Occupiers Liability in UK Law

A reasonable man in the position of the inspector must realise that if the foundations are covered in without adequate depth or strength as required by the byelaws, injury to safety or health may be suffered by owners or occupiers of the house. The duty is owed to them—not of course to a negligent building owner, the source of his own loss. A right of action can only be conferred upon an owner, or occupier, who is such when the damage occurs (see below).

First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter—in which case a prima facie duty of care arises.

In my respectful opinion the Court of Appeal was right when, in Sparham-Souter's case it abjured the view that the cause of action arose immediately upon delivery, i.e., conveyance of the defective house. We are not concerned at this stage with any issue relating to remedial action nor are we called upon to decide upon what the measure of the damages should be; such questions, possibly very difficult in some cases, will be for the court to decide.

Translating this general principle into its particular application to dangerous premises, it becomes simply this: wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an "occupier" and the person coming lawfully there is his "visitor": and the "occupier" is under a duty to his "visitor" to use reasonable care.

A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees, or some lack of capacity, such as the inability of children to recognise danger ( British Railways Board v Herrington [1972] AC 877) or the despair of prisoners which may lead them to inflict injury on themselves ( Reeves v Commissioner of Police [2000] 1 AC 360).

Section 2(6) applies, for instance, to persons who enter a public park, or a policeman who enters on a search warrant, for they enter in the exercise of a right conferred by law and are treated as if they wore invitees or licensees. But Section 2(6) does not apply to persons crossing land by virtue of a public or private way: because they are never "visitors" at all.

It would not ordinarily be reasonable to expect an occupier of premises having engaged a contractor whom he has reasonable grounds for regarding as competent, to supervise the contractor's activities in order to ensure that he was discharging his duty to his employees to observe a safe system of work.