Notes · LawUK · A-Levels

Occupiers' Liability, Vicarious Liability and Tort Remedies

This topic covers the duties an occupier owes to lawful visitors under the Occupiers' Liability Act 1957 and to trespassers under the Occupiers' Liability Act 1984, the doctrine of vicarious liability by which an employer is liable for an employee's torts, and the defences and remedies available in the law of tort.

4 sections~18 min reading time3 competenciesLevel Standard 3 · Advanced 1

T·131313 / 16

Exam profile

AO1 · Demonstrate knowledge and understanding of occupiers' liability, vicarious liability and tortious defences and remediesAO2 · Apply the occupiers' liability and vicarious liability rules to a factual scenarioAO3 · Analyse and evaluate the scope of occupiers' liability and the justifications for vicarious liability

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basic level

AS students should be able to state the common duty of care under the 1957 Act and the conditions for a duty to a trespasser under the 1984 Act.

higher level

Full A-Level answers apply the special provisions for children, skilled visitors and independent contractors, the two-stage vicarious liability test, and the defences and remedies in tort.

Depth

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Contents · 4 sections

Occupiers' Liability, Vicarious Liability and Tort Remedies

Occupiers' liability to visitors (OLA 1957)#

StandardAQA 7162/2 - Occupiers' liabilityDfE GCE Law subject content

An occupiers' liability claim (OLA 1957)

Fig. 1An occupier owes lawful visitors a duty to take reasonable care that they will be reasonably safe.

The Occupiers' Liability Act 1957 governs the duty owed by an occupier of premises to lawful visitors. An occupier is the person who has a sufficient degree of control over the premises (Wheat v E Lacon & Co (1966)), and a visitor is a person who has express or implied permission to be there. Section 2(2) imposes the 'common duty of care': the occupier must 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 they are invited or permitted to be there. The duty is to keep the visitor reasonably safe, not to guarantee their safety.

The Act makes special provision for particular categories of visitor. By section 2(3)(a), an occupier must be prepared for children to be less careful than adults, so a higher standard is owed where children are lawful visitors; things that are harmless to adults may be a trap or an allurement to children, as in Glasgow Corporation v Taylor (1922), where poisonous berries attracted a child, and Jolley v Sutton London Borough Council (2000), where children were injured playing on an abandoned boat. By section 2(3)(b), an occupier may expect that a person exercising their calling will appreciate and guard against special risks ordinarily incident to it, so a lower duty is owed to skilled visitors in respect of such risks, as in Roles v Nathan (1963), where chimney sweeps were expected to guard against the risks of their trade.

By section 2(4)(b), an occupier is not liable for damage caused by the faulty work of an independent contractor if it was reasonable to entrust the work to a contractor and the occupier took reasonable steps to check the contractor's competence and, where appropriate, that the work had been properly done. Thus in Haseldine v Daw an occupier was not liable for a negligently repaired lift, whereas in Woodward v Mayor of Hastings the occupier was liable for an icy step that a simple inspection would have revealed. By section 2(4)(a), a warning of a danger may discharge the duty if in all the circumstances it was enough to enable the visitor to be reasonably safe. Defences include the visitor's consent to the risk (section 2(5)), contributory negligence, and, subject to statutory controls, exclusion of liability.

For evaluation, the 1957 Act codifies a sensible, flexible duty tailored to the type of visitor, and its special provisions for children and skilled visitors reflect common sense. Difficulties arise over the extent of the duty owed to children and the operation of allurement, and over how far liability can be excluded, especially against consumers. A strong answer identifies the occupier and the visitor, applies the common duty of care and any special provision, and considers the defences.

Worked example

Worked problem question: occupiers' liability to a child visitor

A young child, lawfully on D's premises, is injured by an attractive but dangerous machine left accessible. Advise on D's liability under the Occupiers' Liability Act 1957.

Issue
Whether D breached the common duty of care owed to a child visitor.
Rule / authority
Under s.2(2) OLA 1957 the occupier owes the common duty of care; under s.2(3)(a) the occupier must be prepared for children to be less careful, and must guard against allurements (Glasgow Corporation v Taylor (1922); Jolley v Sutton (2000)).
Application
D is the occupier and the child a lawful visitor. Leaving an attractive but dangerous machine accessible to children is a failure to take reasonable care for a visitor who, being a child, may be less careful; the machine is an allurement, so on the Glasgow Corporation v Taylor principle D has breached the higher standard owed to children.
Conclusion
D is liable under the 1957 Act, having breached the common duty of care owed to a child visitor by failing to guard against an allurement.

