Chapter-7 Occupiers' LiabilityAuthor(s) - DR Karen Dyer

7.
Occupiers’ Liability
Concentrate Questions and Answers Tort

Law: Law Q&A Revision and Study Guide
Dr Karen Dyer
Publisher: Oxford University Press Published in Print: May 2019

ISBN: 9780198745297 Published Online: Sep 2019
DOI: 10.1093/he/ © Karen Dyer, David Oughton,
9780198745297.001.0001 Barbara Harvey 2019
7. Occupiers’ Liability
Chapter: (p. 85) 7. Occupiers’ Liability
Author(s): Dr Karen Dyer
DOI: 10.1093/he/9780198745297.003.0007
Are You Ready?
In order to answer questions on this topic, you need an understanding

of the following:
• Occupiers’ Liability Act 1957 (OLA 19 [1957] 57)

• Occupiers’ Liability Act 1984 (OLA 19 [1984] 84)
• The ‘control test’—how ‘occupiers’ have been identified by the
courts
• The difference between a ‘visitor’ and a ‘non-visitor’, and the
legal differences that arise
• How the courts have interpreted ‘reasonable care’
• The concept of ‘breach of duty’ and ‘causation’ in negligence
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• Excluding or restricting negligence liability under s. 65

Consumer Rights Act 2015
• General defences in tort law
Key Debates
The 2018 ‘You vs. Train’ campaign by the British Transport Police was
put into action as a response to the increasing number of deaths
occurring as a result of children taking ‘selfies’ whilst trespassing on
railway lines. The research behind this campaign highlights the lack
of awareness of the obvious danger involved in this activity.
Current law provides greater protection for ‘visitors’ as opposed to

‘trespassers’. Sometimes a child trespasser will be treated as a visitor,
even though they have clearly trespassed. Should occupiers be
responsible for every danger that might occur to children on their
land? How much should an occupier do to discharge their duty of
care? Should an occupier be held liable, even if the risks of an activity
appear obvious?
(p. 86) Question 1
Pleasureland Ltd own and operate Thrill Towers, an entertainment

park. At the entrance to the park there is a prominent notice that
‘Pleasureland Ltd and Kidikicks Ltd can accept no liability for any
injury suffered’. One of the attractions, the ‘Serpent’, has been leased
from Pleasureland Ltd by Kidikicks Ltd; the lease provides for
Kidikicks to maintain the ride. The Serpent is a frightening car ride
which for part of its route travels underground. At the entrance to the
Serpent ride there is a notice which states:
All possible precautions are taken in the interests of safety. This

tunnel for this ride has a low ceiling.
People taller than 6 feet 3 inches are not permitted on this ride.
Adam, aged 21, is 6 feet 4 inches tall but decides that this cannot
matter and bends his knees as he passes under the height-checking
device provided by Kidikicks Ltd. During the ride, the Serpent dips
sharply into an underground cavern and Adam, who is sitting high up
in his seat, suffers a blow to the head from a low light used in
emergencies which has come free from its support. Sitting behind
Adam is Bronwen who is also struck by the light; she is 5 feet 3 inches
tall. The light has recently been maintained by Sparky, an
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independent contractor. Both Adam and Bronwen are seriously

injured.
Advise on the potential liability of Pleasureland Ltd and

Kidikicks Ltd under the Occupiers’ Liability Acts.
Caution
■ This question clearly states, ‘advise under the Occupiers’

Liability Acts’; therefore you should not discuss the tort of
negligence when answering this question.
■ It is usual for an examiner to test you on both the Occupiers’
Liability Act 1957 and the Occupiers’ Liability Act 1984. It is
important to consider this when planning your answer.
(p. 87) Diagram Answer Plan
Suggested Answer
The duty under the 1. Occupiers’ Liability Act 1957 (OLA 1957) and
the Occupiers’ Liability Act 1984 (OLA 1984) is placed on the
‘occupier’ of the ‘premises’ where the injuries happened. Therefore 2.
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when assessing potential liability of Pleasureland Ltd and Kidikicks

Ltd in occupiers’ liability, it is important to establish which company
is the ‘occupier’ of the ‘premises’ concerned.
1.The first time you mention a statute, write out its name in full.
Then you can abbreviate it, but make sure that you specify the
year of the Act.
2.A good answer focuses on advising the relevant parties rather

than just discussing the law in this area.
There is no definition of ‘premises’ contained in the statute, although

