the older cases remain relevant in interpreting
the 1957 and 1984 Acts, you are not expected to know the previous common
law position for the purposes of this course.
In order fully to appreciate the law in this area, the activities in this Sub-unit will
take you through many of the statutory provisions. You will need to access both
the Acts as directed by the activities, using the Internet or some other source.
Before looking at the 1957 Act in detail, one issue that is common to both Acts
is the scope of potential liability. We look at this in the first activity.
ACTIVITY 1 Scope of the Occupiers’ Liability Acts 1957 and 1984 (allow 5 minutes)
Read s 1(1) of the 1957 Act (the 1984 Act contains equivalent wording).
In light of what you have read, indicate in the chart below which of the
scenarios you think would fall within the scope of the 1957 Act.
X, a visitor to Y’s house, is Covered by 1957 Act?

injured when:
1. She falls through a broken
floorboard in Y’s house.
2. She slips on some oil spilt on Y’s
garage floor.
3. She is hit by Y’s car as Y
reverses out of his garage.
4. Y drops a hammer on her which
Y was using to repair a hole in
his roof.
COMMENT
You will have noticed that by s 1(1) the 1957 Act covers ‘dangers due to the
state of the premises’. Scenarios 1 and 2 above clearly fall within this.
The wording of s 1(1) also covers ‘things done or omitted to be done on [the
premises]’. If interpreted literally, this would include any activity carried out on
an occupier’s premises. It is generally accepted that this was not the intention
of Parliament, and so activities such as scenario 3, which have nothing to
do with the state of the premises, fall outside the 1957 Act. Instead such an
incident would be governed by common law Negligence.
As regards activities which are closely connected to the state of the premises,
such as scenario 4, some cases have taken the view that these do fall within
the 1957 Act (see, for example, Ogwo v Taylor [1988] AC 431). This does remain
somewhat of a grey area, but in practical terms the differences between a claim
under the 1957 Act and a claim in common law Negligence are very slight.
2. LIABILITY OF OCCUPIERS TO VISITORS
2.1 Introduction
Someone seeking to prove an occupier’s liability to a visitor must establish

a number of important factors. You will try to identify some of these in the
next activity.
(allow 5 minutes) ACTIVITY 2 Establishing an Occupier’s Liability
Re-read s 1(1) and read s 2(1) and (2) of the 1957 Act. Make a list of the matters
a claimant would need to show in order to bring a claim within this Act.
COMMENT
To fall within the 1957 Act a claimant would need to:
▪ establish that he has suffered loss due to the state of the premises;
▪ identify the occupier;
▪ prove that he is a visitor;
▪ establish that the occupier failed to take reasonable care for his safety.
We shall be examining each of these issues in detail, starting with the very
important one of identifying the occupier.
Under both the 1957 and 1984 Acts, the duties owed are imposed on the
‘occupier’ of the premises. We must now consider who would constitute an
occupier for these purposes.
2.2 Who is an Occupier?
The Occupiers’ Liability Act 1957 does not define an occupier. It is necessary,
therefore, to look at case law for assistance. This is something you will do in
the next activity.
ACTIVITY 3 Definition of an Occupier
This Activity is in two parts.
PART 1 (allow 15 minutes)
Using the Internet, please find Wheat v E Lacon & Co Ltd [1966] 1 All ER 582.
Read Lord Denning’s judgment in so far as he comments on the meaning of
‘occupier’. Make a note of the essential characteristic of an occupier that Lord
Denning identifies.
COMMENT
The most important characteristic of an occupier is the element of control
he has over the premises. You will have noted Lord Denning’s frequent
references to an occupier as someone who has ‘a sufficient degree of control
over premises’.
Now complete the chart in Part 2 of this activity.

(allow 5 minutes) PART 2
On the basis of what you have read, please complete the chart below, by
ticking the appropriate box. Make a note of your reasons.
Situation True False

1. Only an owner of premises
can be an ‘occupier’ for the
purposes of the Occupiers’
Liability Acts.
2. Where a landlord lets flats in a
block, but retains control of the
common staircase, the landlord
will be regarded as ‘occupier’ of
that staircase.
3. There can never be more than
one ‘occupier’ of the same
premises.
4. An independent contractor,
working on another person’s
premises, could also constitute
an ‘occupier’ whilst on the
premises.
COMMENT
1. Only an owner of premises √
can be an ‘occupier’ for the
purposes of the Occupiers’
Liability Acts.
2. Where a landlord lets flats in a √
block, but retains control of the
common staircase, the landlord
will be regarded as ‘occupier’ of
that staircase.
3. There can never be more than √
one ‘occupier’ of the same
premises.

4. An independent contractor, √
working on another person’s
premises, could also constitute
an ‘occupier’ whilst on the
premises.
1. Given that the test is one of control, someone who is not an owner of the
premises can still have sufficient control over them to be an ‘occupier’ for
the purposes of the Acts. Mr and Mrs Richardson illustrate this in Wheat v
E Lacon & Co Ltd. They were only managers of the pub, and lodgers in the
rooms above, and yet they were found to be occupiers for the purposes of
the 1957 Act.
2. The landlord will have sufficient control over the common staircase to be
an ‘occupier’ of it.
3. There can be more than one occupier of the same premises, as Wheat v
E Lacon & Co Ltd illustrates. Both the defendants (the brewery company)
and Mr and Mrs Richardson were held to be occupiers of the relevant part
of the premises where the accident occurred.
4. According to Lord Denning, an independent contractor, whilst working on
another person’s premises, could constitute an occupier (along with the
owner of the premises), having the required degree of control over the
area where it is working.
To summarise, therefore, the definition of an ‘occupier’ is widely interpreted,

and the test which the courts will apply is one of occupational control. However,
the control need not be exclusive - there may be more than one occupier of
the same premises, eg contractors undertaking a large building development
would be occupiers for the duration of the building work. Whether a contractor,
like a decorator painting a house, would have sufficient control to constitute
an ‘occupier’, would be a question of degree.
We are now going to see to whom an occupier owes a duty under the 1957 Act.
2.3 Who is a ‘Visitor’?
The 1957 Act imposes a duty on occupiers towards their ‘visitors’. You will look
at the definition of a ‘visitor’ in the next activity.
(allow 10 minutes) ACTIVITY 4 Definition of ‘Visitors’
Please read s 1(2), s 1(4), s 2(6) and s 5(1) of the 1957 Act.
Make a list of at least three types of person who would fall within the meaning
of ‘visitor’ as set out in these provisions of the 1957 Act.
COMMENT
You may have thought of the following types of person:
▪ A guest you invite to dinner.
▪ A painter and decorator who enters your house to do a job.
▪ A theatre goer.
▪ A fireman who enters your house to put out a fire.
Under the 1957 Act, visitors are those persons who have express or implied
permission to be on the occupier’s land. For the avoidance of doubt, the 1957
Act makes it clear that this includes persons who enter under the terms of a
contract and persons who enter in order to exercise any right conferred by law.
We have seen that ‘visitors’ for the purposes of the 1957 Act are essentially
those who enter another person’s premises with that person’s express or
implied permission.
A visitor who exceeds his express or implied permission becomes a trespasser
and will potentially fall under the Occupiers’ Liability Act 1984, which deals
with entrants who do not have permission. You will consider this in the next
activity.
(allow 5 minutes) ACTIVITY 5 Classification of Entrant
Using the information from para 2.3 and Activity 4 above, complete the chart
below by ticking the appropriate box to indicate, in each case, whether the
entrant would be a visitor for the purposes of the 1957 Act or a trespasser.
Make a note of your reasons.
Situation Visitor Trespasser

1. Guests who are invited to
dinner by a friend.
2. A sales representative who
walks up the front drive to a
house, ignoring a large sign
at the gate which states: ‘No
canvassers or salespeople
please.’
3. A hotel guest who enters a door
marked ‘Staff Only’.
4. A policeman who enters
premises to conduct a search.
He has a valid search warrant.
5. A customer in a shop who goes
behind the counter to steal
from the till.
6. A teenager who has managed
to see a film at a cinema
without paying.
COMMENT
1. Guests who are invited to √
dinner by a friend.
2. A sales representative who √

walks up the front drive to a
house, ignoring a large sign
at the gate which states: ‘No
canvassers or salespeople
please.’
3. A hotel guest who enters a door √
marked ‘Staff Only’.
4. A policeman who enters √

premises to conduct a search.
He has a valid search warrant.

