Occupiers' Liability in Tort Law: Case Study Analysis and Discussion

This report provides a comprehensive analysis of Occupiers' Liability within the framework of Tort Law. It begins by defining key terms such as 'occupier,' 'visitor,' and 'trespasser,' and outlines the duties of care owed under the Occupiers' Liability Act 1957 and the Occupiers' Liability Act 1984. The report then delves into a specific case study involving a child trespasser injured on a property and a teaching assistant who was also injured. Applying relevant case law, including Jolley v Sutton London Borough Council, The Calgarth, and Donoghue v Folkestone Properties Ltd, the report assesses the occupier's liability towards both individuals. The analysis considers factors such as the foreseeability of harm, the occupier's awareness of danger, and the application of different standards of care for children and adults. The report concludes by summarizing the findings and determining the eligibility of the individuals to claim for damages based on the established legal principles, emphasizing the importance of the occupier's duty of care and the distinctions between visitors and trespassers under the law.

Running head: TORT LAW
TORT LAW
Name of Student
Name of University
Author Note

1TORT LAW
Introduction
The law of tort deals with the compensation for any harm or injury suffered by an
individual on their health, reputation, economic interest, environment or property. Under the
law of tort occupiers’ liability deals with the duty of care that is owed by any individual who
has real ownership over any property by way of either lease or ownership, towards any
individual visiting or trespassing on their property. In England the tort of occupiers’ liability
is governed under the statutory provisions of the Occupiers’ Liability Act 1957 and the
Occupiers’ Liability Act 1984. Even though the law mainly classified the previous common
law, the dissimilarity amongst the terms "visitors" and a "trespassers", and the description of
an "occupier" are mostly provided in the case laws. Premises can be defined as any fixed or
moveable structure which also includes a vehicle, aircraft or a vessel. An occupier could be
defined to be any person having ‘sufficient degree of control’ over the premises to
comprehend that in the failure of that person to demonstrate appropriate duty of care might
affect in instigating injury or harm to any person who visits in the property. Any individual
who has been invited by or has been given permission by the occupier to use the property can
be defined as a visitor. A trespasser is an individual who enters in any property without the
permission of the occupier or the owner of the property. This paper aims to discuss the
aspects of occupiers’ liability and psychiatric injury under the law of tort relating them with
two different case studies.
Occupiers’ Liability
Occupiers’ liability deals with the duty of care that is owed by any individual who has
real ownership over any property by way of either lease or ownership, towards any individual
visiting or trespassing on their property. Occupiers’ liability primarily deals with
accountability that might be seen as arising from misfortunes instigated by the faulty or

2TORT LAW
hazardous situations of the property. In England the tort of occupiers’ liability is governed
under the statutory provisions of the Occupiers’ Liability Act 19571 and the Occupiers’
Liability Act 19842. Although the law mainly classified the previous common law, the
dissimilarity amongst the terms "visitors" and a "trespassers", and the description of an
"occupier" are mostly provided in the case laws. The 1957 Act primarily focusses on the duty
owed by the owner of the property towards a visitor on his property. The 1984 Act, on the
other hand, focusses on the duty of care that an owner owes towards any trespasser on their
property. An occupier can be seen as having a ‘duty of care’ to every people who visit to their
property to maintain a reasonably safe standard in the premises for them, unless they have
been conscious of a precise hazard with the properties, in such a circumstance the occupier is
required to be taking measures for highlighting the hazards which are existing. In their
judgment in Jolley v Sutton London Borough Council [2000]3 the courts defined the term
premises as any fixed or moveable structure which also includes a vehicle, aircraft or a
vessel. The definition of an occupier has not been provided in the common law, however, the
judges in Wheat v E Lacon & Co Ltd [1966]4 provided that an occupier can be described to be
any individual having ‘sufficient degree of control’ over the property to realize that in the
failure of that individual to show proper duty of care might result in causing injury or harm to
any person who visits in the property. This definition has also been affirmed by section 1 (2)
of the 1984 Act. It was further provided in the judgement of Harris v Birkenhead [1976]5 that
to prove that any individual has a control over the property, physical possession of the
property is not necessary. Under section 3 of the 1957 Act any individual who has been
invited by or has been given permission by the occupier to use the property can be defined as
a visitor. In the judgement in The Calgarth [1927]6 case the judges held that an occupier’s
1 Occupiers’ Liability Act 1957
2 Occupiers’ Liability Act 1984
3 Jolley v Sutton London Borough Council [2000] 1 WLR 1082
4 Wheat v E Lacon & Co Ltd [1966] AC 552
5 Harris v Birkenhead Corporation [1976] 1 ALL ER 341
6 The Calgarth [1927]