s. 1(3)(a) OLA 1957 refers to any ‘fixed or moveable structure’.
Consequently, the common law has a broad approach to this.
Premises have included a lift (Haseldine v Daw), a ladder (Wheeler v
Copas), and a bowling alley (D v AMF Bowling). Therefore, it will easy
to establish that the scene of the accidents, namely 3. the Serpent, will
be considered ‘premises’ for the purpose of the Act.
3.Always refer your answer back to the facts of the question. This
shows that you are reading the question that has been set, rather
than writing out a memorized script.
(p. 88) Having identified that the injuries occurred on the ‘Serpent’,
it is now possible to establish which company is the ‘occupier’ and
therefore bears the potential liability for the accidents.
Section 1(2) OLA 1957 does not define who an occupier is, but states
that it is someone ‘who would at common law be treated as an
occupier’. According to Wheat v Lacon Ltd [1966] AC 552 an
occupier is someone with a ‘sufficient degree of control’ of that part
of the premises on which the accident occurs. A person does not have
to be in actual occupation of the premises to be considered an
occupier (Harris v Birkenhead Corporation). There may also be more
than one occupier (Stone v Taffe).
Here, there appear to be have two occupiers, Kidikicks and

Pleasureland, as both have a ‘sufficient degree of control’ over the
premises. However, any liability for the light would depend on who
had overall responsibility for it. As the facts state that the 4. ‘lease
provides for Kidikicks to maintain the ride’, liability might fall on
Kidikicks.
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4.Select important facts mentioned, and address them. Remember

that you are being assessed on your application of the law to the
facts.
For the purposes of the OLA 1957, the common duty of care is owed
to any person who would have been treated as an invitee or a licensee
at common law (s. 1(2)). This includes contractual visitors such as
Adam and Bronwen, assuming they have paid to enter Thrill Towers.
As regards Adam and Kidikicks, the position is more complex, since,

as he is taller than the specified height limit, Adam may be a
trespasser. If this is the case the only duty owed to him will arise
under the OLA 1984.
In Tomlinson v Congleton Borough Council [2003] UKHL 47 the

claimant was treated as a trespasser from the time he ran into the
water with a view to diving. In Keown v Coventry Healthcare NHS
Trust [2006] EWCA Civ 39 an 11-year-old who climbed a fire escape
on the underside was a trespasser on the basis of the dictum of
Scrutton LJ in The Carlgarth [1927] P 93, 110 that: ‘When you
invite a person into your house to use the staircase, you do not invite
him to slide down the banisters.’ (See also Geary v JD Wetherspoon
Plc [2011] EWHC 1506, decided on facts remarkably similar to
Scrutton LJ’s example.)
If either Act is to apply, the danger complained of must arise from

some type of a defect in the premises. Further, the state of the
premises must present a foreseeable risk, W Sussex CC v Pierce
[2013] EWHC 2030. In Tomlinson a muddy lake with shallow water
and variable depth was not defective as it was typical of other lakes,
but in Rhind v Astbury Water Park [2004] EWCA Civ 756 a lake
with a hard object buried in the silt was unusual and so defective. 5.
Applying this to our situation, the light fitting hanging down is clearly
a defect in the state of the premises and gives rise to a danger, since
it hits both both Bronwen and Adam.
5.The law in the area is fascinating, but remember you are

discussing it to advise your client.
(p. 89) Assuming Bronwen and Adam are visitors, the OLA 1957 will
apply and the duty will be the same whether they would have been
invitees or licensees at common law. Section 2(2) requires the
occupier ‘to take such care as in all the circumstances of the case is
reasonable to see that the visitor is reasonably safe in using the
premises for the purposes for which he is invited or permitted by the
occupier to be there’. 6. The test for determining whether there has
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been a breach of that duty is the same as at common law, taking

account of the degree of risk and the cost of taking precautions.
6.As the question specifies occupiers’ liability, do not be tempted

to discuss details of breach of duty of care when answering this
question, even if you have in-depth knowledge of it.
Kidikicks may be able to argue that they have discharged their duty of
care by using an independent contractor to do the work within s. 2(4)
(b) OLA 1957. They will have to show that they had acted reasonably
in their choice of contractor and had checked that the work had been
properly done. The facts say little about the competence of Sparky,
but although electrical fittings require technical knowledge
(Haseldine v Daw), a dangling light fitting may be considered
something that the occupiers should have checked up on themselves
(Woodward v Mayor of Hastings). If s. 2(4) has been satisfied then
Kidikicks will have performed their duty and 7. no liability on their
part will arise.
7.It always feels satisfying if you can give firm advice when
answering the question, but make sure that you advise from all
angles.
Any potential liability of Sparky would be considered under