Result: The answer applies the common duty of care and the child-visitor provision with the correct authorities.

Typical mistakes

Applying the same standard to child and adult visitors; a higher standard is owed to children under s.2(3)(a).
Holding an occupier liable for an independent contractor's faulty work where the s.2(4)(b) conditions (reasonable to entrust, competence checked) were met.

Active revision

A child is injured after climbing an unfenced, derelict structure on D's land to which children have access as visitors. Advise on the occupier's liability under the 1957 Act.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

Occupiers' liability to trespassers (OLA 1984)#

StandardAQA 7162/2 - Occupiers' liabilityDfE GCE Law subject content

Visitors and trespassers compared

Fig. 2Visitors are owed the full common duty of care; trespassers a narrower, conditional duty for personal injury.

The Occupiers' Liability Act 1984 governs the more limited duty owed to persons other than lawful visitors, principally trespassers. The common law was reluctant to impose duties towards trespassers, but the House of Lords in British Railways Board v Herrington (1972) recognised a duty of 'common humanity' towards a child trespasser electrocuted on a railway line, and the 1984 Act put a duty on a statutory footing while keeping it narrower than the duty owed to visitors.

A duty under the 1984 Act arises only if three conditions in section 1(3) are met: the occupier is aware of the danger or has reasonable grounds to believe it exists; the occupier knows or has reasonable grounds to believe that the trespasser is in the vicinity of the danger or may come into it; and the risk is one against which, in all the circumstances, the occupier may reasonably be expected to offer the trespasser some protection. Where these conditions are met, section 1(4) imposes a duty to take such care as is reasonable in all the circumstances to see that the trespasser is not injured on the premises by reason of the danger. The Act covers personal injury only, not damage to property.

The scope of the duty has been significantly limited by the courts. In Tomlinson v Congleton Borough Council (2003) the House of Lords held that no duty was owed to an adult who dived into a shallow lake and was injured, because the danger arose from his own decision to undertake an obviously risky activity, not from the state of the premises; occupiers are not required to protect people from obvious risks that they freely choose to run. Similarly, in Ratcliff v McConnell (1999) an adult who was injured diving into a swimming pool at night was owed no duty because the danger was obvious. A warning or the taking of reasonable steps to discourage entry may discharge the duty, and the defences of consent and contributory negligence apply.

For evaluation, the 1984 Act strikes a balance between compassion for injured trespassers and the principle that people should take responsibility for their own risky choices. The requirement that all three section 1(3) conditions be met, and the robust approach in Tomlinson to obvious risks and personal autonomy, keep the duty within reasonable bounds, though the line between a danger 'due to the state of the premises' and one due to the claimant's own activity can be difficult to draw. A strong answer applies the section 1(3) conditions and the Tomlinson approach to the facts.

Worked example

Worked problem question: occupiers' liability to a trespasser

An adult trespasser climbs a fence and dives into a lake despite the obvious danger, suffering serious injury. Advise on liability under the Occupiers' Liability Act 1984.

Issue
Whether the occupier owes and has breached a duty to an injured adult trespasser.
Rule / authority
Under s.1(3) OLA 1984 a duty arises only if the occupier is aware of the danger, knows or has reason to believe a trespasser may come into its vicinity, and the risk is one against which some protection is reasonably expected. No duty is owed for obvious risks the claimant chooses to run (Tomlinson v Congleton (2003)).
Application
Even if the s.1(3) conditions were met, the danger arose from the claimant's own decision to dive into the lake, an obvious risk he freely chose to run; on the Tomlinson principle the occupier is not required to protect a trespasser from such obvious risks.
Conclusion
The occupier is not liable: no duty arises for an obvious risk that the adult trespasser voluntarily chose to run, following Tomlinson.

Result: The answer applies the s.1(3) conditions and the Tomlinson approach to obvious, self-chosen risks.

Typical mistakes

Applying the full 1957 common duty of care to a trespasser; the 1984 Act imposes a narrower, conditional duty for personal injury only.
Finding a duty for an obvious risk that the claimant freely chose to run (Tomlinson).

