Public and occupiers’ liability deal with a property owner’s responsibilities regarding the safety of people who enter their premises. Although they are similar in nature, they are not the same. In this article, we explain how the two concepts differ.

What is public liability?

Public liability concerns liability in situations where a person suffers an injury in a park, recreation facility, or police station. In these types of cases, the Defendant is typically the relevant local authority as the land or premises is ‘public’ property.

The duty of care in public liability cases is generally lower than in occupiers’ liability matters. Local authorities are expected to take reasonable steps to prevent foreseeable harm to visitors but are not responsible for all possible hazards. In Bolton v Stone 1951 A.C. 850, the House of Lords considered the degree of care to passers-by that should be attributed to a property owner who allowed cricket games to be played on their land.

When considering whether an action and injury was foreseeable, Lord Porter stated:

“It is not enough that the event should be such as can reasonably be foreseen; The further result that injury is likely to follow must also be such as a reasonable man would contemplate, before he can be convicted of actionable negligence. Nor is the remote possibility of injury occurring enough; there must be sufficient probability to lead a reasonable man to anticipate it. The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken. “.

In Lewis v Wandsworth Borough Council [2020] EWHC 3205 (QB), Mr Justice Steward summarised the important points in Bolton as:

• Just because an accident was reasonably foreseeable, liability does not automatically follow.
• The Court must consider the chances of an accident happening, the potential seriousness of an accident, and the measures which could be taken to minimise or avoid an accident occurring.
• The decision in Bolton does not conclude that anyone who hits a cricket ball out of the grounds or over a boundary escapes liability. The Court must examine all the facts.
• In appeal cases, the Court should apply Lord Porter’s test as set out above.

What is occupiers’ liability?

Occupiers’ liability focuses on the duty of care an occupier (someone in control of the property) owes to those who enter their premises, including both invited and uninvited visitors. It primarily deals with accidents and injuries that occur on the property that is under the control of the occupier, such as their home, business, or land.

The Occupiers’ Liability Act (OLA) 1957 and the OLA 1984 governs the duty of care that occupiers owe to people who enter their premises.

The OLA 1957 primarily deals with the liability of occupiers concerning visitors to their premises and outlines the duty of care that an occupier owes to lawful and unlawful visitors. The OLA 1957 provides that an occupier must take reasonable care to ensure that the premises are safe, which may include warning about known hazards. In the case of unlawful visitors, i.e., trespassers, the occupier must avoid wilful or reckless injury.

Complimenting the OLA 1957 is the OLA 1984 which addresses the duty of care owed to people who enter premises for recreational purposes. Under 1984 Act, a person who allows others to enter their land or property for recreational activities, such as hiking or picnicking, is generally not responsible for injuries suffered by recreational users. However, there are exceptions, such as if the injury is caused by a hidden danger, the occupier charged a fee for entry, or the occupier intentionally caused harm.

Occupiers are expected to take reasonable care to ensure their premises are safe for all lawful visitors, which may involve conducting regular inspections, maintaining the property, and warning of any known hazards.

This is illustrated in the recent case of Ashton v The City of Liverpool Young Men’s Christian Association [2023] EWHC 707 (KB), 2023 WL 03437939.

The Claimant, A, was spotted hanging from her fingertips from a windowsill on the fourth floor of the Liverpool YMCA. She subsequently fell and landed on the first floor ledge of the building, sustaining serious injuries.

The Defendant, who was the occupier of the building argued that A deliberately exited the fourth floor window of the room which she occupied in an impulsive attempt to kill herself, before having a rapid change of mind.

A stated that she fell from the window when trying to retrieve washing which had been drying and that the opening of which was not restricted, One of the issues the Court had to decide on was whether the Defendant had breached its duty of care under the OLA 1957.

After examining the evidence, the Court concluded that the Defendant had breached the OLA 1957 by failing to ensure that the windows were appropriately restricted and not capable of being easily opened by vulnerable visitors and short term residents.

What should I do if I am unsure whether I have a claim?

The most crucial step to take if you suffer a personal injury because of negligence is to talk to an experienced Personal Injury Solicitor. They can swiftly tell you whether your claim should be brought against a local authority or the owner of a private premises. If they believe your claim has a reasonable chance of success, they may represent you on a no win, no fee basis. Time is of the essence when it comes to personal injury claims as the Limitation Act 1980 states that a claim must be brought within three years of the injury occurring.

Our team has decades of combined experience in successfully advising and representing clients in complex public and occupiers’ liability cases. We are sympathetic and understanding and are here to help you every step of the way.