negligence principles. It might be argued that by entering the ride,
when he has exceeded the height limit, Adam has consented to the
risk of injury under the OLA 1957, s. 2(5). However, all Adam is
aware of is a low ceiling, and he is injured by a low-hanging light
fitting, so it is unlikely that he will be taken to have consented to that
risk.
Kidikicks Ltd may argue that the warning notice at the entrance to
the ride discharges their duty under the Act. However, s. 2(4)(a)
requires a warning to enable a visitor to be reasonably safe taking
account of all the circumstances of the case. 8. In Roles v Nathan
[1963] 2 All ER 908, two industrial chimney sweeps died after
ignoring a warning that they should not work on certain boiler flues if
the fire in the boiler was lit. The warning was held to have discharged
the occupier’s duty of care. By comparison, Kidikicks’ warning does
not indicate how a user of the ride can remain safe, so that it is
unlikely to discharge the duty.
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8.It is useful to discuss case law facts if you are distinguishing a

case from the problem in front of you, as is shown here.
Kidikicks may be able to rely on the defence of contributory

negligence: OLA 1957, s. 2(3). This allows a court to consider ‘the
degree of care, and want of care, which would ordinarily be looked
for in such a visitor’. Adam, as an adult, may have failed to take
reasonable care for his own safety, so that any damages awarded may
be reduced under the provisions of the Law Reform (Contributory
Negligence) Act 1945. The defence will operate to reduce his
damages only if the injury was due to, or was made worse by, his
being too tall for the ride. However, as Bronwen, who is only 5 feet 3
inches (p. 90) tall, was also injured by the low-hanging light, it
appears that Adam’s height is not the cause of the problem.
If Adam is treated as a trespasser, he is a non-visitor, and therefore

OLA 1984 must be considered. This Act requires the non-visitor to
establish that a duty is owed. Under s. 1(3) three conditions must be
satisfied, namely that (i) the occupier knows or has reasonable
grounds to believe that the danger exists, (ii) the occupier knows or
has reasonable grounds to believe that the non-visitor is or will come
into the vicinity of the danger, and (iii) the risk is one against which in
all the circumstances it is reasonable to offer the other person some
protection. Arguably, in respect of a simple maintenance matter, the
occupier ought to have been aware of this danger.
Exclusion notices are permitted by the OLA 1957 in relation to

visitors, subject to s. 65(1) Consumer Rights Act 2015 which
specifies that a ‘trader cannot by a term of a consumer contract or by
a consumer notice exclude or restrict liability for death or personal
injury resulting from negligence’; and further, under s. 65(2) that ‘a
person is not to be taken to have voluntarily accepted any risk merely
because the person agreed to or knew about the term or notice’. In
this respect, the warning notices at the entrance will not prohibit
Bronwen and Adam from being successful with their claims.
9.In conclusion, in assessing overall liability, both Pleasureland Ltd

and Kidikicks Ltd are ‘controllers’, although the facts indicate that
Kidikicks has a greater degree of control on a day-to-day basis. A
further consideration is whether Kidikicks has discharged its duty by
carefully selecting an independent contractor to undertake the
maintenance. If this is the case, the claimants may pursue a claim
against Sparky, therefore releasing both Pleasureland and Kidikicks
from any potential liability.
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9.Conclude by referring back to the question. Who were you

asked to advise? What is your opinion of their situation? A strong
conclusion leaves a favourable impression on your examiner.
Looking for Extra Marks?
■ Occupiers’ liability problem questions tend to be rather lengthy,

and it is easy to miss important information. Before starting your
answer, you should ensure that you have identified all the key
issues that the question sets you.
■ Issues of causation and remoteness of damage are likely to
occur in these problem scenarios. If you have planned your time
well, you may briefly address these points in your answer.
Question 2
Stepford College is managed by Mr Alldred the principal, under the

governance of Westbrook County Council. The college grounds
include a leisure complex comprising a gymnasium, a small (p. 91)
theatre, and a swimming pool. Mr Alldred asks the council for
permission to let out these facilities to outside organizations to raise
money for the college, but he is told that this is not possible at
present, as the college’s insurance does not cover them for any
liabilities that might thus arise.
Despite this Alldred agrees to let the theatre for one week to Empire
Opera Company, an amateur operatic society, for their production of
The Mikado. As he is aware of the insurance problem, Alldred posts a
notice by the theatre doors, stating: ‘The college accepts no
responsibility for any injuries that may happen to any persons using
this theatre.’
Alldred is also aware that theatre may be unsafe, as the aisles in the
stalls have several steps which are neither illuminated nor marked in
any way. He pays two students, Crazed and Dumbo, to put white tape
on the edge of the steps. The students take his money but do not
bother to do the job. Alldred does not check to see the work has been
completed.
During a performance of the show, Bazza, who is helping out in the

