14/10/2023, 15:27 1.

6 Occupiers liability

1.6 Occupiers liability

Site: Astutis Learning Campus Printed by: Leon Oosthuysen

Course: Home: DN1 - Workplace health and safety Date: Saturday, 14 October 2023, 3:25 PM
Book: 1.6 Occupiers liability

https://learning.astutis.com/mod/book/tool/print/index.php?id=382 1/10
14/10/2023, 15:27 1.6 Occupiers liability

Table of contents

The law in England and Wales

Occupiers’ Liability Act 1957
Occupiers' Liability Act 1984
The law in Scotland
Learning check
Discovery learning

https://learning.astutis.com/mod/book/tool/print/index.php?id=382 2/10
14/10/2023, 15:27 1.6 Occupiers liability

The law in England and Wales

Occupiers’ liability concerns liability for damage to ‘others’ on occupiers’ property, where an occupier (for tort
purposes) is someone who has sufficient control of premises (including fixed or moveable structures) to justify the
duties being imposed.

A landlord may not be an occupier if the premise is let, whereas a principal contractor on a construction site may well
be an occupier, even if he has no legal interest in the land.

Historically occupiers’ liability law developed separately to the law of negligence and recognised two categories of
person that an occupier owed a duty to, i.e. invitees and licensees.

Invitee – entry onto premises is of benefit to occupier (for example, a customer in

a shop)
Licensee – no community of interest with occupier (i.e. not invited but tolerated).

The Occupiers’ Liability Act 1957 was introduced to address confusion within the common law of occupiers’ liability,
and remodelled the law along the lines of general negligence so that visitors were owed a common duty of care:

Duty to take such care as 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 to
be there.

The Occupiers’ Liability Act did not affect the duty to trespassers, i.e. any person who is on the premises unlawfully,
without the express or implied consent of the occupier. The common law duty to trespassers remained, to not
deliberately or recklessly cause injury, though reasonable force could be used to expel a trespasser.

Case law

In Addy and Sons v Dumbreck (1929) the House of Lords had decided that an occupier of premises was
only liable to a trespassing child if that child was injured by the occupier intentionally or recklessly.

In Herrington v British Railways Board (BRB) 1972 a six year old gained access to the railway via a
dilapidated fence (broken by trespassers who regularly crossed the line) and was injured by an electrified
rail. The defendant knew children had been seen on the land in the past but had not repaired the fence.

The House of Lords overruled the Addy decision, changing the law in line with the changes to social and
physical conditions that had occurred since 1929. They felt that even a trespasser was entitled to some
degree of care, which it propounded as a test of ‘common humanity’.

The Court of Appeal held that BRB was in breach of its duty of care and therefore liable: The duty owed
was…to take such steps as common sense or common humanity would dictate.

The duty of common humanity required consideration of all the surrounding circumstances, for example, the
seriousness of the danger, the type of trespasser likely to enter, and in some cases the resources of the occupier.

It is difficult to differentiate from the general common law duty of care, although the standard probably requires a
higher degree of likelihood of harm, and the circumstances and available resources of the occupier are considered.

https://learning.astutis.com/mod/book/tool/print/index.php?id=382 3/10
14/10/2023, 15:27 1.6 Occupiers liability
The courts had a major difficulty in striking a balance between the rights of landowners and the rights of the
unintentional trespasser, who is injured as a result.

Section 1(4) of the Occupiers’ Liability Act 1984 replaced the duty of common humanity with a duty to:

…take such care as is reasonable in all the circumstances of the case to ensure that
the trespasser is not injured by the state of or anything on the premises.

Under Section 1(3) the trespasser is owed duty if:

the occupier is aware of the danger or has reasonable grounds to be aware

the occupier knows, or has reasonable grounds to know that the trespasser is, or
may be in the vicinity of the danger
the risk is one from which the occupier may reasonably be expected to offer some
protection.

The Occupiers’ Liability Act 1984 does not significantly change the common law position regarding trespassers. All the
circumstances of the cases remain relevant, including what the occupier does know and ought to know, both about
the existence of the danger and the likelihood of trespassers.

