Liability in Respect of Lawful Visitors (OCR A-Level Law): Revision Notes

Liability in Respect of Lawful Visitors

This aspect of occupiers' liability concerns the duty of care owed by occupiers to individuals who are lawfully present on their property. The law imposes specific obligations on occupiers to protect lawful visitors from injuries or damage arising from the state of the premises. This is governed primarily by the Occupiers' Liability Act 1957.

Understanding who qualifies as a lawful visitor and what duties are owed to them is essential for determining liability in this area.

Who is a lawful visitor?

A lawful visitor is someone who has permission to be on the premises. The Occupiers' Liability Act 1957 recognises several categories of lawful visitors, each with legal authority to enter the property.

Categories of lawful visitors

Invitees (s 1(2))

These are individuals who have been explicitly invited onto the land by the occupier. The invitation creates express permission for them to be present.

Licensees (s 1(2))

Licensees are people who have permission to be on the premises, either express or implied. This category includes situations where permission is explicitly given, as well as circumstances where a licence would be implied at common law. The concept of implied licence is particularly important and is discussed further below.

Those entering pursuant to a contract (s 5(1))

Individuals who enter premises as part of a contractual arrangement are lawful visitors. A common example would be someone who has paid for a cinema ticket and enters the cinema to watch a film. The contract between the visitor and the occupier creates the legal basis for their presence on the premises.

Those entering in exercising a statutory right (s 2(6))

Certain individuals have a legal right to enter premises under statute law. For example, utility workers entering a property to read gas or electricity meters have a statutory right of entry, making them lawful visitors even without the express consent of the occupier.

Implied licence at common law

The courts may imply a licence in certain circumstances, particularly where there has been repeated trespass and the occupier has taken no action to prevent it. Two key requirements must be satisfied for an implied licence:

First, the occupier must be aware of both the trespass and the danger present on their land. This principle was established in Lowery v Walker (1911), where the claimant was injured by a dangerous horse while using a shortcut that many people regularly used across the defendant's land. The court held that a licence could be implied because the occupier knew about the regular trespassing.

Second, the courts are more inclined to imply a licence where something on the land acts as an allurement—that is, something particularly attractive that draws people onto the land. In Taylor v Glasgow City Council (1922), a child was poisoned by eating berries in a public park. The council was held liable because the berries were an allurement to children, and the council knew both that children would be attracted to the park and that the berries were poisonous.

The duty of care owed to lawful visitors

Under s 2(2) of the Occupiers' Liability Act 1957, occupiers owe a common duty of care to all lawful visitors. The statutory definition states:

The common duty of care is to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

This duty is not an absolute guarantee of safety. Instead, it requires the occupier to take reasonable steps to ensure that visitors will be reasonably safe. The focus is on making the visitor safe, not necessarily making the premises completely safe in all respects. The standard is assessed objectively based on what would be reasonable in all the circumstances of the particular case.

Claimable damage

The types of harm that can be claimed under the Occupiers' Liability Act 1957 include death, personal injury, and damage to property. This means that if a lawful visitor suffers any of these forms of harm due to the occupier's breach of the common duty of care, they may have a valid claim.

Definition of premises

The Act provides a broad definition of what constitutes "premises." Under s 1(3)(a), premises include not only land and buildings but also extend to fixed and movable structures. This encompasses any vessel, vehicle, or aircraft. Therefore, occupiers' liability can apply in a wide range of situations, from traditional buildings to ships, cars, and planes.

Breach of the duty of care

For an occupier to be held liable, there must be a breach of the common duty of care. This occurs when the occupier fails to meet the required standard of care.

The standard of care: the reasonable occupier

The standard imposed is that of the reasonable occupier. This is an objective test that asks what a reasonable occupier would have done in the circumstances. If the occupier's conduct falls below this standard, they will be in breach of their duty.

Variations on the standard of care

While the general standard is that of the reasonable occupier, the Act recognises two specific situations where the standard of care may be modified to reflect the particular characteristics of certain visitors.

Section 2(3)(a): Children

This provision states that an occupier must be prepared for children to be less careful than adults. The law recognises that children, by their nature, are more curious and less aware of dangers than adults. When assessing whether an occupier has met the required standard of care, the court will take into account the age of the child and the level of understanding that a child of that age could be expected to have.

Section 2(3)(b): Experts and those exercising a calling

This provision recognises that an occupier may expect that a person exercising their profession or calling will appreciate and guard against any special risks that are ordinarily incident to their work.

When an occupier employs an expert to come onto the premises to undertake specialist work, that expert is expected to be aware of the particular dangers associated with their profession and to take appropriate precautions. The occupier can therefore assume that the expert will protect themselves against these professional risks.

Warnings and warning signs

An occupier may potentially discharge (fulfill) their duty of care by providing an adequate warning of danger. However, the law sets a high threshold for what constitutes an adequate warning.

Section 2(4)(a) provides that a warning will not be treated as absolving the occupier of liability unless, in all the circumstances, it was sufficient to enable the visitor to be reasonably safe. This means that simply putting up a warning sign is not automatically enough. The warning must actually allow the visitor to take steps to avoid the danger or to make an informed decision about whether to proceed.