Active revision

An adult climbs over a locked gate at night and is injured diving into a clearly marked shallow pond. Advise on the occupier's liability under the 1984 Act.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

Vicarious liability#

AdvancedAQA 7162/2 - Vicarious liabilityDfE GCE Law subject content

The vicarious liability test

Fig. 3Both stages must be satisfied: an employment-type relationship and a close connection with the employment.

Vicarious liability makes one person liable for the tort of another, most commonly an employer for the torts of an employee. It is a form of no-fault liability: the employer is liable even though personally blameless, because of the relationship with the wrongdoer. There are two questions: first, is the relationship between the wrongdoer and the defendant one of employment (or one akin to employment)? Secondly, was the tort committed in the course of that employment?

On the first question, the courts distinguish an employee (a contract of service) from an independent contractor (a contract for services), for whose torts there is generally no vicarious liability. Various tests have been used - the control test, the integration or organisation test, and the multiple or economic-reality test (Ready Mixed Concrete v Minister of Pensions (1968)). More recently the courts have extended vicarious liability to relationships that are 'akin to employment' even without a formal contract of employment: in Various Claimants v Catholic Child Welfare Society (2012) and Cox v Ministry of Justice (2016) the defendant organisations were liable for torts committed by those working within their enterprise, though in Barclays Bank v Various Claimants (2020) a genuinely independent contractor fell outside the doctrine.

On the second question, the modern test is whether the tort was so closely connected with the employment that it would be fair and just to hold the employer liable. In Lister v Hesley Hall (2001) the employer of a warden who abused children in a school boarding house was vicariously liable because the abuse was closely connected with the duties he was employed to perform. In Mohamud v WM Morrison Supermarkets (2016) an employer was liable for an assault by a petrol-station attendant on a customer, as it was within the field of activities entrusted to him. By contrast, in WM Morrison Supermarkets v Various Claimants (2020) the Supreme Court held the employer not liable where an employee, pursuing a personal vendetta, leaked colleagues' data, because he was acting on a 'frolic of his own' rather than in the course of employment. An employer may be liable even for an act it prohibited, if done for the employer's business (Rose v Plenty (1976)), but not for an employee's independent personal venture.

For evaluation, vicarious liability is justified on grounds of policy: the employer benefits from the enterprise and its risks, can insure against and spread the loss, and is encouraged to select and supervise employees carefully, while the injured claimant is more likely to be compensated by a solvent defendant. It is criticised for imposing liability without fault and for the uncertainty of the 'akin to employment' and 'close connection' tests, whose boundaries have shifted from case to case. A strong answer works through both questions and can evaluate the justifications for the doctrine.

Worked example

Worked problem question: vicarious liability

An employed care worker assaults a resident while carrying out duties they were employed to perform. Advise on whether the employer is vicariously liable.

Issue
Whether the employer is vicariously liable for the employee's tort.
Rule / authority
Vicarious liability requires an employment relationship and a tort closely connected with the employment (Lister v Hesley Hall (2001)); the test is whether the wrong was so closely connected with the employment that it is fair to impose liability (Mohamud (2016)).
Application
The care worker is an employee. The assault occurred while carrying out the very duties entrusted to them, so it is closely connected with the employment on the Lister principle, unlike a purely personal frolic (contrast Morrison (2020)).
Conclusion
The employer is likely to be vicariously liable, because the tort was closely connected with the employment the worker was engaged to perform.

Result: The answer applies the two-stage test and the close-connection authorities to establish vicarious liability.

Typical mistakes

Imposing vicarious liability for the torts of a genuinely independent contractor (Barclays Bank v Various Claimants).
Treating any tort committed at work as within the course of employment; a personal 'frolic of his own' is outside it (Morrison (2020)).

Active revision

An employee delivery driver, told never to give lifts, gives a lift to a child who is injured by the driver's careless driving. Advise on whether the employer is vicariously liable.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

Defences and remedies in tort#

StandardAQA 7162/2 - Defences and remediesDfE GCE Law subject content

Even where a tort is established, the defendant may raise a defence, and the claimant's remedy must be quantified. Two general defences are central. Contributory negligence applies where the claimant's own failure to take reasonable care for their own safety contributed to the harm. Under the Law Reform (Contributory Negligence) Act 1945 it is a partial defence: the court reduces the claimant's damages to the extent it thinks just and equitable, rather than defeating the claim altogether. In Sayers v Harlow Urban District Council (1958) a claimant injured while escaping from a locked public lavatory had her damages reduced for the way she attempted to climb out, and reductions are routinely made, for example, where an injured car passenger was not wearing a seatbelt.

