PastPaperHero | Occupiers' liability - Common duty of care and its breach

Learning Outcomes

This article explores the common duty of care owed by occupiers to lawful visitors under the Occupiers' Liability Act 1957. It details who qualifies as an occupier and a visitor, the standard of care required, and how this standard varies for different types of visitors, such as children and skilled workers. It also examines factors constituting a breach of this duty, including the role of warnings and the liability for independent contractors. A firm understanding of these concepts is essential for addressing scenarios where injury arises from dangers due to the state of the premises or things done or omitted on them, recognising that the duty is to keep visitors reasonably safe for the purpose of their visit rather than to guarantee the premises are hazard-free. This includes appreciating when obvious risks require no warning, when parental supervision and child allurements shift risk management, how occupation differs from activity liability, and how statutory controls restrict exclusion notices for death or personal injury.

SQE1 Syllabus

For SQE1, you are required to demonstrate understanding of the legal rules concerning occupiers' liability towards lawful visitors and to apply the core principles of the Occupiers' Liability Act 1957 effectively, with a focus on the following syllabus points:

Identifying who constitutes an 'occupier' and a 'visitor'.
Understanding the scope and standard of the 'common duty of care' owed to visitors under OLA 1957, s 2(2).
Recognising how the standard of care is adjusted for specific categories of visitors, particularly children and skilled workers.
Determining the circumstances that constitute a breach of the common duty of care.
Evaluating the effectiveness of warnings in discharging the occupier's duty.
Understanding the occupier's liability concerning dangers created by independent contractors.
Distinguishing occupancy duty from activity-based liability and appreciating that OLA 1957 focuses on dangers due to the state of the premises or things done or omitted on them (s 1(1)).
Applying statutory limits on exclusion notices: business occupiers facing the Unfair Contract Terms Act 1977 and traders the Consumer Rights Act 2015, especially the prohibition on excluding liability for death or personal injury.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Who is considered an 'occupier' under the Occupiers' Liability Act 1957?
1. Only the legal owner of the premises.
2. Anyone physically present on the premises.
3. Anyone with a sufficient degree of control over the premises.
4. Only the tenant leasing the premises.
What is the 'common duty of care' owed to visitors under OLA 1957?
1. To ensure the premises are completely safe at all times.
2. To take reasonable care to ensure the visitor is reasonably safe for the purposes of their visit.
3. To warn visitors of every possible danger.
4. To compensate visitors for any injury sustained on the premises, regardless of fault.
How does the duty of care owed to child visitors differ from that owed to adult visitors?
1. There is no difference; the same standard applies.
2. Occupiers owe a lower standard of care to children.
3. Occupiers must be prepared for children to be less careful than adults.
4. Occupiers are strictly liable for any injury to a child visitor.
Can an occupier discharge their duty of care by employing an independent contractor to carry out work?
1. Yes, always, as the contractor becomes solely responsible.
2. No, the occupier always remains fully liable.
3. Yes, provided the occupier acted reasonably in entrusting the work and ensuring the contractor was competent.
4. Only if the contractor provides an indemnity.

Introduction

When individuals enter premises controlled by others, the law imposes specific duties on the person in control (the occupier) to ensure the safety of those entrants. The Occupiers' Liability Act 1957 (OLA 1957) governs the duty owed by occupiers to their lawful visitors. This article focuses on understanding this 'common duty of care', identifying who owes the duty and to whom, the standard required, and the factors that determine whether that duty has been breached. A firm understanding of these concepts is essential for addressing SQE1 questions concerning injuries sustained on premises due to their condition.

An important orienting point is that OLA 1957 regulates dangers “due to the state of the premises or to things done or omitted to be done on them” (s 1(1)). Liability is rooted in occupancy, not simply in any activity happening to take place there. If harm stems from a negligent “activity” (for example, an employee’s careless act unconnected to the premises’ condition), an ordinary negligence claim may be the correct route rather than OLA 1957. By contrast, defects, hidden drops, slippery surfaces or poorly maintained structures are typical OLA matters.

The Occupier and Premises

The OLA 1957 imposes duties on the 'occupier' of 'premises'. Neither term is exhaustively defined in the Act, relying instead on common law interpretation.

Who is an Occupier?

The key test for identifying an occupier is the degree of control they exercise over the premises. Ownership is not determinative; control is essential.

Key Term: Occupier
A person who has a sufficient degree of control over premises to the extent that they ought to realise that any failure on their part to use care may result in injury to persons coming lawfully upon the premises.