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duty is to ensure that the property has been made reasonably safe for the use of the visitors
for proper purposes. A trespasser is an individual who enters in any property without the
permission of the occupier or the owner of the property. The provisions relating to the
occupiers' liability towards trespassers have been provided in the 1984 Act. In section 1 (1)
(a) a duty of care has been imposed on the occupier of the property to ensure that any
individual even if not a lawful visitor, does not suffer any kind of harm in their property. As
per section 1 (8), the duty of care of the occupier extends only to the personal injuries and not
to the damages in the properties of the non-visitors. For proving that an occupier owes a duty
of care to a non visitor three factors are required to be established. These three factors are- the
awareness of the occupier of the danger; the knowledge of the occupier that someone might
come in “the vicinity of the danger”; and some kind of protection might be reasonably
expected from the occupier against the risk. These factors were discussed in detail in the
judgment of Donoghue v Folkestone Properties Ltd [2003]7. In the section 2 (3) (b) of the
1957 Act a skilled visitor or a worker is required to be guarding against the risks that are in
association with their task. This provision was also discussed in the judgment of Roles v
Nathan [1963]8. As per section 2 (3) (a) of the 1957 Act an occupier is required to have the
knowledge that children would be less careful than the adults. In this context it was held in
the judgment of Bourne Leisure Ltd v Marsden [2009]9 that an occupier is required to provide
a higher duty of care for the protection of children visiting a trespassing in the their property.
In the given scenario, a 5 year old child wanders off from her school garden into a restricted
property where a danger sign was provided. She had been injured by falling down a set of
broken and unused stairs of a building. In furtherance, Raymond a part time teaching
assistant, seeing Celia lying unconscious jumped over the fence of the building and tripped
on the root of a tree and broke his ankle. The issues that arise in this scenario are what claims
7 Donoghue v. Folkestone Properties Ltd [2003] 2 WLR 1138
8 Roles v. Nathan [1963] 1WLR 1117
9 Bourne Leisure Ltd v. Marsden [2009] EWCA Civ 671

4TORT LAW
do Celia and Raymond have towards the occupier of the building under the Occupiers’
Liabilities Act for the injuries they suffered. Both Celia and Raymond had been trespassers to
the land and hence the liability of the occupier towards them would be under the provisions
of the 1984 Act Applying the judgment of Jolley v Sutton London Borough Coucil [2000]10,
the building falls under the definition of the term premises. Therefore, applying The Calgarth
[1927]11 case the occupier of the building owes a duty of care towards the visitors that can be
considered as reasonably foreseeable. Applying the provision of section 1 (1) (a) of the 1984
Act the occupier also owes a duty of care to any non-visitor or trespasser to the property. By
the application of the judgment of the Donoghue v Folkestone Properties Ltd [2003]12 case in
the given scenario it can be deduced that as the building was disused and restricted therefore,
the occupier was aware of the danger the house possessed; the occupier was also
knowledgeable of the fact that people may visit the building uninvited and had appointed
workers for repairing the building. Applying the judgment in Roles v Nathan [1963]13 in this
scenario it can be observed the workers who are considered as skilled visitors put up a sign
‘DANGER: REPAIRS UNDERWAY’. They further informed the school about the danger
that the tree root possessed. However, applying the judgment of Bourne Leisure Ltd v
Marsden [2009]14 in the given scenario it can be considered that since the building was near a
school therefore a higher degree of care was required from the occupier of the building. As
Celia is a child who was unable to the read the sign therefore, she would be able to claim for
the compensation for any injury she suffered from the owner of the building who failed to
provide adequate care to ensure that no harm is suffered to the children. However, Raymond
is an adult and a trespasser and was aware of the level of danger in the property. Therefore,
he has no claim under the Occupiers’ liability.
10 Jolley v Sutton London Borough Council [2000] 1 WLR 1082
11 The Calgarth [1927]
12 Donoghue v. Folkestone Properties Ltd [2003] 2 WLR 1138
13 Roles v. Nathan [1963] 1WLR 1117
14 Bourne Leisure Ltd v. Marsden [2009] EWCA Civ 671

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Conclusion
In this essay a detailed discussion has been done on the aspects of occupiers’ liability
under the law of tort relating it with one specific case study. The first case study is in relation
to occupiers’ liability. Occupiers’ liability deals with the duty of care that is owed by any
individual who has real ownership over any property by way of either lease or ownership,
towards any individual visiting or trespassing on their property. Occupiers’ liability primarily
deals with accountability that might be seen as arising from misfortunes instigated by the
faulty or hazardous situations of the property. In conclusion to the 1st case study it can be said
that Celia, as a child who did not understand the meaning of the warning sign, would be
eligible to claim for damages as a trespasser for the injuries she suffered, however, as
Raymond is aware of the condition of the building and of the foreseeable damages arising
from such condition and was aware of the warnings, he would not be eligible for any claim
for his injury. Since the building was near a school therefore a higher degree of care was
required from the occupier of the building. As Celia is a child who was unable to the read the
sign therefore, she would be able to claim for the compensation for any injury she suffered
from the owner of the building who failed to provide adequate care to ensure that no harm is
suffered to the children. The workers who have been employed by the occupier to repair the
building were seen as putting up a sign ‘DANGER: REPAIRS UNDERWAY’. They further
informed the school about the danger that the tree root possessed. Raymond is an adult and a
trespasser and was aware of the level of danger in the property. Yet he went to the property
without considering the risks that the property possessed. Therefore, he has no claim under
the Occupiers’ liability as adequate measures had been taken by the owner of the property for
ensuring that people are made aware of the dangers that the property possessed.

6TORT LAW

7TORT LAW
Reference
Occupiers’ Liability Act 1957
Occupiers’ Liability Act 1984
Jolley v Sutton London Borough Council [2000] 1 WLR 1082
Wheat v E Lacon & Co Ltd [1966] AC 552
Harris v Birkenhead Corporation [1976] 1 ALL ER 341
The Calgarth [1927]
Donoghue v. Folkestone Properties Ltd [2003] 2 WLR 1138
Roles v. Nathan [1963] 1WLR 1117
Bourne Leisure Ltd v. Marsden [2009] EWCA Civ 671
Jolley v Sutton London Borough Council [2000] 1 WLR 1082
The Calgarth [1927]
Donoghue v. Folkestone Properties Ltd [2003] 2 WLR 1138
Roles v. Nathan [1963] 1WLR 1117
Bourne Leisure Ltd v. Marsden [2009] EWCA Civ 671