box office, receives an urgent message from a member of the
audience. He creeps into the auditorium and down an aisle to locate
the audience member in question. As the theatre is in darkness,
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except for the lights on the stage, he is walking very carefully, when
he trips over one of the unmarked steps, falls, and breaks his arm.
During the interval of the show Ethan, aged 25 and who is rather
bored by the production, goes to explore the leisure complex. He
finds the swimming pool, which is very dimly lit and obviously closed.
Although the doors are locked, he sees that there is a large window
open and he easily climbs through it to gain access to the pool. He
decides to go for a swim, so he underdresses and goes towards the
end of the pool with the diving board, assuming it to be deep end. He
dives in head first. Unfortunately the pool has been completely
drained for cleaning and Ethan breaks his neck when he hits his head
on the concrete floor.
Meanwhile Fay, aged seven, whose parents are both in the show, has
been left by herself in the auditorium. Getting bored, she leaves the
theatre and walks through some open doors into the gymnasium. This
contains several items of portable weight-training equipment in one
corner. There is a large sign near the equipment which says ‘Caution:
Misuse of this equipment can lead to serious injuries. Do not use
unless you have been properly trained.’ Fay attempts to lift a 16 kg
kettle weight and is injured when she pulls a muscle in her back.
Advise Bazza, Ethan, and Fay of their rights, if any, in the law
of occupiers’ liability.
Caution
■ As with the previous question, make sure that you read the facts
carefully before you start your answer.
■ There are three different claimants, therefore you should
anticipate three different answers, though there will be some
overlap in your advice.
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Suggested Answer
A ‘night at the opera’ has left Bazza, Fay, and Ethan suffering a
variety of personal injuries. Consequently, we are asked to advise the
various parties as to their rights in the law of occupiers’ liability. The
law in this area is predominantly defined by statute: the Occupiers’
Liability Act 1957 (OLA 1957) which deals with ‘visitors’ and
includes claims for property as well as physical damage, and the
Occupiers’ Liability Act 1984 (OLA 1984), which is confined to
liability for ‘trespassers’.
1.An essential step in the parties’ claims will be to establish who the
‘occupier’ was. OLA 1957 s. 1(2) stipulates that an occupier under the
Act is ‘the same as the persons who would at common law be treated
as an occupier’. We must therefore turn our attention to the common
law. According to Wheat v E Lacon & Co Ltd [1966] AC 552, (p. 93)
to assess if someone is an ‘occupier’ one has to determine if he or she
has ‘a sufficient degree of control’ over the premises. A person does
not have to be in actual occupation of the premises to be considered
an occupier (Harris v Birkenhead Corporation [1976] 1 WLR 279).
There may also be more than one occupier (Stone v Taffe [1974] 3 All
ER 1016). 2. Referring back to our claimants, it seems then that we
have two occupiers, Mr Alldred and also Westbrook County Council,
as both have ‘a sufficient degree of control’ over the Stepford College.
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1.
Remember to start with the statute law in the area before
moving on to case law.
2.If you are looking for extra marks, you may wish to discuss the
legal relationship of the two occupiers.
For the claims to be assessed under the terms in OLA 1957, it is

important to ascertain whether our claimants satisfy the criteria of
‘visitor’. The definition in the statute is vague—under s. 1(2), visitors
are those who ‘would at common law be treated as … invitees or
licensees’; in other words they have express or implied permission to
be there. Initially, it appears that all claimants had express permission
to enter the college theatre. It does not matter that their presence
was strictly prohibited by the council, if the claimants, themselves, do
not realize this (Stone v Taffe).
For the claim to be successful, it needs to be established that the

injuries happened on ‘premises’. There is no explicit definition of
‘premises’ contained in the statute, although s. 1(3)(a) refers to any
‘fixed or moveable structure’. Consequently, the common law has a
broad approach to this. Premises have included a lift (Haseldine v
Daw), a ladder (Wheeler v Copas), and a bowling alley (D v AMF
Bowling). 3. Therefore, it will easy to establish that the scenes of the
accidents—namely the stairs, the swimming pool, and the gym—are
‘premises’ for the purpose of the Act.
3. Try to match the facts of the question with identified case law.
Bazza
It is of no surprise to find that there are a number of cases involving
falls down unlit stairs, and the case law turns on the individual facts.
In Stone v Taffe, the court found for the claimant, but in Wheat v
Lacon, it was held there was not sufficient evidence regarding the
nature of the fall to prove liability 4. In Capitano v Leeds Eastern
Health Authority [1989] CLT 3522, a security guard was unsuccessful
in his claim, being told that a torch was sufficient illumination by
which to descend an unlit flight of metal stairs. Consequently, the
provision of the torch was sufficient to discharge the duty of care. It
would be worth establishing if a torch was available at the theatre.
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4.There is an abundance of case law in this area. If you can find a

