The law imposes a duty on occupiers towards their ‘visitors’, meaning that an occupier has a common duty of care towards a visitor – the occupier must ensure that a visitor is reasonably safe when using the premises.

If you have suffered an injury on an occupier’s premises you might be able to bring a claim.

What you will need to prove in order to bring a claim:

Someone seeking to prove occupier’s liability to a visitor must establish a number of important factors. They will need to:

• Establish that they have suffered a loss due to the state of the premises
• Identify the occupier
• Prove that they are a visitor
• Establish that the occupier failed to take reasonable care for safety

We will now go through these points in detail.

Who is an occupier?

Broadly speaking, an occupier is someone who has a sufficient degree of control over a premises. The definition of an ‘occupier’ is widely interpreted, and the test that the courts will apply is one of occupational control.

To be an occupier, you do not necessarily have to own the premises. There can also be more than one ‘occupier’ of the same premises.

An independent contractor, working on another person’s premises, could also constitute an ‘occupier’ whilst on the premises. For example, contractors undertaking a large building development would be classed as occupiers for the duration of the building work.

Who is a visitor?

Essentially, a visitor is someone who enters another person’s premises with that person’s express or implied permission. For example:

• Guests invited round for dinner
• A policeman who enters premises to conduct a search with a valid search warrant
• Someone who is not a trespasser

What does the term ‘premises’ encompass?

The definition of premises is very broad. It includes open land, as well as fixed or moveable structures. It also specifically includes vessels, vehicles or aircraft.

Who is an occupier?

Broadly speaking, an occupier is someone who has a sufficient degree of control over a premises. The definition of an ‘occupier’ is widely interpreted, and the test the courts will apply is one of occupational control.

To be an occupier, you do not necessarily have to own the premises. There also can be more than one ‘occupier’ of the same premises.

An independent contractor, working on another person’s premises, could also constitute an occupier whilst on the premises. For example, contractors undertaking a large building development would be occupiers for the duration of the building work.

Who is a visitor?

A ‘visitor’ is a person who enters another person’s premises with that person’s express or implied permission.

Some examples are:

• A guest invited to dinner
• A theatre goer
• A plumber who enters a house to do a job

A person who exceeds their permission is a ‘trespasser’, however they may still be able to make a claim for occupier’s liability.

Who can make a claim?

A visitor can make a claim against an occupier if there has been a breach of the Common Duty of Care.

The standard of care is that the occupier must take reasonable steps to ensure visitors are reasonably safe during their visit.

Can occupiers avoid liability to visitors?

The occupier may be able to avoid liability for any accident/injury if they have put up adequate warning signs around the property.

The warning should be specific to the nature of the danger, for example, if the water in the taps in the toilets of your office is scalding hot there should be a sign on each washbasin clearly stating ‘DANGER VERY HOT WATER’.

It is not adequate to put up a sign stating ‘ALL VISITORS ENTER AT THEIR OWN RISK’.

Reduction of damages

Where a visitor suffers a loss due to both an occupier’s breach of the Common Duty of Care and their own carelessness, their damages will be reduced for contributory negligence.

Who is a trespasser?

A trespasser is a person who enters another person’s land or premises without express or implied permission. Their presence is either unknown to the occupier, or is objected to.

It does not matter whether the person knows they’re trespassing or not.

It is also important to remember that a person can enter a premises as a ‘visitor’ but then become a ‘trespasser’ either by doing something or going somewhere that exceeds their permission.

Who can make a claim?

Occupiers do not automatically owe a duty of care to trespassers.

In order to establish whether an occupier has breached their duty of reasonable care owed to a trespasser, a number of factors will be considered:

• The nature of the danger (i.e. is it hidden or obvious, and what is the extent of the danger?)
• The age of the trespasser (i.e. are they an adult or a child?)
• The nature of the premises (i.e. how dangerous are they? Is it a private house? Is it a railway line?)
• The extent of the risk (i.e. is there high or low risk of injury?)
• The cost and practicability of precautions (i.e. how easy would it be to remove or reduce the risk, and what would such measures cost?)
• The nature and character of the entry (e.g. is the trespasser a burglar, a child trespasser, or someone who is inadvertently trespassing?)
• The foreseeability of the trespasser (i.e. the more likely people are to trespass, the more precautions must be taken)

If these factors are satisfied, a trespasser may therefore be able to make a claim for damages against the occupier of the premises.

These damages may be negatively impacted by contributory negligence and/or any warnings provided by the occupier.

Children

Child visitors are singled out as requiring a higher degree of care from the occupier than other visitors. An occupier must be prepared for children to be less careful than adults.

For example, while it is reasonable to assume an adult would not eat a washing up tablet, the occupier should take extra steps to ensure the safety of a child who may mistake the tablet for a yummy treat.

An occupier must therefore do even more to safeguard a child’s safety.

Exceptions:

The occupier will not always be liable.

Occupiers will have complied with their duty to a very young child visitor if they make their premises reasonably safe for a child who is accompanied by the sort of guardian by whom the occupier is entitled, in all the circumstances, to expect the child to be accompanied.

Visitors coming onto the premises to exercise their skills:

An occupier can reasonably expect a skilled visitor to appreciate and guard against any risks that are part and parcel of their job. This has the effect of lowering the standard of care expected of the occupier in relation to ‘professionals’.

For example:

• A plumber or electrician
• A chimney sweep

It is reasonable to assume that the risk of a fall was a special risk ordinarily incidental to the work of a window cleaner. Therefore, it is reasonable to assume that the window cleaner would guard against this kind of accident.

Exception:

If the visitor is injured in an unexpected way, meaning it was not ‘part and parcel of their job’, then the occupier may be liable. For example, if a window cleaner falls on a broken step on your property.

The occupier still owes the skilled visitor a duty of care.