Occupiers liability

A person who occupies land or other property, such as a homeowner, tenant, farmer, shopkeeper, hotel owner or other business person, can be held liable for injury to a person who is on the premises. This is known as "occupiers liability."

Duty of care owed to authorised visitors

The Occupiers Liability Act 1957 provides that an occupier has a 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."

So shopkeepers, for example, have a duty to ensure customers who enter their shops to browse and make purchases are reasonably safe while they're doing so. If there's a hazard in a part of the shopping area, she will need to cordon off the area or take other precautions to ensure that a customer is not exposed to it.

One of the precautions the shopkeeper might take to prevent customers from encountering a hazard is to give a warning. Under the 1957 Act, a warning can be an effective means of meeting an occupier's duty of care, provided that the warning is sufficient to keep the visitor safe.

Where an occupier invites or permits children to come onto his premises, his duty of care is, in effect, increased so as to require that the measures he takes to ensure their safety takes into account the fact that they're children. So, for instance, a written notice warning of an electric fence in the play area of a pre-school would probably not fulfil the duty of care!

The 1957 Act also requires an occupier to guard against hazards that might be of particular concern for workers coming on to the premises. Plumbers and electricians, for example, often need to go into crawl spaces or other awkward places as part of their work. If that's the case, the occupier will have a duty to take measures to ensure those areas are safe for the workmen – even though the occupier would not necessarily have a duty to do so for other visitors who would not be expected to go into those areas.

It is also worth noting that a visitor can agree to accept a risk. Sometimes occupiers of certain types of premises (go-kart tracks, for instance) will require visitors to sign a release or similar document in which they agree to accept certain risks. An occupier who intends to use such a release should exercise caution, though, and get professional advice, since even signed releases and waivers can be ineffective in certain circumstances.

Duty of care owed to trespassers

As a first principle, it is important for an occupier to understand that he does have a duty of care to people who trespass on his premises. Although that can seem unjust in some circumstances (since the trespasser who is injured should not have been on the property in the first place) an occupier cannot ignore it. This is especially true where there is a hazard that might be attractive to trespassers – the classic examples being lakes, ponds or outdoor swimming pools.

The Occupiers Liability Act 1984 sets out the occupier's duty of care to trespassers. The duty is to take reasonable care to see that the trespasser is protected from dangers that the occupier knows about and can reasonably expect a trespasser to encounter.

Although some of the recent case law appears to have narrowed the scope of the duty of care that an occupier owes to trespassers, there continue to be circumstances where an occupier can be liable for trespassers' injuries. This is particularly true where children are concerned.

Getting help

A person occupying a high-risk property, such as a house with an unguarded outdoor swimming pool in a neighbourhood full of children, might wish to talk to an insurance company or even a solicitor about how to limit his/her potential liability. Likewise a person who is injured on someone else's land should take advice as to whether there is any basis to claim against the occupier of the property (or his/her insurer, if any).

Resources

• Learn more about personal injury law (Findlaw.co.uk)
• Personal injury law news (The Solicitor)
• Personal injury law Q&A (Community forum)

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