5. A customer in a shop who goes √
behind the counter to steal
from the till.
6. A teenager who has managed √
to see a film at a cinema
without paying.
1. The dinner guests are lawful visitors because they have the occupier’s
express permission to be on the premises.
2. A person who enters to communicate with the occupier normally has
the occupier’s implied permission to enter. However, the occupier here
has revoked permission by displaying the sign at the gate. The sales
representative is, therefore, a trespasser.
3. The hotel guest has exceeded the occupier’s permission by entering a part
of the premises where he is expressly forbidden to go. The hotel guest is,
therefore, a trespasser when entering the door.
4. The policeman falls within s 2(6) of the 1957 Act. He enters in the exercise
of a right conferred by law.
5. In going behind the counter, the customer has exceeded the occupier’s
permission. The occupier’s permission extends neither to this part of the
shop nor to this purpose.
6. The teenager is a trespasser because the occupier has permitted the
teenager to be on the premises only if he has paid the entrance fee.
In some of these cases (eg scenario 5) the entrant would start as a visitor,
and therefore fall within the 1957 Act. Once he exceeded his permission his
status would change. If loss or injury resulted, any claim would then need to
be brought under the 1984 Act.
The duty imposed by the 1957 Act is, as we have seen, imposed on the occupier
of premises. We now move on to consider the definition of ‘premises’ for the
purposes of the 1957 Act.
2.4 Premises
In the next activity you will look at the definition of ‘premises’.

ACTIVITY 6 Definition of ‘Premises’ for Purposes of the 1957 Act (allow 5 minutes)
Please read the definition of ‘premises’ in s 1(3)(a) of the 1957 Act and make
a note of what it covers.
COMMENT
The definition of premises is very wide. It includes open land as well as fixed
or moveable structures. It also specifically includes vessels, vehicles or aircraft.
We now move on to consider what the duty under the 1957 Act requires of
an occupier in relation to the premises he occupies.
2.5 The Common Duty of Care
The duty owed by an occupier to visitors under the Occupiers’ Liability Act
1957 is called the ‘common duty of care’.
You will consider the nature of this duty in the next activity.
ACTIVITY 7 Nature of the Common Duty of Care (allow 5 minutes)
Please re-read s 2(2) of the 1957 Act and make a note of what obligation it
imposes on an occupier.
COMMENT
Under s 2(2) the duty is to take such care as is reasonable in all the circumstances
to see that the visitor is reasonably safe in using the premises for the purpose
for which he is permitted to be there. You should note that the duty is directed
towards the visitor’s reasonable safety rather than towards the safety of the
premises.
2.6 Breach of the Common Duty of Care
We have seen in para 2.5 above that the occupier owes the visitor the ‘common
duty of care’.
Under s 2(2) of the 1957 Act (which you read for Activity 7 above), you have
seen that the common duty of care is to take such care as is ‘reasonable’. This
means that the standard of care expected of an occupier is the same as that in
an ordinary claim in Negligence, ie an occupier must reach the standard of the
reasonable occupier and will, therefore, be in breach of duty if he has failed
to reach this standard. Section 2(2) goes on to say that all the circumstances
of the case must be considered in deciding what ‘reasonable care’ is. The next
activity will give you an opportunity to consider what factors the court may
take into account in assessing the appropriate standard of care.
(allow 5 minutes) ACTIVITY 8 Standard of Care: Relevant Factors
Can you list at least three factors which you think would be relevant in assessing
the appropriate level of care required by the occupier of premises? (If you are
finding this difficult, look back at Unit 2: Sub-unit 1.)
COMMENT
Given the similarity with a claim in Negligence, a court will take into account
similar factors when assessing the standard of care expected of the ‘reasonable
occupier’. These factors include:
▪ nature of the danger
▪ purpose of visit
▪ seriousness of injury risked
▪ magnitude of risk
▪ cost and practicability of steps required to avoid the danger
▪ how long the danger had been on the premises
▪ any warning of the danger
▪ type of visitor.
The last factor in the list brings us on to s 2(3) of the 1957 Act. By s 2(3) the
type/nature of the visitor is specifically mentioned as a factor which is relevant
in determining the standard of care expected of an occupier. In addition, s 2(3)
singles out two types of visitor for ‘special’ treatment. You will consider this
in the next activity.
ACTIVITY 9 Breach of Duty and ‘Special’ Visitors
This activity is split into two parts. In Part 1 you will consider s 2(3)(a) of the
1957 Act, and in Part 2 you will consider s 2(3)(b) and its application in a
relevant case.
The 1957 Act singles out two categories of visitor: one as requiring a greater
degree of care on the part of the occupier, the other requiring a potentially
lower degree of care. Can you think which class of visitor might fall into the
first category? Please read s 2(3)(a) of the 1957 Act and see if you were right.
COMMENT
Child visitors are singled out as requiring a higher degree of care from the
occupier than other visitors (s 2(3)(a)). They cannot be expected to appreciate
dangers which would be obvious to an adult. (This is, of course, also true in
Negligence claims. We saw in Unit 2: Sub-unit 1 that the greater the risk of
injury, the greater the degree of care required of the defendant.)
Please read s 2(3)(b) of the 1957 Act and then, using the Internet, find Roles
v Nathan [1963] 2 All ER 908. Read Lord Denning’s judgment.
Now answer the following questions:
1. What is the other category of special visitor singled out by the 1957 Act?
2. How is the occupier’s duty modified by s 2(3)(b) in the case of such
visitors?
3. In Roles v Nathan, what were the reasons given by Lord Denning for
deciding against the deceased chimney sweeps?
4. Would Lord Denning have decided differently if the deaths had been
caused by, for example, a defective gable from the defendant’s house
falling on the chimney sweeps as they stood at the front door?
COMMENT
1. The other category of special visitor singled out by the 1957 Act is visitors
coming onto the premises to exercise their skills (s 2(3)(b)).
2. As Lord Denning said: ‘The householder can reasonably expect the sweep
to take care of himself so far as any dangers from the flues are concerned ...
When a householder calls in a specialist to deal with a defective installation
on his premises, he can reasonably expect the specialist to appreciate and
guard against the dangers arising from the defect.’ Accordingly, the effect
of s 2(3)(b) is that in the case of skilled visitors, an occupier can reasonably
expect them to appreciate and guard against any risks which are part and
parcel of their job. This has the effect of lowering the standard of care
expected of the occupier in relation to such visitors.
3. Lord Denning had two reasons for deciding against the deceased chimney
sweeps in Roles v Nathan:
▪ The danger which caused their deaths was one which was incidental to
the job and which they should, therefore, have appreciated and guarded
against.
▪ They had been adequately warned of the danger by the defendant’s

agent. We will consider this point later in this Sub-unit at 2.6.3.
4. The risk of being hit by a defective gable is not a special risk incidental to
the trade of a chimney sweep. If this had caused the deaths, Lord Denning
would have found against the occupier.
We are now going to consider these two special categories of visitor in a little
more detail.
2.6.1 Children
We saw in the last activity that an occupier must be prepared for children to
be less careful than adults (s 2(3)(a) of the 1957 Act). In addition to s 2(3)(a),
in some situations involving children there are other specific considerations
which may be relevant in assessing the standard of care. You will consider this
in the next two activities.
(allow 10 minutes) ACTIVITY 10 Child Visitors and Allurements
Using the Internet, please read the headnote from Glasgow Corporation v
Taylor [1922] 1 AC 44. (Do not concern yourself with the fact that the case
was decided under the old common law. The issues are still the same today.)
Please answer the following questions:
1. What was the crucial feature of the danger in this case?
2. What should the defendant have done to avoid liability?
3. How would the court have viewed a similar claim by an adult?
COMMENT
1. The poisonous berries represented a concealed danger to a 7-year-old.
(Lord Atkinson observed: ‘... something in the nature of a trap. The berries
looked alluring and as harmless as grapes or cherries. ... a concealed or
disguised danger.’) Because the shrub was a temptation (‘allurement’) to
such a young child, the occupier should have taken additional precautions.
2. The defendant should have adequately warned of the danger, or fenced
off the shrub.
3. The standard of care would have been lower as regards an adult, who
would be expected to be aware of the dangers posed by red berries from
an unidentified shrub. As a result, the occupier might not have been in
breach of duty as regards an adult.
Where the danger is an allurement, an occupier must therefore do even more

to safeguard a child’s safety than where it is not. This has the effect of further
increasing the standard of care.
In the case of very young children, even the most innocuous objects can
represent a potential danger. You will consider what the law expects of an
occupier in such circumstances in the next activity.
ACTIVITY 11 Responsibility for the Safety of Very Young Children (allow 5 minutes)
Consider the following scenario:

