Occupiers’ Liability

A. Introduction
This complex area of tort law is regulated both by statute and the common
law depending on the status of the entrant onto the land.

Where the entrant is a visitor (which receives a specific statutory

definition), the relevant principles are contained in the Occupiers’ Liability
Ordinance (Cap. 314).

Where the entrant is not a visitor—the most common type of which is a

trespasser—the relevant principles of law are entirely derived from the
caselaw.

B. Occupiers’ Liability Ordinance (Cap. 314)

1. Introduction

To a large extent the Ordinance enshrines rules that are, in effect, very
much a form of statutory negligence for the special affirmative duties that
fall upon occupiers to enable their visitors to be safe.

This is not per se a duty to make one’s premises safe. It is a duty about the
safety of the people who come to visit.

That said, in s 3(3)(b) it is clear that the duty extends to the protection of
their property.

2. Scope of the Ordinance

(a) Stated Relationship with Common Law Negligence

Section 2(1) of the Ordinance states:

The rules enacted by ss.3 and 4 shall have effect, in place of the rules
of the common law, to regulate the duty which an occupier of premises
owes to his visitors in respect of dangers due to the state of the premises
or to things done or omitted to be done on them.

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This grounds two points of note.

First, the Ordinance—where it applies—replaces the common law.

Second, the statute covers a duty in respect of occupancy.

Under s 2(2) it is made clear that the rules “regulate the nature of the duty
imposed by law in consequence of a person’s occupation or control of
premises”.

In HK the courts have arguably blurred the line a little between occupancy
and activity duties.

Tam Hong Leung v Ng Wai Hing [2006] 1 HKLRD 923

the case against [D] … must also succeed. It should, most certainly, have
always had a person on the ground whilst the Eagle was performing this
kind of operation. It failed to do so and in so doing was guilty of a most
basic obligation … [D] was a concurrent “occupier” within the Occupier’s
Liability Ordinance and … in failing to establish what should have been an
immutable system of having a “checker” on the ground it is … in breach of
the common duty of care that it owed to the plaintiff (Deputy Judge
Carlson).

The awkward cases are cases of unsafe systems of work. But these aside,
the reference in the legislation to the state of the premises generally refers
to artificial or unexpected dangers.

Bottomley v Todmorden Cricket Club [2003] EWCA Civ 1575

the [statute] … was concerned only to replace the old common law rules
relating to the occupancy duties of an occupier (Brooke LJ.)

(b) Persons to whom Protection is Afforded

The Ordinance states clearly who is afforded a duty.

(i) Visitors

Under s 2(2), visitors are defined in terms of those persons who would
have been regarded as invitees or licensees.

 Invitees at common law were those there by request: eg, a guest at a

party.
 Licensees were those permitted to enter (eg, postman coming into

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 your residential estate)

(ii) Section 3(6) entrants

It says there that “persons who enter premises for any purpose in the
exercise of a right conferred are to be treated as permitted by the occupier
to be there for that purpose”.

This makes them visitors in a roundabout way!

NB Implied invitations and permissions

The notion that a permission or, in some cases, an invitation can be implied
has a fairly established place in the case law.

Glasgow City Council v Taylor [1922] 1 AC 44

I think all these facts in combination were evidence from which a jury
might well infer not merely a license, but an invitation, which fixed
the defendants with a high responsibility towards those people to whom
such an invitation would mainly appeal, namely, those who from their
tender age would be deemed incapable of caution (Lord Atkinson).

Cf Perry Jonathan Brink (No 2) v New PG Farm [1996] HKLR 438

I doubt whether the word “allurement” is an appropriate expression in

reference to the open gate which would lead along the enclosed passage
immediately adjacent to the cages where the monkeys and the bear were
kept. The word "allurement" as used in this type of case has been
generally applied to something … which would be attractive to children
to play with, or the attractive-looking berries which the child ate in
Glasgow Corporation v Taylor (Rigby J).

Chan Kwai Ngor v Leung Fat Hang [1992] 1 HKC 408

[T]here is no suggestion that the defendant had done anything to

discourage or warn customers not to enter the kitchen area, despite his
knowledge of their frequenting there, he can hardly be heard to say that
they are not permitted to enter the area (Chan J).

(c) “Premises” Covered by the Act

The premises covered by the Act are set out in s 2(3)(a).

The term premises does not just refer to land and/or buildings. It also

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covers movable structures (such as boats, aircraft and vehicles).

It has been held in HK to apply to the following:

 Scaffolding (Ta Xuong v Incorporated Owners of Sun Hing Building
[1997] 4 HKC 171).
 A lift (Tan Chin Ming v Lucky Bakery House Ltd [2004] HKEC 600).
 A ship’s hold (Cheng Pik Kin v Allied Marine Consultants Ltd [2002]
HKLRD (Yrbk) 569.

