Law of Torts
Occupiers' Liability: Who Is an Occupier, the Classes of Entrant, and the Common Duty of Care
Occupiers' liability is the duty owed by the person in control of premises to those who come upon them. It is not a separate tort so much as a settled application of negligence to a recurring situation, and its distinctive feature is that what is owed depends on the character of the entrant. At common law the entrants fall into four classes, descending from the contractual entrant to the trespasser, with a different measure of duty for each. England replaced the middle two classes with a single common duty of care by the Occupiers' Liability Act 1957. India has no such statute, so the common law classification survives here, though the courts increasingly treat it as a graduated standard of reasonable care rather than as four rigid boxes.
The occupier, the four classes of entrant, the two kinds of danger, and the adequacy of a warning
1. Who Is an Occupier
- The test is control, not ownership or title. An occupier is the person who has a sufficient degree of control over the premises to put him under a duty of care toward those who come lawfully upon them.
- An owner out of occupation is not the occupier of the parts he has let, though he may remain the occupier of what he retained.
- A tenant in possession is an occupier, and so is a licensee in actual control, and so is a contractor who has taken exclusive possession of a site.
- There may be more than one occupier of the same premises at the same time, each owing his own duty measured by his own degree of control. A building owner and the contractor working in it may both be occupiers.
- Physical presence is not required. A person who has the legal right and the practical power to control who comes and what is done is an occupier though he is rarely there.
2. What Counts as Premises
- Land and buildings, whether the danger is in the structure or on the ground.
- Fixed and movable structures, including a lift, a scaffold, a stand erected for an event, a ladder, a gangway and a tent.
- Vessels, vehicles and aircraft, which the English statute puts beyond argument and which the common law treats the same way.
- Open land, a park, a construction site, a quarry, a swimming pool and a car park.
3. The Four Classes of Entrant
The entrant | Who he is | What is owed |
Contractual entrant | A person who enters under a contract that gives him the right to be there: a hotel guest, a cinema ticket holder, a passenger | What the contract provides. Where the contract is silent, an implied warranty that the premises are as safe as reasonable care and skill can make them |
Invitee | A person who enters on business in which he and the occupier have a common interest: a customer in a shop, a workman doing repairs, a person calling to deliver goods | Reasonable care to prevent damage from an unusual danger of which the occupier knows or ought to know: Indermaur v. Dames |
Licensee | A person who enters with permission but without any common interest: a guest invited to dinner, a person allowed to take a short cut | A duty to warn of a concealed danger or trap actually known to the occupier |
Trespasser | A person who enters without permission and without any right at all | At common law nothing beyond a duty not to injure him wilfully or recklessly. Now a duty of common humanity |
📖 Indermaur v. Dames (1866) LR 1 CP 274 Facts The plaintiff, a gas fitter, went to the defendant's sugar refinery to test gas burners he had installed. While there in the course of that work he fell through an unfenced shaft in the floor, which was left open for the passage of sugar. Held The defendant was liable. The plaintiff was an invitee, and the unfenced shaft was an unusual danger. Ratio An occupier owes an invitee a duty to use reasonable care to prevent damage from an unusual danger of which the occupier knows or ought to know. An unusual danger is one not usually found in carrying out the task or fulfilling the function that the invitee has in hand. What is unusual is judged by reference to the class of persons to whom the invitee belongs, so a danger familiar to those in one trade may be unusual to a visitor from another. |
4. The Common Duty of Care
Section 2, Occupiers' Liability Act 1957 (England) An occupier of premises owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty by agreement or otherwise. The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. An occupier must be prepared for children to be less careful than adults. An occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it. |
- The statute does not apply in India, and there is no Indian equivalent of it.
- Its importance here is as a statement of the direction the common law was already taking. The Indian courts apply the old categories, but they apply them as a sliding scale of reasonable care rather than as separate torts with separate rules.
- The duty is owed in respect of the visitor and the purpose for which he came. A person invited into a shop is a visitor in the shop and a trespasser in the stockroom, and the duty follows him only so far as his permission extends.