Adam (aged 3) and his sister Eve (aged 7) walk across some open land which
is being developed by the local council as a housing estate. The council has
dug a trench 2 feet 6 inches wide and 8 feet deep. Eve walks round the trench
safely, but Adam falls in it and breaks his leg. Suppose that a claim is brought
on Adam’s behalf against the council under the 1957 Act. Can you think of any
argument(s) which the council might advance to escape liability?
COMMENT
This activity is based on the facts of Phipps v Rochester Corporation [1955] 1
QB 450. As you can see, the case was decided before the 1957 Act came into
force, but what was said in the case is still valid law today.
The arguments you might have thought of advancing on behalf of the council
could have included the following:
▪ As he did not have permission, Adam is a trespasser and falls outside the
1957 Act. Whether this argument will succeed against Adam will depend
to a large extent on whether the council knows that members of the
public use the site as a short-cut and, if so, whether it has done anything
to deter them. In Phipps, the defendant knew the site was used as a
short-cut, but had done nothing to prevent this. Therefore the claimant
was held to have implied permission to be there.
▪ Due to the boy’s age he should not have been allowed to wander to such
a location, even if in the company of his sister. As a result his parents
should be responsible.
This was the crucial issue in Phipps v Rochester Corporation. On the facts
it was held that a prudent parent would not have allowed two small
children to go alone to the building site. The defendant corporation
was entitled to assume that parents would not behave in this way
and, therefore, the corporation escaped liability as it had reached the
standard to be expected of a reasonable occupier in all the circumstances
(ie the premises would have been reasonably safe for a very young child
accompanied by an adult).
The principle laid down in the Phipps case is important. Occupiers will have
complied with their duty to a very young child visitor if they make their
premises reasonably safe for a child who is accompanied by the sort of
guardian by whom the occupier is entitled, in all the circumstances, to expect
the child to be accompanied. However, you should note the recent Court of
Appeal decision in Bourne Leisure Ltd v Marsden [2009] EWCA Civ 671. There,
a 2½-year-old boy drowned in a pond situated within the boundaries of a
holiday park where he was staying with his parents. The pond was surrounded
by a 2-foot fence over which the boy had climbed. His parents argued that,
given the attraction of such a pond to young children, the owners of the park
should have done more to warn the parents of the danger of the pond. The
Court of Appeal, deciding in favour of the holiday park, held that as the pond
was an obvious feature of the park and the danger it presented to small,
unaccompanied children was equally obvious, the park had not breached the
common duty of care imposed by the 1957 Act.
2.6.2 Skilled visitors

We have seen that, in the case of skilled visitors, the occupier’s duty is modified
slightly by s 2(3)(b) of the 1957 Act, in that the occupier is entitled to expect
such a visitor to appreciate and guard against any special risks which are part
of the visitor’s job.
You will check your understanding of this in the next activity.
ACTIVITY 12 Skilled Visitors (allow 5 minutes)
Please re-read s 2(3)(b) of the 1957 Act. Make a note of the type of risks
which are mentioned in it. Then consider the two situations in the chart below,
putting a tick in the appropriate column and making a note of your reasons.
Situation Section 2(3)(b)

Applicable Inapplicable
1. Woyjeck, a window cleaner, is
injured in a fall whilst cleaning
the outside of Harriet’s
windows. A window handle,
which he is using to support
himself, is loose and comes off
in his hand.
2. Woyjeck is injured on a
defective stair when going
upstairs in Harriet’s house to
clean the inside of her windows.
COMMENT
Situation Section 2(3)(b)
Applicable Inapplicable
1. Woyjeck, a window cleaner, is √
injured in a fall whilst cleaning
the outside of Harriet’s
windows. A window handle,
which he is using to support
himself, is loose and comes off
in his hand.
2. Woyjeck is injured on a √
defective stair when going
upstairs in Harriet’s house to
clean the inside of her windows.
Section 2(3)(b) is relevant only in situation 1. The risk of such a fall was a
special risk ordinarily incidental to the work of a window cleaner. Harriet could,
therefore, reasonably expect Woyjeck to appreciate and guard against such
a danger. In situation 2, on the other hand, the relevant risk is not one that is
ordinarily incidental to the job of a window cleaner and, therefore, s 2(3)(b)
does not apply.
2.6.3 Escaping breach by warnings

When you read the case of Roles v Nathan in Activity 9, you saw that one
of the reasons Lord Denning decided in favour of the occupier was that the
chimney sweeps had been adequately warned by the occupier’s agent of the
relevant danger. An adequate warning will, as in Roles v Nathan, mean that the
occupier has complied with his common duty of care. The occupier will not,
therefore, be in breach of duty. However, to have this effect, the warning must
be ‘adequate’. We consider what is meant by ‘adequate’ in the next activity.
ACTIVITY 13 Warnings
This activity is divided into three parts. In Part 1, you are required to carefully
read s 2(4)(a) of the 1957 Act (which deals with warnings) and work out its
precise scope. In Part 2 you will consider what factors might be relevant in
applying the provision. In Part 3 you will apply the statutory provision to a
number of situations.
Please read s 2(4)(a) of the 1957 Act. Will a warning of the relevant danger
given by an occupier (or the occupier’s agent) always absolve an occupier from
liability to an injured visitor?
COMMENT
The mere fact that a warning was given will not necessarily suffice to enable
the occupier to escape liability. The crucial issue is whether the warning given
by the occupier was sufficient to enable the visitor to be reasonably safe. This
will be a question of fact.
How do you think a court will decide whether a warning given was adequate? Can
you think of any factors which will be relevant when a court decides this issue?
COMMENT
The following will be the most important factors for a court to consider in
deciding the adequacy or otherwise of a warning:
▪ The nature of the warning, ie how specific it was. Did it actually mention
by name the relevant danger, or was it just a general warning? For
example, compare ‘Danger - Slippery Floor’ with ‘Danger’. The former
type of warning is more likely to be adequate than the latter.
▪ The nature of the danger, ie whether it was a hidden or an obvious

danger. If a hidden danger, the warning will need to be more specific. A
general warning (eg ‘Danger’) is unlikely to be adequate in such a case.
▪ The type of visitor, ie whether the injured visitor is an adult or a child.
A written warning to a child may not be enough to enable him or her to
be reasonably safe.
Countess Alice owns an old stately home which she opens to the public during
the summer months. Please consider the factual situations listed in the chart
below and tick the appropriate column, depending on whether or not you
think the Countess has adequately warned each injured visitor of the relevant
danger. Make a note of your reasons.
Situation Warning
Adequate Inadequate
1. The steps leading down to
the dungeons are steep and
slippery, and there is no
handrail. A warning notice is
displayed at the top of the
steps stating ‘Danger’. Bill, an
American tourist, slips on a step
and is injured when he falls.
2. Boris, a Russian tourist, is
injured in the armoury room
when he touches a display of
armour and it falls on him. A
notice by the display reads ‘Do
not touch’.
3. Doris visits the ladies’ toilets and
is scalded by the water from the
hot tap when washing her hands.
There is a sign on each washbasin
clearly stating ‘DANGER VERY
HOT WATER’. Although Doris
noticed the sign, she could
not be bothered to put on her
reading glasses, and therefore
could not read what it said.
COMMENT
Situation Warning
Adequate Inadequate
1. The steps leading down to √
the dungeons are steep and
slippery, and there is no
handrail. A warning notice is
displayed at the top of the
steps stating ‘Danger’. Bill, an
American tourist, slips on a step
and is injured when he falls.
2. Boris, a Russian tourist, is √
injured in the armoury room
when he touches a display of
armour and it falls on him. A
notice by the display reads ‘Do
not touch’.
3. Doris visits the ladies’ toilets and √
is scalded by the water from the
hot tap when washing her hands.
There is a sign on each washbasin
clearly stating ‘DANGER VERY
HOT WATER’. Although Doris
noticed the sign, she could
not be bothered to put on her
reading glasses, and therefore
could not read what it said.
1. The warning should have been more specific as to the nature of the
danger. Given the lack of any handrail, it was not sufficient to enable Bill
to be reasonably safe. (Even if the warning had mentioned the particular
danger, it probably would not have enabled Bill to be reasonably safe due
to the absence of the handrail in any event.)
2. The notice does not expressly warn of any danger. It is simply an instruction
to visitors. Even if the notice had contained a warning, could Boris read
English? If not then, without a translation, the notice would not allow
Boris to be reasonably safe, no matter how clearly expressed in English.
3. The warning would appear to be adequate. Doris, having seen the sign,
should have put on her glasses to read what it said. Had she done so, she
would have been safe. The warning was, therefore, sufficient to enable
her to be reasonably safe.
We have seen, therefore, that an adequate warning of a danger will enable