Dangers arising from actions undertaken by independent contractors

Occupiers often hire independent contractors to carry out work on their premises. The question arises as to whether the occupier remains liable if the contractor's work creates a danger.

Section 2(4)(b) provides that an occupier will not be liable for dangers created by an independent contractor if two conditions are satisfied:

First, the occupier must have acted reasonably in all the circumstances in entrusting the work to the independent contractor. This means it must have been appropriate to hire a contractor rather than attempting the work themselves or using employees.

Second, the occupier must have taken reasonable steps to satisfy themselves that:

• The contractor was competent to carry out the work
• The work has been properly done

Defences available to occupiers

There are three main defences that an occupier may raise when faced with a claim under the Occupiers' Liability Act 1957.

Volenti non fit injuria (s 2(5))

This defence, which means "to one who is willing, no injury is done," applies when the visitor has willingly accepted the risk. Section 2(5) states that the common duty of care does not impose an obligation on occupiers in respect of risks that are willingly accepted by the visitor.

However, the defence has limitations. The occupier must prove that the visitor had full knowledge of the nature and extent of the risk and freely chose to accept it. The defence will not succeed simply because the visitor was aware of a danger—they must have voluntarily accepted the risk of that danger occurring.

Contributory negligence

Under the Law Reform (Contributory Negligence) Act 1945, damages may be reduced where the visitor has failed to take reasonable care for their own safety. This is not a complete defence—it does not absolve the occupier of liability entirely—but it can result in a reduction of the damages awarded.

For contributory negligence to apply, the court must find that the visitor's own failure to take care contributed to the injury they suffered. The damages will then be reduced by a percentage that reflects the visitor's degree of fault. For example, if a visitor ignores clear warning signs and is subsequently injured, the court might reduce their damages by 50% to reflect their contribution to the harm.

Exclusion of liability (s 2(1))

Section 2(1) allows an occupier to extend, restrict, exclude, or modify their duty to visitors, insofar as they are free to do so. This means that occupiers can, in certain circumstances, use notices or contractual terms to limit or exclude their liability.

Key cases summary

Understanding the key cases is essential for applying the law of occupiers' liability to practical scenarios. The following cases establish important principles:

Wheat v E. Lacon and Co. Ltd (1966)

The claimant's husband died in a fall while staying in a public house. The court held that both the brewery (which owned the property) and the managers (who ran it) owed a duty of care. This case established that there can be multiple occupiers of the same premises, and the test to be applied is one of "occupational control" rather than ownership.

Lowery v Walker (1911)

The claimant was injured by a dangerous horse when taking a commonly used shortcut across the defendant's land. The court found that a licence could be implied through the repeated trespass, of which the defendant was aware but took no steps to prevent. This case illustrates when an implied licence may arise.

Taylor v Glasgow City Council (1922)

A child was poisoned by eating berries in a public park maintained by the council. The council was held liable because it knew that children would be attracted to the park and it knew the berries were poisonous. This case demonstrates the principle of allurement and the occupier's duty when something on the land is likely to attract visitors, particularly children.

Jolley v Sutton LBC (2000)

A boy was seriously injured while attempting to repair an abandoned boat that had been left in a public park for several months. The council knew about the boat but had failed to remove it. The House of Lords held that the council was liable, emphasising that occupiers must anticipate that children will be attracted to interesting objects and may act in unpredictable ways. The court must consider what is reasonably foreseeable when children are the visitors.

Roles v Nathan (1963)

Two chimney sweeps died from carbon monoxide poisoning while cleaning the defendant's chimney. Despite being warned about the danger, they continued working while the boiler was lit. The defendant was not liable because the chimney sweeps were experts who should have been aware of the risks associated with their profession and should have protected themselves accordingly.

Darby v National Trust (2001)

The claimant's husband drowned in a pond on National Trust property that was commonly used for swimming and paddling. The National Trust had taken no steps to prevent access or warn of dangers. The court held that the National Trust was not liable because the risk of drowning in water was obvious, and there was no duty to warn against such obvious risks.

Bottomley v Todmorden Cricket Club (2003)

The claimant was injured at a firework display held on the defendant's land but organised by an independent contractor. The cricket club was held liable because, although they had hired a contractor to run the display, they had not checked the contractor's insurance. This failure to take reasonable steps meant they could not rely on the defence under s 2(4)(b) regarding independent contractors.

White Lion Hotel v James (2021)

The claimant fell out of a hotel window after sitting on the window ledge. The window fastenings were broken, which contributed to the fall. The court held that the hotel was liable, establishing that a visitor's freely chosen risk does not necessarily negate an occupier's liability. The occupier still has a duty to maintain the premises in a reasonable condition, and the claimant's decision to sit on the ledge did not absolve the hotel of its responsibility to ensure window fastenings were properly maintained.

Exam technique

When answering problem questions on occupiers' liability in respect of lawful visitors, follow this structured approach:

Remember to use the IDEA method when discussing each legal point:

• Identify the relevant legal principle
• Describe the legal principle in detail
• Example – cite a relevant case
• Apply the principle and case to the scenario facts