- And the duty is to make the visitor reasonably safe, not to make the premises safe. A warning, a barrier, a diversion or a supervisor may discharge it as effectively as a repair.
5. Static Danger and Activity Danger
Static danger, or the occupancy duty | Activity danger, or the activity duty | |
What it is | A danger arising from the state or condition of the premises | A danger arising from an activity carried on upon the premises |
Examples | A rotten stair, an unfenced pit, a loose parapet, a wet floor, a defective lift | A vehicle driven carelessly in a yard, a crane swung over a path, welding done above a walkway |
The applicable law | Occupiers' liability proper. The class of the entrant governs what is owed | Ordinary negligence. The neighbour principle governs |
Does the class of entrant matter | Yes. It is the whole point of the classification | Much less. A person carrying on an activity owes a duty to all who are foreseeably affected |
Who is the defendant | The occupier, as occupier | Whoever carried on the activity, who may or may not be the occupier |
- The distinction matters most for the trespasser. The occupancy duty owed to him is slight; the duty owed by a person carrying on a dangerous activity is much less easily escaped, because the activity endangers whoever happens to be there.
- A single accident may raise both. A visitor injured when a defective platform collapses under the weight of machinery being moved across it may complain of the condition of the platform and of the manner in which the machinery was moved.
6. Warnings, and When a Warning Is Enough
- A warning is a means of discharging the duty and not a substitute for it. The question is always whether, in all the circumstances, the warning was enough to enable the visitor to be reasonably safe.
- It must identify the danger. A notice saying "danger" tells a visitor nothing about where the hole is.
- It must reach the person warned, in a form and a language he can be expected to understand, and placed where he will see it before he meets the danger.
- It must leave him a practical choice. A warning of a danger on the only route to the exit does not discharge the duty, because the visitor has no alternative but to face it.
- A general disclaimer is weakest of all. A notice at the gate that persons enter at their own risk does not answer a concealed trap inside, and where the visitor is a contractual entrant such a notice may be ineffective altogether.
- Where the danger is obvious, no warning may be needed, because the visitor can see for himself what he is dealing with. The qualification is the child, to whom what is obvious to an adult may not be obvious at all.
⚠ What the classification actually decides It is easy to treat the four classes as a taxonomy to be memorised and applied mechanically. They are better understood as a rough scale of how much an occupier may fairly be asked to do for a person, given the terms on which that person came. Toward a contractual entrant, who paid for the right to be there, the occupier has undertaken the most. Toward an invitee, who came for the occupier's benefit as well as his own, he owes reasonable care against dangers he knows or ought to know of. Toward a licensee, who came for his own purposes by leave, he owes only to reveal the traps he actually knows about. And toward a trespasser, who came with no right at all, he owes only the minimum that common humanity requires. Once the scale is seen for what it is, the classification is much less important than the question it exists to answer: what was it reasonable to expect this occupier to do for this person on these premises. |
7. The Position Stated Shortly
1. An occupier is the person with a sufficient degree of control over premises, and control rather than ownership is the test.
2. There may be more than one occupier of the same premises at the same time, each owing a duty measured by his own control.
3. Premises include land, buildings, and fixed and movable structures such as lifts, scaffolds, vessels and vehicles.
4. A contractual entrant is owed what the contract provides, and where it is silent, that the premises are as safe as reasonable care and skill can make them.
5. An invitee is owed reasonable care against an unusual danger of which the occupier knows or ought to know: Indermaur v. Dames.
6. A licensee is owed a warning of a concealed danger or trap actually known to the occupier.
7. A trespasser was owed nothing at common law beyond a duty not to injure him wilfully, and is now owed a duty of common humanity.
8. England replaced the invitee and licensee categories with a single common duty of care by the Occupiers' Liability Act 1957; India has no such statute.
9. A static danger arises from the condition of the premises and is governed by occupiers' liability; an activity danger arises from what is done there and is governed by ordinary negligence.
10. A warning discharges the duty only if it identifies the danger, reaches the visitor, and leaves him a practical choice.