an occupier to escape liability to a visitor injured by the danger. However, an
occupier need not warn of every danger - for example, there is no obligation
to warn of a danger which would be obvious to the particular visitor (eg the
danger of drowning in a pond would be obvious to an adult visitor).
Before we leave the topic of warnings, we must distinguish between a warning
notice on the one hand, and a notice which purports to restrict or exclude
an occupier’s liability on the other. In the next activity you will have the
opportunity to draw this distinction.
ACTIVITY 14 Distinction between Warnings and Exclusion Notices (allow 5 minutes)
Consider the two notices below. They both relate to refurbishment work
which is taking place in a hotel. Which is the warning notice and which is the
exclusion notice?
1. ‘The management accepts no liability for any injury or loss sustained by
a visitor as a result of the current refurbishment of the hotel lobby.’
2. ‘Notice to all visitors. The lobby of the hotel is currently being refurbished.
We request you to take extra care when crossing the lobby as the floor
may be rough and uneven.’
COMMENT
The first notice is an exclusion notice; the second a warning notice. The
significance of this distinction is that, as we have seen, an occupier may comply
with his common duty to a visitor by a warning notice (under s 2(4)(a) of the
1957 Act). In such a case the visitor will be unable to prove breach of duty. In
contrast, an exclusion notice may operate as a potential defence to a claim
once the visitor has established breach of the common duty of care. We will
look at exclusion notices later in this Sub-unit.
2.6.4 Independent contractors

Often an occupier may engage an independent contractor (such as an
electrician) to carry out work on the occupier’s premises. In such cases,
provided the occupier satisfies the three provisos to be found in s 2(4)(b) of
the 1957 Act, the occupier will have discharged his common duty of care. If
injury then results from the faulty workmanship of the contractor, the occupier
is not liable (instead the visitor must look to the contractor for recompense).
You will consider the application of s 2(4)(b) in the next activity.
(allow 5 minutes) ACTIVITY 15 Occupiers’ Liability for Independent Contractors
Please read s 2(4)(b) of the 1957 Act) and then answer the following questions,
making a note of your answers.
1. Does the section apply to all types of work done by an independent
contractor?
2. How often do you think a court will find an occupier has acted
unreasonably in entrusting work to an independent contractor?
3. What practical steps do you think occupiers can reasonably take to
satisfy themselves that their contractors are competent?
COMMENT
1. Section 2(4)(b)) applies only to ‘work of construction, maintenance or
repair’.
2. It will be rare for a court to find that an occupier has acted unreasonably
in employing an independent contractor. In a modern society there are
very few tasks that you would expect an occupier to have to carry out
personally. The more technical the work, the more reasonable it will be to
employ an independent contractor.
3. An occupier can obtain references and make enquiries locally and of Trade
Associations to ascertain the contractor’s competence.
We have seen so far that under s 2(4)(b) it must be reasonable for the
occupier to engage the contractor to do the task and that the occupier must
take steps to satisfy himself that the contractor he chooses is
competent. The other requirement in s 2(4)(b) is that the occupier must
have taken reasonable care to check that the contractor’s work was done
properly. You will look at this requirement in the next activity.
(allow 5 minutes) ACTIVITY 16 Checking the Work of an Independent Contractor
Please consider the two scenarios below. (They are based on the cases of
Haseldine v Daw & Son Ltd [1941] 3 All ER 156 and Woodward v The Mayor
of Hastings [1945] KB 174 respectively.) The occupier was found liable in only
one of them. Using your knowledge of s 2(4)(b) of the 1957 Act, identify which
one and make a note of your reason(s).
1. The landlord of a block of flats engages a highly reputable firm of
hydraulic engineers to maintain the lifts. A visitor is injured when a lift
malfunctions due to the contractor’s negligent maintenance.
2. A child at a school slips on a step which a cleaner has negligently left in
an icy condition.
COMMENT
Under s 2(4)(b), an occupier is only expected to make such checks as are
reasonable in all the circumstances of the case. Since no specialist knowledge is
required to recognise that an icy step is dangerous, the occupier in the second
scenario, by not checking the contractor’s work, has not discharged his duty of
care and so would be liable (Woodward v Mayor of Hastings). In contrast, in
the first scenario the servicing of a lift is work of a technical nature which an
occupier could not reasonably check himself. Accordingly, the occupier would
discharge his duty by entrusting the work to the contractor without the need
to check the work for himself (Haseldine v Daw).
To summarise, therefore, on the position of an occupier who employs an

independent contractor, the key question, which is encapsulated in s 2(4)(b),
is whether the occupier has done all that reasonable care requires of him. If
he has then he will not be in breach of duty.
2.7 Causation and Remoteness of Damage
Having considered the issue of duty of care and breach of duty, you should
recall from Unit 2: Sub-unit 2 that the issues of causation (including intervening
acts) and remoteness apply to all torts, and a claim under the 1957 Act is no
exception. You should remind yourself of the rules in these areas by referring
back to Unit 2: Sub-unit 2. As regards remoteness, the House of Lords
confirmed in Jolley v Sutton London Borough Council [2000] 3 All ER 409 that
the test here is the same as for common law Negligence.
Having considered the essential points regarding liability, we will now turn to
look at a claim under the Occupiers’ Liability Act 1957 from the defendant’s
(occupier’s) perspective. Are any defences available?
2.8 Defences
There are a few arguable defences open to an occupier who has breached his
common duty of care.
2.8.1 Voluntary assumption of risk (volenti non fit injuria/consent)

You will consider the scope of this defence in the next activity.
ACTIVITY 17 Voluntary Assumption of Risk (Volenti) (allow 10 minutes)
Please read s 2(5) of the 1957 Act (which preserves the common law defence
of volenti) and then attempt to answer the following questions:
1. How will a court decide whether the defence should succeed?
2. Consider the wording of the following notice displayed by an occupier

at the entrance to its premises:
‘ALL VISITORS ENTER AT THEIR OWN RISK.’
Will it be sufficient to enable the occupier successfully to rely on s 2(5)?
Make a note of your reasons.
COMMENT
1. A court will apply exactly the same principles as for volenti in deciding
whether s 2(5) should succeed. The claimant must therefore know of the
precise risk that causes the injury and show by his conduct that he willingly
accepts the legal risk.
2. The wording of the notice is not specific enough to enable the occupier to
rely on s 2(5). It does not make visitors aware of the precise nature of any
risk before they encounter it.
2.8.2 Exclusion of liability

We have already seen that occupiers may discharge the common duty of care
owed to their visitors by adequately warning of the relevant danger on their
premises. What we are considering here, however, is the case of an occupier
who has not discharged the duty (ie who has breached the common duty of
care) and who is seeking to rely on an exclusion clause or notice to escape
liability (as s 2(1) of the 1957 Act permits an occupier to do).
In the next activity you will consider the case of White v Blackmore [1972] 3 All
ER 158, where the Court of Appeal had to consider the effectiveness of both
a warning and an exclusion notice.
(allow 20 minutes) ACTIVITY 18 Exclusion of Liability
Using the Internet, please find the case of White v Blackmore [1972] 3 All
ER 158. Read the facts of the case as set out in Lord Denning’s judgment
(as Lord Denning dissented in the case you need not read any further in his
judgment) and then the judgment of Buckley LJ. Please then answer the
following questions:
1. Why was the defendant unable to escape liability by showing that he
had discharged his common duty of care by use of warning notices?
2. Why did Buckley LJ reject the defence of consent?
3. Why did the claim on the deceased’s behalf fail in this case?
COMMENT
1. The defendant was unable to escape liability by relying on the warning
notices because they did not enable the visitor to be reasonably safe. They
were, therefore, not adequate under s 2(4)(a) of the 1957 Act.
2. Buckley LJ rejected the defence of consent because the deceased was not
aware of the problems with the ropes and therefore could not consent to
the risk of injury through the defendant’s negligence merely by standing
in front of a safety rope to watch a race.
3. The claim on the deceased’s behalf failed because the defendant had taken
reasonable steps to draw the deceased’s attention to a clear exclusion
notice and so the defendant had successfully excluded liability to him (as
envisaged by s 2(1) of the 1957 Act). This case confirms that at common
law a clearly worded notice that covers the liability in question will be valid
if reasonable steps have been taken to bring it to the visitors’ attention.
The case of White v Blackmore preceded the Unfair Contract Terms Act 1977
(UCTA) and the Consumer Rights Act (CRA) 2015, so the Court of Appeal did
not have to consider whether UCTA or the CRA 2015 affected the validity of the
exclusion notices. As you will have appreciated from studying Unit 2: Sub-unit
3, UCTA controls attempts by business occupiers to exclude or restrict their
liability for negligence to non-consumers (ie other businesses). The definition
of ‘negligence’ for the purposes of s 2 of UCTA includes a breach of the common
duty of care imposed by the 1957 Act. Private occupiers, however, are not
subject to the provisions of UCTA or the CRA 2015. The CRA 2015 controls
attempts by traders to exclude or restrict liability for negligence (defined under
s 65(4) of the CRA 2015 to include the common duty of care under the 1957
Act) to consumers. Consumers are defined under the CRA 2015 as individuals
acting for purposes that are wholly or mainly outside the individual’s trade,
business, craft or profession.
Section 2(1) of the 1957 Act must, therefore, now be read subject to the
provisions of UCTA and the CRA 2015 where business occupiers or traders
are concerned. You will remind yourself of the impact of s 2 of UCTA in the
next activity.
ACTIVITY 19 Effect of s 2 of UCTA
This activity is in two parts. In Part 1 you will remind yourself about s 2 of UCTA.
In Part 2 you will then apply s 2 of UCTA in the context of occupiers’ liability.
Look back at Unit 2: Sub-unit 3. Make a note of the impact that s 2 of UCTA
has on an attempt by a business to exclude liability for negligence to non-
consumers.
Now consider the situations listed in the chart below. They all take place at a
conference centre. Please put a tick in the appropriate box to indicate whether
or not liability can be successfully excluded in each case. Make a note of your
reasons.
Situation Exclusion of liability