This means there can be more than one occupier of the same premises simultaneously, each potentially owing a duty of care relative to their sphere of control (Wheat v E Lacon & Co Ltd [1966] AC 552). In practice:

A landlord may be an occupier of common parts while a tenant is an occupier of their demise.
A managing contractor exercising site control can be an occupier alongside the owner.
A public authority with control (even without physical possession) can be an occupier where it has legal control of access (for example, a local authority responsible for a vacant building scheduled for demolition, if control has passed to it).

Occupier status is functional: ask who actually controls conditions and entry in the relevant area at the time of the accident.

What are Premises?

The term 'premises' under the OLA 1957 is broad. Section 1(3)(a) includes 'any fixed or moveable structure, including any vessel, vehicle or aircraft'. This encompasses not just land and buildings but also temporary structures like scaffolding or even ladders.

Key Term: Premises
Includes land, buildings, and any fixed or moveable structure, such as vessels, vehicles, or aircraft, over which an occupier exercises control.

This wide definition has covered items ranging from grandstands and spring boards to inflatable sculptures and lifts. The breadth reinforces that an occupier’s duty applies to the physical state or configuration of the thing used by the visitor.

Lawful Visitors

The common duty of care under the OLA 1957 is owed specifically to 'visitors'.

Key Term: Visitor
A person who has express or implied permission from the occupier to be on the premises, or who enters pursuant to a legal right (eg, under contract or statute).

Visitors include:

Invitees: Persons entering with the express permission of the occupier (e.g., guests invited to a house).
Licensees: Persons entering with the implied permission of the occupier (e.g., a person walking up a path to knock on the front door, a customer entering a shop).
Contractual Entrants: Persons entering under a contract (e.g., paying guests at a hotel, ticket holders at an event).
Legal Right of Entry: Persons entering under a legal power (e.g., police officers with a warrant, meter readers).

Implied permission is limited to the areas and purposes reasonably contemplated by the occupier. A person can be a visitor in one part of premises and a trespasser in another; exceeding the bounds of permission by entering “Staff Only” areas, or by using areas for activities outside permission, may turn a visitor into a trespasser. The status of certain entrants—for instance hospital patients who stray—can remain as visitors if the occupier could reasonably foresee that their condition might lead to wandering, but the key point remains: scope is defined by purpose and place.

The Common Duty of Care (OLA 1957)

Section 2(2) of the OLA 1957 defines the core duty:

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

This duty focuses on keeping the visitor reasonably safe, not necessarily making the premises absolutely safe. The standard is that of the 'reasonable occupier'. It is purpose-specific: the visitor must be safe "for the purposes" of their visit. If a visitor uses the premises for a different or prohibited purpose (for example, climbing a barrier to access maintenance platforms, or swimming in a pond marked “No Swimming”), they may leave the scope of the common duty.

The Act is directed at dangers “due to the state of the premises or to things done or omitted to be done on them.” In practice, a court will consider how the state of the premises (or omissions about that state) interact with the nature of the visitor’s permitted use.

Breach of the Common Duty of Care

Determining whether the occupier has breached the common duty of care involves assessing if their conduct fell below the standard of a reasonable occupier in the circumstances. The analysis tracks negligence principles and the statutory phrasing “in all the circumstances of the case”:

Likelihood and Severity of Harm: The greater the probability and seriousness of injury, the greater the precautions expected. A very low probability may require limited precautions (eg, balls occasionally exiting a cricket ground), but if the potential injury is grave (eg, total blindness), the reasonable occupier is expected to do more (e.g., provide goggles).
Cost and Practicability of Precautions: Measures must be reasonable, proportionate and practicable. Where inexpensive and straightforward steps markedly reduce risk, omitting them points to breach; where steps would be costly and yield minimal risk reduction, failure to take them may be reasonable (Latimer v AEC Ltd [1953] AC 643).
Obviousness of the Danger: Occupiers need not warn against very obvious risks—e.g., the danger of drowning in open water or slipping on clearly wet algae—because adult visitors can be expected to appreciate obvious hazards (Staples v West Dorset DC [1995] PIQR P192; Darby v National Trust [2001] EWCA Civ 189).
Duration and Visibility of the Danger: How long a hazard has existed and whether it was readily apparent influences what steps were reasonable—longstanding hidden defects may demand inspection or signage; transient conditions may justify temporary measures.
Type and Purpose of Visitor: The standard adjusts for visitors’ characteristics and reasons for presence. Children are less careful; skilled visitors are expected to guard against risks ordinarily incident to their calling. An occupier owes reasonable care tailored to those foreseeable traits and purposes.
Social Value and Desirability of Activity: Courts may give some latitude where efforts support socially valuable activities (emergency services, public events), balanced against safety (Watt v Hertfordshire CC [1954] 1 WLR 835). Section 1 of the Compensation Act 2006 allows regard to whether precautions would discourage socially desirable activities.