more obscure case to mention, it will make your answer more
colourful.
We are not told of the condition of the stairs. It might be that they are
unusually slippery, or uneven. Section 2(2) of OLA 1957 defines the
common duty of care. It should be noted that it is the visitor, rather
than the premises, that must be reasonably safe. The occupier does
not need to have created the danger in order to be liable. (In Ward v
Tesco Stores Ltd [1976] 1 WLR 810, the company were found liable in
negligence for not attending to a yoghurt spillage, of unknown origin,
(p. 94) promptly.) It is possible that during the production, the steps
may have become slippery due to the theatre production itself. This
will not affect a potential claim, as it is the state of the premises
rather than the activity that needs to be safe under the Act.
Bazza is a visitor to the box office, and it could be argued that when
he leaves the box office he is no longer a visitor. However, as his
mission is ‘theatre business’, it is likely that this argument would be
dismissed. 5. Could Bazza be contributorily negligent as he has
embarked on an errand? Following Brioland Ltd v Mary Searson
[2005] EWCA Civ 55, it could be said that even if Bazza was not fully
concentrating on the steps, but on locating someone, it does not
excuse the occupier for defective premises.
5. Look for any possible defences that may arise.
It may bode well for Bazza that Alldred has acknowledged that the
premises were dangerous by employing Crazed and Dumbo to put
white tape along the edge of the steps. As this is an unskilled job, as
opposed to one requiring technical knowledge (Haseldine v Daw
[1941] 2 KB 343), it will be no excuse for Alldred not to check that the
work was done. As Parcq LJ stated in Woodward v Mayor of Hastings:
6. ‘The craft of the charwoman may have its mysteries, but there is no
esoteric quality in the nature of the work which the cleaning of a

snow-covered step demands.’
6.Weaving in case quotes helps to bring your answer alive. You

examiner will enjoy reading relevant quotes.
It may be possible for Bazza to be successful in his action.
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Ethan
Although this person was given initial permission to enter the college,
the situation has since changed.
Initial permission can be limited in three ways. The occupier may

permit the visitor to only enter certain parts of the building (Gould v
McAuliffe [1941] 2 All ER 527). Permission can also be limited to
certain length of time, or for a particular purpose (Hillen and
Pettigrew v ICI (Alkaki) Ltd [1936] AC 65).
Ethan, a ‘victim of macho male diving syndrome’ (Tomlinson v

Congleton Borough Council [2003] 3 WLR 705), has blatantly strayed
beyond his permitted boundary. 7. Not so much a ‘slide down the
bannisters’ (The Calgarth [1927] P 93 Coram) as a dive in the (empty)
pool. Consequently, he will not meet the criteria of OLA 1957. Instead
we need to turn our attention to the Occupiers’ Liability Act of 1984.
7.There are several recent cases which incorporate this famous

phrase; you may like to consider using them alongside the
original.
8.Under s. 1(3)(a) of this Act, the occupier must be aware of the

danger or have reasonable grounds to believe it exists. In Rhind v
Astbury Water Park Ltd, the action failed as the claimant could not
prove that the danger was visible. Here, the danger—an unfilled
swimming pool—is clearly visible, and consequently within the
occupier’s knowledge.
8.All aspects of the three-part test in OLA 1984 must be met if the
claimant is to be successful.
Under s. 1(3)(b), however, the occupier must expect the trespasser to

‘come into the vicinity’. The doors have been locked, and the only (p.
95) method of entry to the pool area is through a window. In Ratcliffe
v McConnell, the claimant failed, but not by reason of his unorthodox
entry. Even the lack of a warning sign did not assist him. Their
Lordships were of the opinion that the defendants were not under any
duty to warn of the risk of diving into shallow water as this was ‘a risk
of which any adult would be aware’ per Stuart-Smith LJ.
9.This was confirmed in Tomlinson v Congleton Borough Council,

indicating that Ethan, one of approximately twenty-five 25-year-olds
who break their necks each year in similar circumstances, will have
very little chance of establishing Alldred’s liability for his accident.
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9.It is worth looking at the law in context in this area. This helps
to make the statute and case law, that you have so carefully
studied, relevant to everyday actions.
Fay
Fay has a more optimistic prospect. Although she has left her
permitted area, and appears to be a trespasser, as she is a minor she
may be afforded protection under OLA 1957 s. 2(3)(a), by virtue of
the fact that children are ‘less careful’. Under the common law, if
there is an ‘allurement’ on the premises (Glasgow Corporation v
Taylor), there will be a good cause of action. 10. Lifting gym
equipment, not dissimilar to raising abandoned boats (Jolley v Sutton
Borough Council [2000] 1 WLR 1082), would certainly be considered
a foreseeable of risk, with regards to children.
10.Discuss OLA 1984, but also look at current law in relation to

children.
In tandem with this, to a certain extent the Act allows an occupier to

limit his liability to visitors. However, s. 65(2) Consumer Rights Act
2015 specifies that: ‘a person is not to be taken to have voluntarily
accepted any risk merely because the person agreed to or knew about
the term or notice.’ A locked door would have been a more suitable
solution in these circumstances.
However, a potential problem for Fay is that the courts will expect
parents to take responsibility for their children (Phipps v Rochester
Corporation [1955] 1 QB 450, and more recently in Bourne Leisure v
Marsden [2009] EWCA Civ 671). Despite Fay being older then the
children in these cases, parental supervision has clearly not been
sufficient, and this may jeopardize Fay’s claim.
■ There is an abundance of case law in this area, but do not forget