Yes No
1. A business delegate sustains
personal injury when a defective
shutter falls on her.
2. A business delegate’s car is damaged in
the conference centre car-park when a
dangerous wall falls on to it.
3. As in 2 above, and the owner of the car is
killed when the wall collapses on the car.
4. A business delegate’s valuables are
stolen from the conference centre
safe because a conference centre
employee carelessly leaves the door to
the safe open.
COMMENT
Yes No
1. A business delegate sustains √
personal injury when a defective
shutter falls on her.
2. A business delegate’s car is damaged in √
the conference centre car-park when a
dangerous wall falls on to it.
3. As in 2 above, and the owner of the car is √ √
killed when the wall collapses on the car. (car damage) (death)

4. A business delegate’s valuables are √
stolen from the conference centre
safe because a conference centre
employee carelessly leaves the door to
the safe open.
Any exclusion of liability as regards situations 1 and 3 is subject to s 2(1) of UCTA,

given that the conference centre is a business occupier and the claimants are
non-consumers. Under s 2(1), any attempt to exclude liability for negligence
causing death or personal injury is void. Consequently, the conference centre
would be unable to exclude its liability for the business delegate’s injuries in
situation 1 and the business delegate’s death in situation 3.
As regards situations 2 and 4, and in situation 3 for the damage to the car, an
occupier can exclude liability under s 2(2) of UCTA for other loss, provided it is
reasonable, in all the circumstances, for the occupier to rely on the exclusion
term/notice. In considering the issue of reasonableness the court would have
regard to the factors, such as bargaining power and the practical consequences
for the parties, as set out in Smith v Eric S Bush, which you studied in Unit 2:
Sub-unit 3 (Activity 7).
To conclude on the issue of exclusion, business occupiers will be subject to

the control of s 2(1) of UCTA and will be unable to exclude their liability for a
non-consumer visitor’s death or personal injury. They may, however, be able,
under s 2(2) of UCTA, to exclude liability for damage to a visitor’s property if
a court considered it was fair and reasonable to allow them to do so. Traders
will be subject to the controls of s 65 of the CRA 2015 and will be unable to
exclude liability for a consumer visitor’s death or personal injury. They may
exclude liability for damage to a consumer visitor’s property if they can satisfy
the fairness test under s 62 of the CRA 2015.
Private occupiers, on the other hand, are not subject to the control of UCTA
or the CRA 2015. Ordinary householders can, therefore, display a prominent
notice at the entrance to their property excluding their liability to visitors.
2.8.3 Contributory negligence

Where visitors suffer loss due partly to an occupier’s breach of the common
duty of care and partly due to their own carelessness, their damages will
be reduced for contributory negligence. The normal principles of this partial
defence will apply (see Unit 2: Sub-unit 2).
3. LIABILITY OF OCCUPIERS TO TRESPASSERS
3.1 Introduction
We have seen that the common duty of care owed by an occupier under the
Occupiers’ Liability Act 1957 is owed only to ‘visitors’, a term which excludes
trespassers. The law relating to trespassers is to be found in the Occupiers’
Liability Act 1984.
3.2 Who is a Trespasser?
Lord Dunedin (in the case of Robert Addie & Sons (Colliery) Ltd v Dumbreck [1929]
AC 358) defined a trespasser as ‘one who goes upon land without invitation of
any sort and whose presence is either unknown to the proprietor, or, if known,
is practically objected to’. Although this case pre-dates the Occupiers’ Liability
Act 1984, it remains useful in understanding what ‘trespasser’ means.
3.3 The Occupiers’ Liability Act 1984
The Occupier’s Liability Act 1984, where it applies, replaces the previous
common law duty owed by an occupier to trespassers which was very limited.
This common law duty remains valid for any claims by trespassers which fall
outside the scope of the 1984 Act. You do not need to know the pre-1984
common law position, however, for the purposes of this course.
The duty laid down by the 1984 Act is, as with the 1957 Act, imposed on an
‘occupier’ of ‘premises’, and both these terms have the same meaning as for
the 1957 Act (see paras 2.2 and 2.4 above).
3.3.1 To whom is the duty owed?

In the next activity you will read s 1(1)(a) of the Occupiers’ Liability Act 1984,
which states to whom the duty under the Act is owed.
(allow 5 minutes) ACTIVITY 20 Who is Owed the Duty under the 1984 Act?
Please read s 1(1)(a) of the 1984 Act. To whom is the duty owed?
COMMENT
The duty under the 1984 Act is owed to people other than visitors.
You should remember that we saw, when considering the 1957 Act, that a
visitor is someone who has the occupier’s express or implied permission to
be on the premises. The 1984 Act therefore applies to persons who do not
have such permission, ie trespassers. As being a trespasser is determined by
whether the entrant does in fact have express or implied permission, it does
not matter that the entrant is unaware that he is trespassing. For example, X
is out for a walk in the country. He inadvertently strays onto land belonging
to Y. X is a trespasser as he does not have Y’s permission to be on Y’s land. It
is irrelevant that X may believe he is still on a public path.
You should also remember from your study of the 1957 Act that an entrant can
initially enter premises as a ‘visitor’ but then become a ‘trespasser’, either by
going onto part of premises to where his permission does not extend, or by
doing something outside the scope of his permission (see Activity 5 above).
In addition to trespassers, the 1984 Act covers three other types of entrants.
You should be aware of who these other entrants are, but you are not expected
to know any further detail for the purposes of this course:
▪ People entering under an access agreement or order under the National
Parks and Access to the Countryside Act 1949 (s 1(4)(b) of the 1957 Act).
▪ People who enter land pursuant to the Countryside and Rights of Way
Act 2000 (s 1(4)(a) of the 1957 Act) (the duty owed to this category of
person is limited by the 1984 Act).
▪ People who exercise private rights of way over land.
You should note that by s 1(7) of the 1984 Act a person using a public right
of way (a highway) is excluded from protection under the Act. Such persons
are not within the definition of a visitor for the purposes of the 1957 Act
either, and therefore are outside the statutory framework of occupiers’ liability
altogether. Some highways are, however, maintained at public expense. Users
of such highways are protected by a duty of care imposed by the Highways
Act 1980.
Trespassers are clearly the most significant of these categories, and therefore
the remainder of this section will use the term ‘trespasser’ when referring to
the person to whom the duty is owed under the 1984 Act.
3.3.2 Existence of the duty

In contrast to the 1957 Act, the duty owed by an occupier to a trespasser does
not arise automatically but is subject to certain conditions. You will consider
what these conditions are in the next activity.
ACTIVITY 21 Existence of the Duty under the 1984 Act
This activity is divided into two parts. In Part 1 you will read s 1(3) of the 1984
Act and note its requirements. In Part 2 you will study two Court of Appeal
cases in which the requirements of s 1(3) were considered.
Please read s 1(3) of the 1984 Act. Make a note of the three conditions which
it lays down.
Using the Internet, please find the cases of Donoghue v Folkestone Properties
Ltd [2003] 3 All ER 1101 and Rhind v Astbury Water Park [2004] EWCA Civ 756.
Read the headnote or abstract of each case and make a brief note of the facts
and decision. Please then answer the following questions:
1. Were the claimants in these two cases lawful visitors or trespassers at
the time of their injuries?
2. What was the principal reason in each case why the claimant’s claim failed?
COMMENT
1. Both claimants were trespassers at the time of their injuries. Note that in
Rhind the claimant was originally a visitor but exceeded the scope of the
permission he had by diving into the lake. In both cases, therefore, the
claims were brought under the 1984 Act.
2. In Donoghue the claimant failed to satisfy the condition in s 1(3)(b). At the
time of year (winter) and time of day (night) in question the occupier did
not have reasonable grounds to believe a trespasser would be swimming
off Folkestone harbour.
In Rhind the claimant failed to satisfy s 1(3)(a) as the occupier did not have
reasonable grounds to believe that there was any obstruction in the lake.
These cases show that the words in s 1(3)(a) and (b) ‘has reasonable grounds
to believe’ require actual knowledge of facts which would lead a reasonable
occupier to be aware of the danger or presence of the trespasser.
We have now considered the meaning of s 1(3)(a) and (b).

