The term occupier itself is misleading since physical occupation is not necessary for liability to arise.
Occupiers’ liability is perhaps a distinct form of negligence in that there must be a duty of care and breach of duty, causing damage. The rules of remoteness apply to occupiers’ liability in the exact same way that they apply to negligence claims. Liability can arise on occupiers for omissions since their relationship gives rise to duty to take action to ensure the reasonable safety of visitors. The law relating to occupiers liability originated in common law but is now contained in two major pieces of legislation:
Occupiers Liability Act 1957 – which imposes an obligation on occupiers with regard to ‘lawful visitors’
Occupiers Liability Act 1984 – which imposes liability on occupiers with regard to persons other than ‘his visitors’
Different levels of protection are levelled under the two pieces of legislation with a higher level of protection afforded to lawful visitors.
Lawful visitors
Lawful visitors to whom occupiers owe the common duty of care for the purposes of the Occupational Liability Act of 1957 include:
- Invitees – those who have been invited to come onto the land and therefore have express permission to be there
- Licensees – those who have express or implied permission to be there
- Those who enter pursuant to a contract – for example paying guest at a hotel or paying visitors to a theatre
- Those entering in exercising a right conferred by law – for example, a person entering to read the gas or electricity metres
Non-lawful visitors
The 1957 Act does not extend protection to:
- Trespassers
- Invitees who exceed their permission
- Persons on the land exercising a public right of way