to focus on the essential House of Lords/Supreme Court decisions.
■ You may wish to spend more time writing about the legal
relationship of the two occupiers, and why, in an insurance-related
way, it will be important to tie in the County Council.
■ Consider the relationship of the law in this area and children.
There is an interesting overlap between the Acts and case law
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here. A sophisticated answer will spend some time considering

this.
(p. 96) Question 3
Multimillion plc own a building and contract with Shambles Ltd to

demolish it. Shambles Ltd are responsible for the security of the site
and they leave it unattended on Sundays when work is not in
progress. The site is protected by a perimeter fence topped with razor
wire.
During working hours, Sven, an electrician from another company,

has been called to the site to repair a defective generator. He is told
by a security guard that he must report to the site office in order to
be provided with protective headgear to guard against any risks
present on the demolition site, especially the possibility of debris
falling from overhead operations which are in progress.
Sven sees the defective generator and decides to make a preliminary

inspection before reporting to the site office. As he approaches the
generator, Sven stumbles over a drainage pipe left on the ground and
as he limps to the site office he is struck by a brick which falls off a
wall.
As a result of these incidents Sven suffers head and leg injuries. A few
days after the event, Shambles Ltd put up a notice near the site office
which states clearly that visitors should keep their eyes on the ground
to avoid tripping over articles left temporarily on the site.
On Sunday, Fabio, aged 20, decides to enter the site to take scrap
metal to exchange for cash. He climbs over the tall fence but falls off
because the top strand of wire is loose, and breaks an arm. As he tries
to recover a handful of brass fittings, he slips into a deep trench and
is injured.
Advise Multimillion plc and Shambles Ltd as to their potential

liability under the OLA 1957 and the OLA 1984.
Caution
■ In an examination, there is often the temptation to use a short

version of each of the sections of the Acts. Concentrate on
expressing the key elements of the sections, whilst writing your
answer. For example, in s. 2(4)(a) the warning must be sufficient
to enable the visitor to be reasonably safe, not to be safe. There is
a significant legal difference here.
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■ Answers should contain reference to those cases which address

broad issues of principle.
Suggested Answer
Both the OLA 1957 and the OLA 1984 deal with harm arising from
dangers due to the state of the premises rather than activities on the
premises: see Fairchild v Glenhaven Funeral Services Ltd [2002]
UKHL 22. 1. Under the 1957 Act an occupier who employs a
subcontractor will only be liable for damage caused by the contractor
if it affects the state of the premises.
1.This question centres on the liability of contactors and whether

their actions have been sufficient to avoid liability.
Both the OLA 1957 and the OLA 1984 require a danger arising from
‘the state of the premises’, which was said to signify something
unusual and dangerous for that type of premises in Tomlinson v
Congleton Borough Council [2003] UKHL 47 with the result that
it was held that no such risk was posed by a lake if it was just like any
other lake, that is shallow at the margin with muddy water and
uneven depth. But if the lake possesses some unusual feature it may
Page 16 of 21


pose such a risk: Rhind v Astbury Water Park [2004] EWCA Civ
756. Here, a building site could be regarded as no different to any
(p. 98) other building site with no additional risks, but the fence had
a loose strand of wire which suggests that it is defective and this
could pose additional risk.
Under the OLA 1957 a duty is automatically owed by an occupier to

visitors, but under the OLA 1984 the duty may be owed to non-
visitors only provided certain preconditions are satisfied. In Wheat v
Lacon & Co [1966] AC 552 it was held that it is possible for there to
be more than one occupier of premises as different people may
control different parts of the same premises. 2. Here it is likely that
both Multimillion plc and Shambles Ltd will be occupiers and that
each will owe a duty dependent upon their degree of control and its
nature.
2.Conclude as you are going along, so that you are not left with a
series of unanswered issues at the end of your work.
Once it is decided that both parties may be occupiers then under the
OLA 1957 the common duty of care will be owed towards visitors.
But is Sven a visitor? It is important that an implied licensee does
only those activities the implied licence extends to, otherwise the
occupier will owe no duty of care (Harvey v Plymouth City Council
[2010] EWCA Civ 860). He has been told to report to the site office,
but as he does not do so this may make him a non-visitor outside the
scope of the OLA 1957. If Sven is a visitor, he is owed the common
duty of care, under s. 2(1). Under s. 2(2), this is a duty to take such
care as is necessary to see that the visitor is reasonably safe in using
the premises for the purposes for which he is invited by the occupier
to be there.
Multimillion plc are not answerable for damage caused by any work
of construction, maintenance, or repair by an independent contractor
if, in the circumstances of the case, it was reasonable to entrust the
work to an independent contractor and if such steps as are
reasonable have been taken to ascertain that the contractor was
competent and the work was properly done: OLA 1957, s. 2(4)(b). 3.
In Ferguson v Welsh [1987] 3 All ER 777, it was held that
demolition fell within the scope of s. 2(4)(b) so it will be reasonable
to entrust demolition to an expert and Multimillion plc will have to
show that they had exercised reasonable care in selecting the
independent contractor. If the contractor does technical work which
the occupier cannot be expected to check, the occupier can be
expected to do no more than check that the contractor is competent:
Haseldine v Daw & Sons Ltd [1941] 2 KB 343. However, very
complex work, such as a major building project, may require
Page 17 of 21