Section 1(3)(c) requires the court to consider whether the risk was such that
the occupier might reasonably be expected to offer some protection to the
trespasser. This requires the court to examine all the circumstances of the
case. We look at this in the next activity.
ACTIVITY 22 Relevant Factors for the Purposes of s 1(3)(c) of the 1984 Act (allow 5 minutes)
Imagine you are the occupier of some land on which you know there is a
danger. You also know that trespassers sometimes cross your land close to
the danger.
What further information do you think a court would need before being in
a position to judge whether you can reasonably be expected to offer the
trespassers protection against the danger?
COMMENT
The court will look at all the circumstances of the case in assessing whether
it is reasonable to expect the occupier to have offered the trespasser some
protection under s 1(3)(c). The following information will be particularly
important:
▪ The nature and extent of the risk. This will largely depend on what the
danger is, ie is it an obvious or a hidden danger? Could the trespassers
be killed or seriously injured by it, or do they just risk minor injury? The
more serious the risk, the more likely it will be that the court will consider
some protection ‘reasonable’ under s 1(3)(c).
▪ The type of trespasser. Are the trespassers adults or children? Are the
trespassers deliberate (ie they know they have no permission to be on
land) or inadvertent? Section 1(3)(c) is more likely to be satisfied in the
case of a child or an inadvertent trespasser.
▪ The cost and practicality of precautions (ie how difficult would it be to
remove the danger or at least reduce the risk from it). If the cost is low,
this would also point to it being ‘reasonable’ for the occupiers to offer
some protection.
3.3.3 Scope of the 1984 Act duty

We have seen, therefore, that s 1(3) contains three conditions, all of which
must be satisfied before the occupier owes a duty to the trespasser.
In addition to the three conditions in s 1(3), there are two other issues that
limit the duty under the 1984 Act. You will consider these in the next activity.
ACTIVITY 23 Scope of the Duty of Care
This activity is in two parts. In Part 1 you will reconsider s 1(3) of the 1984 Act
and read a House of Lords decision interpreting its scope. In Part 2 you will
read s 1(4) and (8) of the 1984 Act which further limit the duty of care.
Please re-read s 1(3) and, using the Internet, read the headnote from the
House of Lords decision in Tomlinson v Congleton Borough Council [2003] 3 All
ER 1122. What was the principal reason for the failure of the claimant’s claim?
COMMENT
The principal reason for the failure of the claimant’s claim was that no duty
was owed to him under the 1984 Act. The shallow nature of the lake into which
he dived was a natural and obvious feature of the premises. The only risk was
in diving in. As this arose out of the claimant’s own conduct, it could not be
attributed to the state of the premises.
This case confirms, therefore, that (like the 1957 Act) the 1984 Act is concerned
with liability due to the state of the premises. See also the Court of Appeal’s
decision in Revill v Newbery [1996] 2 WLR 239. Here the defendant fired a
shotgun towards a trespasser intending to frighten him off. The trespasser was
injured. The Court of Appeal held that the provisions of the 1984 Act were not
applicable on these facts. The trespasser was injured by an ‘activity’, not the
state of the premises, and as the 1984 Act did not regulate the ‘activity’ duty
the trespasser had to look to common law negligence for a remedy.
Please read s 1(4), (8) and (9) of the 1984 Act.

What other limit do these provisions put on the duty of care?
COMMENT
By s 1(4) and (8), the duty is owed only in respect of ‘injury’. Section 1(9)
defines injury as ‘anything resulting in death or personal injury’ (by s 1(9),
personal injury covers both physical and mental impairments). This means
that the duty under s 1(3) does not cover damage to a trespasser’s property.
3.4 Breach of Duty
If the three conditions in s 1(3) are all satisfied, the occupier owes a duty to
the trespasser under the Occupiers’ Liability Act 1984. Under s 1(4) of the 1984
Act the duty is to take such care as is reasonable. This means that, like the duty
under the 1957 Act, the occupier will not be liable unless he has fallen below
the standard of the reasonable occupier.
So, s 1(4) requires the occupier to take such care as is reasonable in all the
circumstances. The standard is that of the reasonable occupier. In the next
activity you will think about what factors may be relevant in applying s 1(4).
ACTIVITY 24 Application of s 1(4) of the 1984 Act (allow 5 minutes)
In deciding what constitutes ‘reasonable care’ for the purposes of judging

whether an occupier has breached the duty owed to a trespasser, what factors
do you think would be relevant?
COMMENT
The court will consider all the circumstances of the case, but the following
factors will be relevant:
▪ The nature of the danger (ie hidden or obvious and the degree of danger).
▪ The age of the trespasser (ie adult or child).
▪ The nature of the premises (ie how dangerous are they? A private house?
An electrified railway line?).
▪ The extent of the risk (ie is there a high or low risk of injury?).
▪ The cost and practicability of precautions (ie how easy would it be to
remove or reduce the risk and what would such measures cost?).
▪ The nature and character of the entry (eg burglar, child trespasser or
adult inadvertently trespassing).
▪ The gravity and likelihood of injury.
▪ The foreseeability of the trespasser (ie the more likely people are to
trespass, the more precautions must be taken).
You will note that some of these factors are also relevant, as we have just seen
in Activity 22, in applying s 1(3)(c) of the 1984 Act to decide whether a duty
is owed to a trespasser.
3.4.1 Warnings
Just as an occupier can discharge the common duty of care owed to lawful
visitors by adequately warning of the danger, the same is true in the context
of trespassers. This is something you will examine in the next activity.
(allow 5 minutes) ACTIVITY 25 Warnings
Please read s 1(5) of the 1984 Act. Then attempt to answer the following
questions:
1. Will a warning to a trespasser always be enough to discharge the
occupier’s duty? Can you think of any situations where it might not be
adequate?
2. Where a warning would not be adequate, what additional measures do
you think an occupier should take to discharge the duty owed to the
trespasser?
COMMENT
1. A warning will often be inadequate for children. If the warning is on a notice,
a child may be too young to read and/or fully to appreciate the danger.
2. Section 1(5) of the 1984 Act mentions discouragements as well as
warnings. Where a warning would be inadequate to protect a trespasser
from danger, an occupier should therefore put an obstacle (eg a barrier
which is too high for a child to climb) round the danger to prevent the
trespasser coming into physical contact with the danger.
3.4.2 Children
When we looked at an occupier’s liability under the 1957 Act, you will recall the
cases of Glasgow Corporation v Taylor [1922] 1 AC 44 and Phipps v Rochester
Corporation [1955] 1 QB 450 (see Activities 10 and 11). The courts have
not expressly applied these cases to trespassing children, but it is generally
considered that they are equally applicable under the 1984 Act as they are
under the 1957 Act.
3.5 Causation and Remoteness
Having determined that a duty of care exists which the occupier has breached,
you should remember then to consider the issues of causation (including
intervening acts) and remoteness. These issues are determined in the same
way as for common law Negligence.
3.6 Defences
3.6.1 Voluntary assumption of risk

