Last week I was instructed to represent a Claimant at an occupiers’ liability claim where a very young Claimant tripped on a loose drain cover and broke his finger, leaving him with a permanent scar. We were successful in establishing liability but one of the potential issues was that the previous fee earner (when drafting the pleadings) did not plead Occupiers’ Liability Act 1957. In fact, the claim’s main cause of action was Landlord and Tenant Act 1985 and Defective Premises Act 1972.
Everything happily all came out in the wash. Needless to say I needed to ensure I was prepared for any arguments that could arise as a result. What was interesting is I wanted to make sure I knew what the law was for occupiers’ liability prior to 1957. Clerk and Lindsell have very little to say on the matter because of course the 1957 Act introduced a common duty. There was very little need to consider the pre-1957 common law.
Different classification of visitors
Whilst the 1957 Act did not change the classification of visitors, it imposed the common duty irrespective of classification (save for trespassers, which of course has their own duty of care under the 1984 Act). One would therefore only need to consider whether a person was a visitor or trespasser. Prior to 1957 there were three main types of lawful visitor:-
- Licensee
- Invitee
- Contractor
Licensees were held to have had the lowest duty of care and contractors (who were on the land due to a contractual right, such as staying at a hotel as a paying guest) had the highest duty of care owed to them. It would be easy to determine who was a contractor but the questions was how to differentiate an invitee from a licensee. A few years before the 1957 was enacted the Court of Appeal considered the issue in Pearons v Lambeth Borough Council [1950] 2 K.B. 353 and
It is more exact to say that an invitee is a person who comes on the occupier’s premises with his consent on business in which the occupier and he have a common interest; e.g., a shopper has an interest to buy and a shopkeeper an interest to sell. It is sometimes said that the interest must be pecuniary or at least ” material.” This certainly does not mean that a visitor who is not required to pay and does not pay is necessarily excluded from the class of invitees : e.g., many shops encourage customers to enter and inspect their wares without any obligation to buy. No doubt this practice pays in. a purely pecuniary sense in the long run and is tolerated for that reason : compare Stowell v. Railway Executive (1). But it is not clear that a ” common ” interest ” for this purpose may not exist where no pecuniary gain, immediate or remote, whatever is aimed at.
In Pearson the Plaintiff was using a public toilet which was owned and managed by Lambeth Council. It was concluded that Mr Pearson was not an invitee but a licensee, which meant the duty owed to him was lower. In comparison the Plaintiff in Stowell v Railway Executive [1949] 2 K.B. 519 was attending London Paddington to collect his family. In that case he was considered to be an invitee because his common interest and Court distinguished a invitee from a license as someone who has “invited to the premises by the owner or occupier for purposes of business or of material interest“.
Another interesting case is Dunster v Abbott [1954] 1 W.L.R 58 where Denning LJ (sitting in the Court of Appeal) considered whether a visitor could materially change from a trespasser, to a licensee, to a invitee and then back through as the Plaintiff (who was a travelling salesmen) returned to speak to the Defendant and when it was concluded the Defendant was not interest, sustained injury upon his journey leaving the premises and on his way back to the highway.
A simple illustration is that a visitor to a shop is not obligated to purchase an item but is invited because they have a common business interest.
What is the duty of care owed to the different class of visitor?
This is, of course, where the different class makes the difference. In the 21st Century we only differentiate the duty of care (save for any statutory provisions, such as independent contractors) between visitors and trespassers.
Prior to the 1957 Act, as above, licensees were owed the lowest duty. The only duty regarding the permanent condition of the property is in respect of hidden dangers and only of those that the Defendant has actual knowledge of. The exception was determined in Pearson. In this case the defect was caused by children messing around on the shutter grill and the Defendant’s servants had seen this previously and on the day in question. Although they did not actually see the damage being caused, it was enough to establish actual knowledge.
In the case of Dunster, the issue was not the static condition of the property which was at issue, but if the ‘current operations, that is, to things being done on the premises, to dangers which are brought about by the contemporaneous activities of the occupier or his servants or of anyone else‘. In this case, the ‘danger’ was a bridge over a moat but the Plaintiff argued that the Defendant turned the light off too early. It was said this caused him to fall off the moat. In that circumstances, although the claim failed, it did not matter that the Plaintiff was deemed to be a licensee.
The contractor visitor would have the additional benefit that the premises were fit for purpose of the contract.
What was I going to be arguing?
As I say, I was fortunate that I did the preparation without need make such arguments as the parties agreed to frame the issues which did not take issue with the type of visitor under a common law approach. However, another Judge or opponent may have taken issue with it.
I was going to argue that the Claimant was an invitee and most certainly not a licensee. The accident occurred on a new build estate and the area in question was still owned by the builders of the estate, but managed by the Defendant. I highly doubted that there was such an arrangement pre-1957 for a comparative. So how was I too prove that the Claimant (who was a very young child of two parents who owned and lived in one of the new builds) was an invitee?
It was going to be difficult to argue that he was a contractor, because a minor under the age of eighteen cannot enter into a contract. However, his parents did when they purchased the he new build freehold. In the TP1 it confirmed the accident locus was an area for the benefit of the owners and occupiers of the new build homes. During her cross examination, the mother and litigation friend confirmed they, presumably along with everyone else, paid an annual fee to the Defendant for the cost of their maintenance services.
It therefore most be the case that he was an invitee by virtue of his parent’s purchase and occupation of their new build home and that meant he was “invited to the premises by the owner or occupier for purposes of business or of material interest“.
Thankfully I didn’t need to make the submission and the Claimant succeed on establishing liability.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.