It is very unlikely that Herrington’s case would be decided differently under the 1984 Occupiers’ Liability Act.

https://learning.astutis.com/mod/book/tool/print/index.php?id=382 4/10
14/10/2023, 15:27 1.6 Occupiers liability

Occupiers’ Liability Act 1957

 Section 1 – Liability in tort

 Section 2 – Extent of occupiers ordinary duty

 Section 3 – Effect of contract on occupiers liability to a third party

 Section 4 – Landlords liability in virtue of obligation to repair

Explore more

Watch the below video from The Law Bank and answer the following questions:

1. What does section 2(1) of the Act state?

2. What does section 1(3)(a) of the Act state?
3. What does section 2(4)(a) of the Act state?
4. What does section 2(3)(a) of the Act state?
5. What does section 2(4)(b) of the Act state?

https://learning.astutis.com/mod/book/tool/print/index.php?id=382 5/10
14/10/2023, 15:27 1.6 Occupiers liability

Occupiers' Liability Act 1984

Section 1 – Duty of occupiers to persons other than visitors

Determines whether any common law duty is owed to persons other than visitors, and if so what the extent of the
duty is.

The occupier owes a duty to people other than visitors if:

he is aware of the danger or has reasonable grounds to believe that it exists

he knows or has reasonable grounds to believe that the person is in the vicinity of
the danger, or may come into the vicinity of the danger
the risk is one against which, in all the circumstances of the case, he may
reasonably be expected to offer some protection.

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.

The 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.

No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his, by that person.

Explore more

Watch the below video from The Law Bank and answer the following questions:

1. What are the three provisions of the Act?

2. What does section 1(4) of the Act state?
3. What does section 1(2) of the Act state?
4. What does section 1(6) of the Act state?

https://learning.astutis.com/mod/book/tool/print/index.php?id=382 6/10
14/10/2023, 15:27 1.6 Occupiers liability

https://learning.astutis.com/mod/book/tool/print/index.php?id=382 7/10
14/10/2023, 15:27 1.6 Occupiers liability

The law in Scotland

Section 2 (1) of The Occupiers’ Liability (Scotland) Act 1960 states:

The care which an occupier of premises is required, by reason of his occupation or

control of the premises, to show towards a person entering thereon in respect of
dangers which are due to the state of the premises or anything done or omitted to
be done on them and for which the occupier is in law responsible shall be such care
as in all the circumstances of the case is reasonable to see that the person will not
suffer injury or damage by reason of any such danger.

Unlike England and Wales where the statutory duty of care owed to invited visitors is greater than the level of care
owed to trespassers, in Scotland there is no distinction and the same duty of care is owed to all persons entering the
premises.

The occupier is required to take reasonable care to ensure that a person on the premises does not suffer injury or
damage caused by the state of the premises or by anything done or not done to the premises.

What is reasonable will depend on the circumstances of the case, and is generally regarded as what a ‘reasonable
person’ would consider to be reasonable in the circumstances.

The occupier is not normally expected to guard against dangers which are obvious and has no obligations regarding
risks which are willingly accepted by the visitor.

The 1960 Act does not specifically refer to the duties owed to children. However, certain dangers will be less obvious to
children than to adults, and this will need to be taken into account in the level of care shown. Note: the principal duty
in relation to very young children remains with their parents.

Section 3 of the Act is titled landlord’s liability by virtue of responsibility for repairs. Section 3 makes it clear that where
the landlord is responsible for the maintenance or repair of the premises, the landlord is liable for harm to any persons
on the premises or their property kept on the premises arising from a failure to maintain the premises in good repair.

https://learning.astutis.com/mod/book/tool/print/index.php?id=382 8/10
14/10/2023, 15:27 1.6 Occupiers liability

Learning check

https://learning.astutis.com/mod/book/tool/print/index.php?id=382 9/10
14/10/2023, 15:27 1.6 Occupiers liability

Discovery learning

Search term:
"Occupiers’ Liability Act"

Suggested organisation:
Legislation.gov.uk

Think about:

How does the information on these and other websites differ?

How often does this information change?
Who is affected by this information?
Is this information specific to a particular location?

https://learning.astutis.com/mod/book/tool/print/index.php?id=382 10/10