The common law defence of voluntary assumption of risk is preserved for
claims under the 1984 Act by s 1(6). In the next activity you will look at a case
where this provision enabled the occupier to escape liability.
ACTIVITY 26 Acceptance of the Risk (allow 10 minutes)
Please read s 1(6) of the 1984 Act and then, using the Internet, please read
the headnote of Ratcliff v McConnell and another [1999] 1 WLR 670. Make a
note of the reason(s) why the claim failed.
COMMENT
The claim failed because the defendants were able to establish that
the claimant was aware of the risk of diving into a partly drained swimming
pool with very shallow water and willingly accepted it. They were,
therefore, able to rely on s 1(6) of the 1984 Act and consequently escaped
liability.
We are now going to move on to consider whether an occupier can successfully
exclude liability to a trespasser under the 1984 Act.
3.6.2 Exclusion of liability

The 1984 Act is silent as to whether or not liability can be excluded. This
contrasts with the 1957 Act, s 2(1) of which expressly states, as we have seen,
that liability can be excluded or restricted (see para 2.8.2).
It is therefore open to debate whether an occupier can exclude the potential
liability owed to a trespasser. As the 1984 Act does not expressly state that
the occupier can exclude liability, this could be interpreted to mean that the
occupier cannot. This interpretation is consistent with the view that Parliament
intended the 1984 Act to be a ‘safety net’ form of protection for trespassers.
Such an intention would be thwarted if occupiers could evade the obligations of
the 1984 Act by a carefully worded notice. If, however, it is possible to exclude
liability then, irrespective of whether the occupier is a private, business or
trade occupier, the provisions of UCTA or the CRA 2015 do not apply to liability
under the 1984 Act.
3.6.3 Contributory negligence

Trespassers who are injured partly due to their own carelessness and partly
due to an occupier’s breach of duty under the 1984 Act will find their damages
reduced for contributory negligence. The usual principles apply (see Unit 2:
Sub-unit 2).
3.6.4 Illegality
Although trespass is not in itself a crime, some trespassers will enter onto
land for some criminal purpose (for example to commit burglary). If such a
trespasser is injured in his attempt to commit a serious crime and the occupier
is found to have breached a duty owed under s 1(3) of the OLA 1984, will the
courts use the defence of illegality to deprive the trespasser of a remedy?
This issue was addressed in Revill v Newbery, which we looked at earlier in this
Sub-unit at 3.3.3. In this case the Court of Appeal took the view that it would
thwart Parliament’s intention, which was to provide safety net protection
to trespassers (some of whom clearly would be trespassing for a criminal
purpose), were this defence to be available in relation to liability under the
OLA 1984.
You have now studied the provisions of the 1984 Act and seen what duty (if
any) an occupier may owe to a trespasser who is injured on the occupier’s land.
The title of this Sub-unit is ‘Occupiers’ Liability’. We will, however, conclude the
Sub-unit with a very brief look at the position of an independent contractor
who has created a danger on premises belonging to someone else.
4. INDEPENDENT CONTRACTORS
4.1 As Occupiers
We have seen that, in order to be an ‘occupier’ for the purposes of the

Occupiers’ Liability Acts, a person must have sufficient control over the premises
in question. Depending on the circumstances of the case an independent
contractor could possess such control, and would therefore be subject to the
obligations of the 1957 and 1984 Acts.
4.2 As Non-occupiers
In A C Billings & Sons Ltd v Riden [1958] AC 240, the House of Lords said that
where a contractor is not an occupier (for the purposes of the 1957 or 1984 Act),
liability turns on the common law of Negligence. In common law Negligence
it is established law that a contractor owes a duty to take reasonable care to
avoid harm to people he could reasonably expect to be affected by his work.
Such people could include trespassers (Buckland v Guildford Gas Light & Coke
Co [1949] 1 KB 410).
The follow-up activity below gives you the opportunity to consolidate your
knowledge and understanding of the law relating to occupiers’ liability.
FOLLOW-UP ACTIVITY Occupiers’ Liability
This activity gives you the opportunity to see whether you can distinguish
between a lawful visitor and a trespasser, and apply the appropriate statutory
provisions. It covers the material in the whole of this Sub-unit. You need,
therefore, to make sure that you fully understand the areas covered in this
Sub-unit before attempting the activity.
Please read the scenario and the questions below, and then follow our
guidelines concerning the approach you should adopt in answering the
questions.
Andy owns and runs a hotel. He engages Charles, a local plumber, to repair
a leak in the fountain that is in the hotel foyer. To access the leak Charles
has to remove a marble slab from the surface of the floor which exposes
a large hole. A hotel guest, Desmond, running to catch the lift in the hotel
foyer and carrying a heavy suitcase, falls into the hole, breaking his pelvis
and his spectacles as a result. There is a large notice at the reception desk, at
the entrance to the foyer, stating: ‘Warning Fountain Repair Work: The hotel
management apologises for any inconvenience caused by repair work being
carried out in the hotel foyer but accepts no responsibility for any injury, loss,
or damage howsoever caused to guests.’ There is also a notice at the hotel
entrance which reads: ‘Guests and visitors only. No public right of way.’ Charles
is now insolvent.
Advise Desmond whether he has a claim in tort against Andy. Would your
answer differ if Desmond was not a guest of the hotel, but decided to take a
short-cut by going through the hotel in order to avoid walking round it?
The approach you should adopt in answering the above is as follows:
1. Decide whether Desmond is a lawful visitor or a trespasser. This will
determine whether the Occupiers’ Liability Act 1957 or the Occupiers’
Liability Act 1984 applies.
2. Decide whether Andy is an ‘occupier’ of ‘premises’ for the purposes of
the Acts.
3. If the 1957 Act applies, what does the common duty of care require of
an occupier? Has the required standard been met? What factors are
relevant in determining this?
4. If the 1984 Act applies, is a duty owed to Desmond, ie are the three
conditions in s 1(3) satisfied?
5. If a duty is owed under the 1984 Act, what is the scope of the duty and
has it been breached?
6. If the occupier has breached his duty, are causation and remoteness
issues satisfied?
7. Are any defences (complete or partial) available to the occupier?What
effect will the notice displayed at the reception desk have on Desmond’s
claim(s)?
COMMENT
Desmond v Andy
Desmond is a lawful visitor because, as a hotel guest, he enters with the
permission of the occupier, and therefore the position is governed by the
1957 Act. He will be owed the common duty of care by Andy, since Andy would
have sufficient control over the relevant area to come within the meaning
of ‘occupier’ for the purposes of the Act. (Remember, the test for who is an
occupier is based on control (Wheat v Lacon).
The common law duty of care requires an occupier to take such care as is
reasonable in the circumstances to ensure the visitor will be reasonably safe
in using the premises for the permitted purpose. The duty extends to damage
to a visitor’s property (Desmond’s spectacles). The occupier will be in breach
of the common duty of care if he fails to come up to the standard of care
expected of a reasonable occupier in his position. The standard of care to be
expected is determined in the same way as for common law Negligence (by
considering all the circumstances of the case), but in addition there are some
statutory considerations. Relevant here are the following:
▪ Whether the notice in reception is a sufficient warning which therefore
discharges the occupier’s duty. Under s 2(4)(a), an occupier can discharge
the duty owed by adequately warning of the danger. However, the notice
at the reception desk is far too general. It does not alert a visitor to any
problem with the floor and would not, therefore, be sufficient for these
purposes.
▪ Whether the occupier can rely on s 2(4)(b). Given that Charles is an
independent contractor, the provisions in s 2(4)(b) of the 1957 Act must
be considered. Andy clearly acted reasonably in entrusting the work to
an independent contractor, but did he take reasonable steps to satisfy
himself that Charles was competent and to check that Charles had done
his work properly? This will be a question of fact, but Charles’s work is
not technical in nature and so it seems reasonable to have expected
Andy at least to check that Charles had screened off the area (by the
use of hoardings or railings) to prevent people falling into the hole. It
is therefore likely that Andy has not discharged his duty by engaging
Charles, and will be found to be in breach of the common duty of care
by leaving such a hole exposed in an area open to guests.
In terms of causation this is clearly established as ‘but for’ the hole, Desmond
would not have fallen and injured himself or damaged his spectacles. There is
no intervening act. The loss Desmond suffered (injury and property damage)
is also of a reasonably foreseeable type and so is not too remote under The
Wagon Mound test.
As regards possible defences, consent would not succeed against Desmond. He
may have been aware that the work was going on (because the notice at the
reception desk points this out), but he cannot be said to have freely consented
to run the risk of being injured by it.
Does the notice at the reception desk successfully exclude Andy’s liability? It
appears that the notice is prominent and so, at common law, Andy has taken
reasonable steps to draw it to the attention of guests. However, it will be
subject to the CRA 2015 because Andy is a trader and Desmond is a consumer.
The notice is, therefore, void as regards Desmond’s broken pelvis (s 65 of the
CRA 2015); and Andy will be able to rely on it for the damage to Desmond’s
spectacles only if it passes the fairness test in the CRA 2015 (s 62).
Finally, it is unlikely that Desmond would be able to recover full damages from
Andy as he would appear to have been careless as to his own safety (not looking
where he was going when running whilst carrying a heavy bag). Therefore
Desmond is contributorily negligent under the Law Reform (Contributory
Negligence) Act 1945. The court would reduce Desmond’s damages by such
extent as it considers just and equitable to reflect his level of responsibility.
Desmond as a Trespasser
In the alternative facts Desmond uses the hotel as a short-cut. The notice
at the hotel entrance means he does not have permission to do this and so
he is a trespasser. (You should remember that, from what you have studied,
this applies even if Desmond does not see or read the notice.) The position is
governed, therefore, by the 1984 Act.
Andy will still be the occupier for the purposes of the 1984 Act, but will owe
Desmond a duty only if the three conditions in s 1(3) are satisfied:
▪ He must have been aware of the danger or had reasonable grounds to
believe it existed. This will be a question of fact.
▪ He must have known or had reasonable grounds to believe that Desmond
might come into the vicinity of the danger. This will depend on whether
Andy knew that members of the public disregarded the notice at the
hotel entrance.
▪ The risk is one against which in all the circumstances Andy might
reasonably be expected to offer Desmond some protection. In applying
this condition, relevant circumstances here include the fact that the
exposed hole was an obvious hazard which could result in serious injury,
and the fact that the risk could easily have been reduced or eliminated
by, say, partitioning the work area from the public area. A hotel lobby is,
after all, a busy place.
We have insufficient information from the facts to be able to judge whether the
three conditions in s 1(3) are all satisfied, but if they are, a duty will be owed
to Desmond. The duty requires the occupier to take such care as is reasonable
in the circumstances to ensure the trespasser is not injured by the danger. As
under the 1957 Act, whether this duty is breached involves considering what
standard of care would have been expected of a reasonable occupier looking
at all the circumstances of the case (including the factors we considered under
the third condition in s 1(3) (above)). Given that it would have been easy to
prevent the accident, the duty (if any) owed to Desmond may have been
breached. The notice at the hotel entrance is unlikely to amount to reasonable
warning/discouragement within s 1(5) as it does not make Desmond aware
of the risk. There would no problem with either causation or remoteness (as
discussed above). Desmond will not be regarded as having willingly accepted
the risk within s 1(6) for the same reasons as when considering Desmond as
a visitor.
The exclusion notice does not protect Andy (even assuming that liability under
the 1984 Act can be excluded, which is uncertain), as the wording is confined
to injury to guests, not trespassers. It would appear, therefore, that if the duty
has been breached by Andy, he will have no defence except the partial defence
of contributory negligence which will reduce Desmond’s damages.
The final point to note is that Desmond will not recover damages for his
spectacles as damage to a trespasser’s property is outside the scope of the
1984 Act.
SUMMARY
▪ You began this Sub-unit by looking at how statute now regulates the
liability of an occupier of premises to visitors and trespassers. You looked
at how the statutory provisions of the Occupiers’ Liability Acts 1957 and
1984 interact with and complement the common law of Negligence. As a
result, you should understand that you analyse a claim under these Acts
in the same way as you analysed a common law Negligence claim in Unit
2: Sub-unit 1.
▪ You then looked at some common issues (namely the definitions of
‘occupier’ and of ‘premises’) affecting both Acts.
▪ Next you considered the Occupiers’ Liability Act 1957. You saw that a duty
of care under this Act is owed automatically by an occupier to a visitor.
You also saw that the duty is to make the visitor reasonably safe, not the
premises safe. The standard of care is the same as that in common law
Negligence (that of a reasonable occupier), but the 1957 Act provides
some additional considerations that should be taken into account.
▪ You then looked at the Occupiers’ Liability Act 1984. A duty under this Act
does not arise automatically but is subject to conditions. You considered
what these conditions are and saw that, in practice, it can be difficult
for a trespasser to satisfy them. If a duty is owed, the standard of care
is, as with the 1957 Act, determined in the same way as at common law
(standard of a reasonable occupier). However, the duty under the 1984
Act covers only injury to the trespasser, not any property damage.
▪ Now that you have studied this Sub-unit, you should be able to analyse
a set of facts and be able to advise accurately on the various claims that
may be available.
▪ The table below lists again the learning outcomes which you should now
have met. Decide for yourself whether you have satisfied the outcomes
by ticking the boxes below.
▪ You should use the follow-up activity contained in this Sub-unit either as
a means of checking whether you have met the outcomes, or in order to
reinforce what you have learned.
REVIEW OF INTENDED OUTCOMES
STUDENT REVIEW
I am able to:
1. Explain all the elements which a visitor needs to prove
to establish a claim under the Occupiers’ Liability Act
1957 against an occupier of premises.
2. Understand how the 1957 Act requirements fit into
the normal Negligence case analysis structure (see
Unit 2: Sub-unit 1).
3. Explain all of the elements which a trespasser needs
to prove to establish a claim under the Occupiers’
Liability Act 1984 against an occupier of premises.
4. Understand how the 1984 Act requirements fit into the
normal Negligence structure (see Unit 2: Sub-unit 1).
5. Apply the law accurately in analysing a set of facts.