Children (s 2(3)(a))

The Act specifically requires occupiers to be prepared for children to be less careful than adults. This imposes a higher standard where children are expected visitors. Occupiers must guard against 'allurements' that might attract children to danger (Glasgow Corporation v Taylor [1922] 1 AC 44). Planting or leaving attractive but dangerous features (eg, bright berries, abandoned boats, construction trenches) where children are likely to roam requires additional precautions such as fencing, signage, or removal of the temptation.

However, the law also expects parents to exercise reasonable supervision over very young children (Phipps v Rochester Corporation [1955] 1 QB 450). Where a prudent parent would not allow small children to roam unsupervised on land hazardous by its nature (e.g., building sites), an occupier can reasonably expect that very young children will be supervised. For older children approaching adult understanding (e.g., teenagers trespassing near railways), courts have recognised that some dangers are sufficiently obvious that the occupier’s duty is limited.

Practical considerations for children:

Identify features likely to draw children (ponds, derelict structures, unusual items).
Add barriers or relocate the hazard where reasonably practicable.
Use clear warnings addressed to supervising adults. For very young children, consider physical discouragement measures rather than signage alone.
Consider how the site is used (parks, playgrounds, routes to schools) and tailor measures accordingly.

Skilled Visitors (s 2(3)(b))

Occupiers are entitled to expect that a person exercising their professional skill (e.g., an electrician, a chimney sweep) will appreciate and guard against risks ordinarily incident to that calling (Roles v Nathan [1963] 1 WLR 1117). This moderates the duty owed, but only in respect of risks ordinarily incident to the skilled activity. The occupier remains responsible for non-specialist risks not ordinarily incident to that calling (e.g., structural defects unrelated to the expert’s task). If the danger lies outside the competence of the visitor’s skill, the occupier owes the usual duty.

Worked Example 1.1

An experienced electrician is called to fix wiring in an old house. While accessing the attic, they fall through a rotten floorboard concealed by insulation. Is the occupier liable?

Answer:
Potentially yes. While the electrician is a skilled visitor expected to handle electrical risks (s 2(3)(b)), the risk here relates to the structural state of the premises (rotten floorboard), not directly to their electrical skill. The common duty of care (s 2(2)) would apply, requiring the occupier to take reasonable steps regarding the safety of the access route, considering if the danger was known or foreseeable.

Warnings (s 2(4)(a))

An occupier can potentially discharge their duty by giving a warning. However, the warning must be sufficient, in all the circumstances, to enable the visitor to be reasonably safe. A simple 'Danger' sign might be insufficient for a hidden or complex hazard. The warning must be clear and specific enough for the particular risk and visitor. An ineffective warning means the duty is likely breached.

Assess warning adequacy by:

Clarity and prominence (location, size, visibility, lighting).
Specificity to the risk (eg, “Very hot water” versus general cautions).
Audience needs (language, pictograms; whether children or non-English speakers frequent the site).
Feasibility of physical measures if warning alone is inadequate (barriers, locks).

Courts have found no duty to warn against obvious dangers to adults (open water drowning risks) and have imposed liability where hidden drops (e.g., an unguarded sheer drop) were not reasonably signposted. For children, mere signage may be insufficient; physical measures to discourage access may be required.

Warnings differ from exclusion notices. A warning helps keep visitors reasonably safe; an exclusion notice attempts to restrict, modify or exclude liability under s 2(1), which is only effective “in so far as the occupier is free to do so.” Statutory controls limit exclusions:

Business occupiers dealing with non-consumers are subject to the Unfair Contract Terms Act 1977: liability for death or personal injury resulting from negligence cannot be excluded (s 2(1)); other exclusions must be reasonable (s 2(2), s 11).
Traders dealing with consumers are subject to the Consumer Rights Act 2015: liability for death or personal injury resulting from negligence cannot be excluded (s 65); other terms or notices must be fair (s 62).
Private, domestic occupiers outside these regimes may exclude certain liabilities, but general negligence rules still apply, and any notice must be brought to the visitor’s attention and cover the loss in question.

Independent Contractors (s 2(4)(b))

If a visitor is injured due to faulty work carried out by an independent contractor, the occupier is not liable if they acted reasonably in:

Entrusting the work to the contractor.
Taking reasonable steps to satisfy themselves the contractor was competent.
Taking reasonable steps to satisfy themselves the work was properly done.

