Occupiers liability

In one minute

An occupier is the person in control of premises. He owes a duty of care to those who come on them. The duty is highest to lawful visitors and lower to trespassers, and he must take extra care for children.

India has no Occupiers' Liability Act. Courts apply common law, following the English rules. In exams, expect the common duty of care, the position of children and trespassers, and a problem on a dog or a dangerous object.

Exam focus

Frequency: Rarely asked
Usually asked as: Both (long answer and short answer)

Legal provision

No Indian statute. Indian courts apply the common law of occupiers' liability, which developed in England.
Occupiers' Liability Act, 1957 (England): states the common duty of care to lawful visitors. Indian courts treat it as persuasive, not binding.
Occupiers' Liability Act, 1984 (England): states the duty to trespassers. It also guides Indian reasoning.
Article 21, Constitution of India, and Article 300: the State and public bodies, when they are occupiers, can be liable for failing to keep public premises safe.

Meaning and definition

An occupier is the person who has control over the premises. Control, not ownership, decides. A tenant, a hotel manager or a school management can be an occupier. More than one person can occupy the same premises.

Occupier's liability is the liability of that person for injury caused to others by the state of the premises or by things done on them. Premises include land, buildings, lifts, ships and vehicles.

Detailed explanation

Step 1: the common duty of care to lawful visitors

Lawful visitors are people who enter with the occupier's permission or by right. This includes customers, guests, employees and people entering for a lawful purpose. The occupier owes them the common duty of care: to take reasonable care that the visitor is reasonably safe in using the premises for the purpose for which he is allowed to be there.

Dangers in the premises. The occupier must inspect and repair, and warn of dangers the visitor may not know of.
Warnings. A warning discharges the duty only if it is enough to let the visitor be reasonably safe.
Visitor's own conduct. A visitor who goes beyond the permitted area becomes a trespasser in that part. An occupier may expect a skilled visitor to guard against the risks of his own work.

Example. A shopping complex in Hyderabad leaves a polished floor wet after cleaning with no warning sign. A customer slips and breaks a leg. The occupier failed to take reasonable care for a lawful visitor.

Step 2: children

The law expects more care for children. A child cannot recognise dangers as an adult does, and a thing that is harmless to an adult may attract a child. An occupier must be prepared for children to be less careful than adults.

In Glasgow Corporation v. Taylor (1922), a seven-year-old child ate poisonous berries from a shrub in a public park, and died. The shrub was in the park without a fence or a warning. The House of Lords held the Corporation liable, because the berries were an allurement, an attraction to a child, and the danger was known.

Example. A municipality in Guntur keeps a bright, poisonous seed tree in a children's park without a fence. A child eats the seeds and falls ill. The municipality is liable, as the tree was an allurement.

Step 3: independent contractors

If an occupier engages an independent contractor to do work on the premises, he is not liable for the contractor's faulty work, as long as he took reasonable care in choosing a competent contractor and checked the work where necessary. In Haseldine v. Daw (1941), the occupier of a block of flats was held not liable for the faulty repair of a lift by a competent engineer, but the duty to inspect and choose carefully remained.

Step 4: skilled visitors and persons exercising a calling

A person who enters in the exercise of a calling is expected to guard against the special risks of that calling. In Roles v. Nathan (1963), chimney sweeps died of fumes from a boiler flue while cleaning it. The occupier was held not liable because the danger arose from the very work they were skilled to do, and he had warned them.

Step 5: trespassers

A trespasser enters without permission. At common law the duty owed was low: the occupier must not deliberately or recklessly injure him (Addie v. Dumbreck, 1929). The law has since moved towards a duty of common humanity (British Railways Board v. Herrington, 1972). The occupier must act as a decent person would if he knows or ought to know that a trespasser is likely to be there.

A trespasser who knows of a danger and goes on is generally treated as accepting it. A fierce dog that the trespasser knew was on the premises is an example.
An occupier cannot set traps meant to injure trespassers.
Child trespassers are treated more kindly. Allurement and the occupier's knowledge count.

Step 6: the State and public bodies as occupiers

Municipal and public bodies that own structures near public roads must inspect and maintain them. In Municipal Corporation of Delhi v. Subhagwanti (1966), the clock tower in Chandni Chowk collapsed and killed three persons. The Supreme Court held the Corporation liable. The tower was under its control, it had not inspected the structure properly, and the collapse itself pointed to negligence.

