occupier's liability

the liability of the occupier of land, buildings and other premises to those coming on to the premises. The English law has gone through a number of phases resulting in matters now being regulated by the Occupiers' Liability Acts 1957 and 1984. The initial focus is on the nature of the plaintiff. If the plaintiff is a lawful visitor, his rights are governed by the Occupiers' Liability Act 1957. If the plaintiff is a trespasser, his rights are determined by Occupiers' Liability Act 1984. A visitor is someone who has express or implied permission to come on to the premises. Indeed, anyone who enters by virtue of a right given by the law, even if without permission, is entitled to sue under the Act. So, a police officer going to arrest an occupant would be protected. The English law assumes that, generally, a person gives implied permission to people to enter with a view to communicating with the occupier. Visitors are entitled to the common duty of care. The common duty of care is to take such care as in the circumstances is reasonable to see that the visitor will be safe in using the premises for the purposes for which he is invited or permitted to be there. The Act provides some specific guidance. It indicates that an occupier must be prepared for children to be less careful than adults. A person who comes on the premises in pursuance of a calling should appreciate and guard against special risks – so the gas man must be aware of dangers from gas pipes. A warning will not determine liability unless it was enough to enable the visitor to be reasonably safe.

The traditional English law was that there was only liability to a trespasser if there was harm done deliberately or in wilful disregard of the trespasser's safety. The occupier will be liable if he is aware of the danger or has reasonable grounds to believe that it exists; he has reasonable grounds to believe that the defendant is in the vicinity of the danger; and the risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer some protection.

Scotland's native law was restored and enhanced by the Occupiers' Liability (Scotland) Act 1960. It applies a basic standard of reasonable care, which obviously depends upon the circumstances of the case. In particular, a duty is owed to a trespasser like anyone else. The care that an occupier of premises is required, by reason of his occupation or control of premises, to show towards a person entering thereon in respect of dangers that are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall, except insofar as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger. In neither Scotland nor England is occupier defined. In both jurisdictions the common law focuses upon the person who has actual physical control over the premises: Wheat v . E. Lacon & Co. Ltd [1966] AC 552; Telfer v . Glasgow District Council 1974 SLT (Notes) 51.