The level of checking required for point 3 depends on the complexity of the work. Technical work may require less checking by the occupier (Haseldine v C Daw & Son Ltd [1941] 2 KB 343), whereas simpler tasks might demand more oversight (Woodward v Mayor of Hastings [1945] KB 174). Reasonableness depends on the nature of the danger and the occupier’s knowledge and capacity:

For specialist technical tasks (lift maintenance, complex electrical systems), engaging reputable engineers and verifying credentials often suffices.
For straightforward tasks (clearing ice, fixing loose handrails), a reasonable occupier should verify the result is safe (eg, surface not left slippery; railing secure).
Competence checks may include references, professional accreditation, trade association membership, insurance and prior work history. It is prudent to retain records of checks performed.

Section 2(4)(b) applies to "work of construction, maintenance or repair." If an occupier delegates such work and takes reasonable steps under the three limbs, they may be relieved of liability for the contractor’s negligence. If they fail, or if the work falls outside construction/maintenance/repair, the occupier’s duty may persist.

Worked Example 1.2

A homeowner hires 'Bob's Budget Builders' (found online, no checks made) to repair a loose balcony railing. Bob does a poor job, and the railing later gives way, injuring a visiting guest. Is the homeowner liable?

Answer:
Likely yes. While entrusting repair work might be reasonable, the homeowner failed to take reasonable steps to ensure Bob was competent (no checks made). Furthermore, depending on the visibility of the poor repair, they may have failed to reasonably check the work was properly done. Therefore, the occupier likely remains liable under s 2(4)(b).

Worked Example 1.3

A heritage site includes a walkway with a sharp, unguarded drop at its end. There are no barriers; an ambiguous sign at the corridor entrance reads “No entry—danger, strictly private—keep out,” but the door is frequently left ajar and visitors occasionally wander through. A visitor enters, slips, and falls down the drop. Does a warning discharge the duty?

Answer:
Probably not. A general sign at the entrance may be inadequate for a hidden, serious hazard, particularly if the door is habitually left open and the area appears accessible. The occupier should have ensured the door was kept locked or installed barriers and posted clear, targeted warnings at the hazard point. Failure to implement effective measures suggests breach.

Worked Example 1.4

A park includes a lake where adults sometimes ignore “No swimming” signs and enter the water. A competent adult drowns. Is the occupier in breach for failing to post additional warnings or lifeguards?

Answer:
Likely no breach. The risk of drowning in open water is an obvious danger to adult visitors. A sign warning “No swimming” is adequate; occupiers are not required to warn of obvious risks or provide lifeguards where the danger is apparent. The duty is to keep visitors reasonably safe, not to eliminate all risk.

Revision Tip

Remember that the common duty of care is about ensuring the visitor's safety for the purpose of their visit. If a visitor uses the premises for an unauthorised purpose, they may lose their status as a visitor and the protection of the OLA 1957.

The above principles often converge. For instance, where a hazard is obvious and longstanding, adult visitors may be expected to avoid it; but where it is concealed or unusually dangerous, warnings or barriers are called for. With children, think allurements and physical measures beyond signage. With skilled workers, consider whether the risk is part of their calling or is a general structural defect.

Finally, remember that OLA 1957 concerns occupancy-based liability. Where harm is caused by negligent activities (for example, a staff member’s careless operation of machinery injuring a patron), an ordinary negligence claim may be appropriate rather than an OLA claim. The distinction helps to frame the correct analysis and avoid conflating duties.

Key Point Checklist

This article has covered the following key knowledge points:

Occupiers' liability to lawful visitors is governed by the Occupiers' Liability Act 1957.
An 'occupier' is defined by the degree of control they exercise over the 'premises'.
A 'visitor' is someone with express or implied permission, or a legal right, to be on the premises.
The 'common duty of care' requires the occupier to take reasonable steps to ensure the visitor is reasonably safe for the purpose of their visit.
The standard of care is objective but adjusted for children (higher standard expected of occupier) and skilled visitors (expected to guard against risks of their calling).
Warnings must be sufficient to enable the visitor to be reasonably safe; no duty to warn of obvious risks to adults.
Occupiers can avoid liability for dangers created by independent contractors if they acted reasonably in selecting and overseeing them, considering the complexity of the task.
OLA 1957 addresses dangers due to the state of the premises or things done or omitted on them; activity negligence may fall outside the Act.
Exclusion notices are controlled by UCTA 1977 and CRA 2015: liability for death or personal injury resulting from negligence cannot be excluded; other exclusions must be reasonable or fair.

Key Terms and Concepts

Occupier
Premises
Visitor
Common Duty of Care

Occupiers' liability - Common duty of care and its breach