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UNIT 4

SPECIAL LIABILITY REGIMES

2. WHAT WILL I ACHIEVE BY STUDYING THIS UNIT?

3. HOW SHOULD I REVIEW AND FOLLOW UP MY STUDY?

3. LIABILITY OF OCCUPIERS TO TRESPASSERS  314

X, a visitor to Y’s house, is Covered by 1957 Act?

2. LIABILITY OF OCCUPIERS TO VISITORS

Someone seeking to prove an occupier’s liability to a visitor must establish

(allow 5 minutes) ACTIVITY 2 Establishing an Occupier’s Liability

2.2 Who is an Occupier?

ACTIVITY 3 Definition of an Occupier

This Activity is in two parts.

PART 1 (allow 15 minutes)

Now complete the chart in Part 2 of this activity.

(allow 5 minutes) PART 2

Situation True False

Situation True False

To summarise, therefore, the definition of an ‘occupier’ is widely interpreted,

2.3 Who is a ‘Visitor’?

(allow 10 minutes) ACTIVITY 4 Definition of ‘Visitors’

(allow 5 minutes) ACTIVITY 5 Classification of Entrant

Situation Visitor Trespasser

2. A sales representative who √

4. A policeman who enters √

Situation Visitor Trespasser

In the next activity you will look at the definition of ‘premises’.

2.5 The Common Duty of Care

ACTIVITY 7 Nature of the Common Duty of Care (allow 5 minutes)

2.6 Breach of the Common Duty of Care

(allow 5 minutes) ACTIVITY 8 Standard of Care: Relevant Factors

ACTIVITY 9 Breach of Duty and ‘Special’ Visitors

(allow 5 minutes) PART 1

PART 2 (allow 15 minutes)

▪ They had been adequately warned of the danger by the defendant’s

(allow 10 minutes) ACTIVITY 10 Child Visitors and Allurements

Where the danger is an allurement, an occupier must therefore do even more

Consider the following scenario:

2.6.2 Skilled visitors

ACTIVITY 12 Skilled Visitors (allow 5 minutes)

Situation Section 2(3)(b)

2.6.3 Escaping breach by warnings

(allow 5 minutes) PART 1

(allow 5 minutes) PART 2

▪ The nature of the danger, ie whether it was a hidden or an obvious

PART 3 (allow 10 minutes)

We have seen, therefore, that an adequate warning of a danger will enable

ACTIVITY 14 Distinction between Warnings and Exclusion Notices (allow 5 minutes)

2.6.4 Independent contractors

(allow 5 minutes) ACTIVITY 15 Occupiers’ Liability for Independent Contractors

(allow 5 minutes) ACTIVITY 16 Checking the Work of an Independent Contractor

To summarise, therefore, on the position of an occupier who employs an

2.7 Causation and Remoteness of Damage

2.8.1 Voluntary assumption of risk (volenti non fit injuria/consent)

ACTIVITY 17 Voluntary Assumption of Risk (Volenti) (allow 10 minutes)

2. Consider the wording of the following notice displayed by an occupier

2.8.2 Exclusion of liability

(allow 20 minutes) ACTIVITY 18 Exclusion of Liability

ACTIVITY 19 Effect of s 2 of UCTA

3. LIABILITY OF OCCUPIERS TO TRESPASSERS 314