Is the occupier liable for the injury?How to read this: go down the boxes in order. A "No" answer sends you to the result beside the box.

1. Was the defendant in control of the premises (an occupier)?
No: no occupier's duty. Look at other torts.
2. Was the claimant a lawful visitor?
No: he is a trespasser. Only the lower duty applies (do not injure deliberately or recklessly; common humanity).
3. Did the occupier fail to take reasonable care, allowing for children and for warnings?
No: the duty was met. No liability.
4. Did the failure cause the injury, and is there no defence such as the claimant's own fault?
No: no liability, or damages are reduced.
The occupier is liable in negligence for the injury.

Don't confuse: visitors, children and trespassers

The standard of care depends on who the claimant is.

Claimant	Duty owed by the occupier	Example
Lawful visitor	Common duty of care: reasonable care for safety	A customer in a shop
Child visitor	Higher care. Allurements must be guarded	A child in a public park
Skilled visitor	Occupier may expect him to guard against the risks of his calling	A chimney sweep
Trespasser	Do not injure deliberately or recklessly. Common humanity	A thief on a roof

Inside the common duty. A guest at a wedding hall in Vijayawada falls into an uncovered drain in the dark. The occupier must keep the way safe or warn of the drain.

Just outside it (trespasser). A burglar climbs into a closed godown at night and is hurt by a loose beam. The occupier owes only a limited duty and is not liable for the ordinary state of the premises.

Common mistakes

Writing that the occupier is always the owner. Control decides.
Saying the occupier owes the same duty to everyone. Visitors, children and trespassers differ.
Forgetting to mention allurement for children.
Saying that an occupier is always liable for an independent contractor's fault. He is not, if he took reasonable care.
Saying a trespasser has no rights. He cannot be injured deliberately or recklessly.

Apply it

Problem

A man climbs over the wall of a house in Tirupati at night without permission and eats berries from a plant in the garden. The berries are poisonous and he falls seriously ill. He sues the householder. Is the householder liable?

Issue. Does an occupier owe a duty to a trespasser, and was there negligence?

Rule. An occupier owes a limited duty to trespassers and is not liable for ordinary features of his garden.

Application. A garden plant is an ordinary feature of a garden, and the householder did nothing deliberate or reckless. The man entered without permission.

Conclusion. The householder is not liable.

Leading case laws

Municipal Corporation of Delhi v. Subhagwanti (1966)
Facts. The old clock tower in Chandni Chowk collapsed and killed three persons.

Principle. The Corporation, as the occupier of a structure by a public street, owed a duty to inspect and maintain it. The collapse supported an inference of negligence.

Why it matters. The leading Indian case on occupier's duty for structures open to the public.
Hall v. Brooklands Auto Racing Club (1933)
Facts. A racing car left the track and killed spectators.

Principle. A spectator accepts the ordinary risks of the sport, and the club was not liable.

Why it matters. It shows the limit of an occupier's duty where the visitor accepts a known risk.

How to write this answer in the exam

5-mark answer

Define occupier and occupier's liability.
State the common duty of care to lawful visitors.
Add children and trespassers in one line each.
Cite Municipal Corporation of Delhi v. Subhagwanti.

10-mark answer

Meaning of occupier, control test and the common law basis.
Common duty of care to lawful visitors.
Children and allurement: Glasgow Corporation v. Taylor.
Independent contractors and skilled visitors.
Trespassers: Addie v. Dumbreck, Herrington.
Public bodies: Subhagwanti.
Comparison table and conclusion.

Key points to remember

An occupier is the person in control of the premises.
Duty to lawful visitors: common duty of care.
Children need more care. Allurements must be guarded.
Trespassers: no deliberate or reckless injury, and a duty of common humanity.
An occupier is not liable for a competent independent contractor's fault if he took reasonable care.
Public bodies must inspect and maintain structures (Subhagwanti).

Quick self-test

1. Who is an occupier?

The person who has control over the premises, whether or not he owns them.

2. What is the duty owed to a lawful visitor?

The common duty of care: to take reasonable care that the visitor is reasonably safe in using the premises for the purpose of his visit.

3. Why was the Corporation liable in Subhagwanti?

The clock tower was under its control, it had not inspected the structure properly, and the collapse itself pointed to negligence.