specialist supervision: AMF International Ltd v Magnet Bowling

Ltd [1968] 2 All ER 789. Accordingly it is suggested that
Multimillion have discharged their duty of care since it would not be
reasonable to expect them to employ another contractor, such as an
architect, to supervise the work.
3.This is a sophisticated issue to address, so back up your

arguments with reference to a variety of case law.
Since Shambles Ltd, as demolition contractors, have responsibility for

the security of the site, it is assumed that they have control of the
premises and are occupiers: AMF International Ltd v Magnet
Bowling Ltd.
The duty under the OLA 1957, s. 2(2) is to take steps to ensure that
the visitor is reasonably safe for the purposes for which he is (p. 99)
invited or permitted to be there. A visitor can be made safe by means
of a warning that a risk exists, but the warning must be such as would
enable the visitor to be reasonably safe: s. 2(4)(a). The warning
given to Sven by Shambles regarding the risk of tripping over a pipe
is non-specific. 4. If Sven had gone to the site office, he would have
been provided with a hat, which might have protected him from
falling rubble, but it would have had little effect in relation to the risk
of harm resulting from tripping over a pipe. The risk of tripping over
a pipe might be regarded as obvious. However, Sven might argue that
the subsequent erection of a notice warning of the danger which has
resulted in his injury is some admission of liability.
4.You will see that the two different incidents raise different
discussion points, so make the most of this when addressing your
answer.
If Sven is a trespasser he will be in the same position as Fabio as a

non-visitor outside the scope of the OLA 1957. Under the OLA 1984,
s. 1(3) there are three criteria to be satisfied before a duty of care
will be owed by an occupier to a non-visitor. First, Shambles Ltd must
be aware of the danger or have reasonable grounds for believing that
it exists: s. 1(3)(a). Here the danger due to the state of the premises
has already been identified (see Tomlinson v Congleton Borough
Council [2003] UKHL 47 and Rhind v Astbury Water Park [2004]
EWCA Civ 756). In Sven’s case an occupier would be aware of the
dangers inherent in a building site such as the falling brick and the
pipe, whereas in Rhind, as a matter of objective fact, the occupier
Page 18 of 21


could not have been expected to be aware of the danger hidden at the
bottom of the murky lake.
Secondly, Shambles Ltd must have known or must have had

reasonable grounds to believe that the particular non-visitor is in, or
may come into, the vicinity of the danger: OLA 1984, s. 1(3)(b).
They know that Sven is on site and must be aware that he is or may
come into the vicinity of the danger. However, there would have to be
evidence that a trespasser such as Fabio would have been anticipated
at that time. In Higgs v Foster [2004] EWCA Civ 843 it was not
anticipated that a trespassing police officer would enter a bus depot
and come into the vicinity of an uncovered inspection chamber into
which he fell.
5.The third requirement is that Shambles Ltd must be aware that the
risk is one against which they could reasonably be expected to offer
the particular non-visitor some protection: s. 1(3)(c). This may
require consideration of the practicality of taking greater
precautions, the utility of the defendant’s behaviour, and the nature of
the claimant’s behaviour: Tomlinson v Congleton Borough
Council. In Tomlinson, diving into a lake was regarded as normal
activity so that an occupier would not be expected to take special
precautions for the benefit of visitors. It would seem to follow that the
same should also be the case for non-visitors.
5. If you are looking for extra marks, address issues of policy in

your answer. Here would be a good place to incorporate academic
literature.
Where a duty is owed, it must also be shown that there has been a
breach and under the OLA 1984, s. 1(4). Shambles Ltd must take
reasonable care to ensure that the non-visitors do not suffer personal
injury or death due to the danger arising out of the state of the (p.
100) premises. For the purposes of lawful visitors, obvious risks,
such as the presence of razor wire, do not need to be warned of, so
the same ought to be the case for non-visitors.
6.Shambles Ltd may argue that under the OLA 1984, s. 1(5) they
have discharged their duty by taking sufficient steps to discourage
Fabio from taking the risk in the first place. They have erected a
fence which is topped with razor wire. Causation may also be an issue
to the extent that Fabio may have been so intent on theft that he
would not have been deterred even if the fence had not been faulty.
Page 19 of 21