Volenti non fit injuria (consent to the risk) is a complete defence: where the claimant fully understood the nature and extent of a risk and voluntarily accepted it, they cannot recover. It requires genuine knowledge and voluntary acceptance of the specific risk, and it is applied narrowly, particularly because it is restricted by road-traffic legislation and rarely succeeds against employees; in ICI v Shatwell (1965), however, it succeeded where two experienced workers deliberately flouted safety rules and instructions. Illegality may also bar a claim where the harm is closely connected with the claimant's own criminal conduct.

The principal remedy in tort is an award of compensatory damages, whose aim is to put the claimant, so far as money can, in the position they would have been in had the tort not been committed (restitutio in integrum). Damages are divided into special damages, which are the precisely quantifiable losses up to the date of trial (such as lost earnings and expenses incurred), and general damages, which cover losses that cannot be calculated exactly, including pain, suffering and loss of amenity and future losses. The claimant is under a duty to mitigate their loss - to take reasonable steps to reduce it - and damages for personal injury may be paid as a lump sum or, increasingly, as periodical payments. In torts such as nuisance the court may also grant an injunction to restrain the continuation of the wrong.

For evaluation, the partial nature of contributory negligence is generally regarded as fair, allowing damages to be apportioned according to responsibility, whereas the all-or-nothing character of volenti explains why the courts apply it cautiously. The compensatory aim of damages is well established, but the assessment of general damages for non-financial loss is inevitably imprecise, and the choice between lump sums and periodical payments involves difficult predictions about the future. A strong answer identifies the applicable defence, applies it correctly, and explains the appropriate remedy.

Worked example

Worked problem question: contributory negligence and damages

C is injured by D's negligent driving but was not wearing a seatbelt, which increased the injuries. Advise on the effect on liability and damages.

Issue
Whether C's failure to wear a seatbelt affects the claim and how damages are assessed.
Rule / authority
Contributory negligence (Law Reform (Contributory Negligence) Act 1945) reduces damages to the extent just and equitable where the claimant failed to take reasonable care for their own safety. Damages aim to restore the claimant to their pre-tort position, divided into special and general damages.
Application
D is liable for the negligent driving, but C's failure to wear a seatbelt contributed to the extent of the injuries, so damages will be reduced under the 1945 Act by a percentage reflecting C's share of responsibility. The award will comprise special damages (quantifiable losses) and general damages (pain, suffering and future loss), subject to that reduction.
Conclusion
D remains liable, but C's damages are reduced for contributory negligence, and the balance is assessed as special and general damages.

Result: The answer applies contributory negligence as a partial defence and explains the structure of a damages award.

Typical mistakes

Treating contributory negligence as a complete defence; it only reduces damages under the 1945 Act.
Confusing special damages (precisely quantifiable pre-trial losses) with general damages (pain, suffering and future losses).

Active revision

A claimant injured in a road accident was partly at fault for not wearing a seatbelt. Advise on how this affects the claim and how damages would be assessed.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

References & sources

Sources

Department for Education

GCE AS and A level subject content for law

AQA

AQA A-level Law (7162) specification

Occupiers' Liability, Vicarious Liability and Tort Remedies

4 sections~18 min reading time3 competenciesLevel Standard 3 · Advanced 1

Occupiers' Liability, Vicarious Liability and Tort Remedies

Key points

Worked problem question: occupiers' liability to a child visitor

Key points

Worked problem question: occupiers' liability to a trespasser

Key points

Worked problem question: vicarious liability

Key points

Worked problem question: contributory negligence and damages

Sources

Occupiers' Liability, Vicarious Liability and Tort Remedies

Key points

Worked problem question: occupiers' liability to a child visitor

Key points

Worked problem question: occupiers' liability to a trespasser

Key points

Worked problem question: vicarious liability

Key points

Worked problem question: contributory negligence and damages

Sources