6.You might want to consider the issue of volenti non fit injuria
under OLA 1984. Could this be used as a defence in preference to
contributory negligence in this scenario?
Finally, it could be argued that Fabio and Sven are contributorily

negligent, having failed to take reasonable precautions for their own
safety and having been in part a cause of the harm they suffer: Jones
v Livox Quarries [1952] 2 QB 608.
■ Remember that a claimant can sue in occupiers’ liability

alongside the tort of negligence and contract law if applicable. Be
aware of a range of defences to use in these situations.
■ Incorporate policy rationale where you get an opportunity.
Taking Things Further

■ Buckley, R., ‘Occupiers’ Liability in England and Canada’ (2006) 35
Common Law World Review 197.
This is an article which adopts a comparative approach to the law in

England and Canada.
■ Jones, M., ‘The Occupiers’ Liability Act 1984’ (1984) 47 MLR 359.
■ Law Commission Report No. 75, Report on liability for damage or

injury to trespassers and related questions of occupiers’ liability, Cmnd
6428, 1976.
Law Commission Reports are always useful to read. Although the law
changed some time ago, the reasons for introducing the 1984 Act will
become apparent from reading this.
■ British Transport Police, Trespass Statistics 2018 http://

www.btp.police.uk/pdf/trespass%20stats%202018.pdf
Recent statistics which highlight a contemporary problem.
Online Resources
www.oup.com/uk/qanda/
Page 20 of 21


Go online for extra essay and problem questions, a glossary of key

terms, online versions of all the answer plans and audio commentary
on how selected ones were put together, and a range of podcasts
which include advice on exam and coursework technique and advice
for other assessment methods.
Page 21 of 21


Chapter-7 Occupiers' LiabilityAuthor(s) - DR Karen Dyer

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7.

Concentrate Questions and Answers Tort

Publisher: Oxford University Press Published in Print: May 2019

Chapter: (p. 85) 7. Occupiers’ Liability

Author(s): Dr Karen Dyer

Are You Ready?

In order to answer questions on this topic, you need an understanding

• Occupiers’ Liability Act 1957 (OLA 19 [1957] 57)

• Excluding or restricting negligence liability under s. 65

Current law provides greater protection for ‘visitors’ as opposed to

(p. 86) Question 1

Pleasureland Ltd own and operate Thrill Towers, an entertainment

All possible precautions are taken in the interests of safety. This

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Subscriber: Oxford Brookes University; date: 07 July 2021

independent contractor. Both Adam and Bronwen are seriously

Advise on the potential liability of Pleasureland Ltd and

■ This question clearly states, ‘advise under the Occupiers’

(p. 87) Diagram Answer Plan

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Subscriber: Oxford Brookes University; date: 07 July 2021

when assessing potential liability of Pleasureland Ltd and Kidikicks

2.A good answer focuses on advising the relevant parties rather

There is no definition of ‘premises’ contained in the statute, although

Here, there appear to be have two occupiers, Kidikicks and

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Subscriber: Oxford Brookes University; date: 07 July 2021

4.Select important facts mentioned, and address them. Remember

As regards Adam and Kidikicks, the position is more complex, since,

In Tomlinson v Congleton Borough Council [2003] UKHL 47 the

If either Act is to apply, the danger complained of must arise from

5.The law in the area is fascinating, but remember you are

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Subscriber: Oxford Brookes University; date: 07 July 2021

been a breach of that duty is the same as at common law, taking

6.As the question specifies occupiers’ liability, do not be tempted

Any potential liability of Sparky would be considered under

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Subscriber: Oxford Brookes University; date: 07 July 2021

8.It is useful to discuss case law facts if you are distinguishing a

Kidikicks may be able to rely on the defence of contributory

If Adam is treated as a trespasser, he is a non-visitor, and therefore

Exclusion notices are permitted by the OLA 1957 in relation to

9.In conclusion, in assessing overall liability, both Pleasureland Ltd

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Subscriber: Oxford Brookes University; date: 07 July 2021

9.Conclude by referring back to the question. Who were you

Looking for Extra Marks?

■ Occupiers’ liability problem questions tend to be rather lengthy,

Stepford College is managed by Mr Alldred the principal, under the

During a performance of the show, Bazza, who is helping out in the

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Subscriber: Oxford Brookes University; date: 07 July 2021

(p. 92) Diagram Answer Plan

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Subscriber: Oxford Brookes University; date: 07 July 2021

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For the claims to be assessed under the terms in OLA 1957, it is