(d) Who is an Occupier?

Section 2(2) provides occupiers are those who would be treated as

occupiers for the purposes of the common law.

This was always a question of control!

Wheat v E Lacon [1966] AC 552 (H/L)

Wan Tsz Nok v Hung Fai Electrical Engineering Ltd [2008] HKEC 1939

an occupier is a person who has a sufficient degree of control over the

premises … The test is one of control. There is no need for an occupier to
have exclusive occupation and two or more persons may be occupiers of
the same premises at the same time. In the case of a construction site, an
owner who employs an independent contractor to execute works on the
construction site is usually still regarded as having sufficient control of the
site as to put him under a duty towards all those who might lawfully be on
the site (Deputy Judge Anthony To).

NB Findings of multiple occupancy mean those who suffer very severe

injuries at work will stand a good chance of getting the best possible
compensation.

Sze Che Sau v Dragages et Travaux Publics (HK) [2007] HKLRD 890

[As regards the engineers] they were in a position to stop the works from
proceeding. They had a sufficient degree of control over the site to be able
to ensure the safety of the plaintiffs and the deceased who came onto the
site as visitors (Sakhrani J).

3 The Common Duty of Care

Section 3(1) of the Ordinance speaks in terms of a common duty of care.

Section 3(2) makes clear that it 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 was invited or permitted to be there.

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(a) Limitations on Permission

Having visitors doesn’t mean you give them permission to go everywhere,

and do anything they like.

The Calgarth [1927] P 93

when you invite a person into your house to use the stairs, you do not
invite him to slide down the banisters. (Scrutton LJ.)

Geary v Wetherspoon Plc [2011] EWHC 1506 (QB)

Wong Wing Ho v Housing Authority [2006] HKEC 2355
Cf Spearman v Royal United Bath Hospitals NHS Foundation
Trust [2018] Med LR 244

If a patient … has finished his or her treatment and is leaving, he or she

does not cease to be a visitor in general until they leave the hospital
premises. The position may be different if they deliberately enter an area
marked “no entry”, or “private” or know that they are entering a part of
the hospital where they have no right to be. But if the patient simply
makes a mistake and goes the wrong way, it could not possibly be
suggested that such a person was now a trespasser (Spencer J).
(b) Content of the Duty

Section 3(2) states that the duty is to be calibrated according to all the
circumstances of the case.

(i) The duty owed in case of ordinary visitors

This duty is just like that in ordinary negligence.

The law doesn’t demand too much—just reasonable care.

Cook v Swansea City Council [2017] EWCA Civ 2142

The alternative to closing the car parks would be manning them or

arranging regular gritting... Such gritting would have to be by hand and
would involve significant use of staff and material resources. This would
be a disproportionate and costly reaction to the risk and would have
diverted such resources from situations where attention was more
urgently required. (Hamblen LJ.)

Cheung Wai Mei v Excelsior Hotel (Hong Kong) Ltd [2000] HKEC 1228

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 [to avoid all risk] it would be necessary for staff to be posted at every
entrance to the hotel and for them to be equipped with cleaning utensils
capable of removing any liquid detected on either the marble or more likely
coconut matting at short notice… [That would entail] an absolute duty to
ensure the safety of the plaintiff… This is not the law (Mayo VP).

Section 3(3) provides examples of how the degree of care will vary.

That is, more care needs to be taken when C is a child, and less when C is
a specialist visitor who should be aware of certain dangers.

(ii) Duty owed to Children: s 3(3)(a)

Phipps v Rochester Corp [1955] 1 QB 450

The law recognizes … a sharp difference between children and adults …

When it comes to taking care of themselves, there is a greater difference
between big and little children than there is between big children and
adults, and much justification for putting little children into a separate
category (Devlin J).

Fu Cheung Chun Tom v MTR Corp Ltd [2009] HKEC 370

(c) Duty owed to ‘Specialist Visitors’: s 3(3)(b)

Roles v Nathan [1963] 2 All ER 908

in the case of a chimney sweep who comes to sweep the chimneys or to

seal up a sweep-hole … [t]he householder can reasonably expect the
sweep to take care of himself so far as any dangers from the flues are
concerned. These chimney sweeps ought to have known that there might
be dangerous fumes about and ought to have taken steps to guard
against them. (Denning MR.)

Cf Eden v West [2002] EWCA Civ 991

Judicial notice may be taken of obvious hazards … [But] [t]hat principle

does not, in my judgment, extend to an inference being drawn that a
competent joiner should be aware of the possibility that in a mid-20th-
century house there was no lintel supporting the bricks above window
frames (Pill LJ).

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The same approach has been taken in HK

Hsu Li Yun v Incorporated Owners of Yuen Fat Building [2000] 1 HKLRD

78

The deceased was a plumber and electrician. He certainly exposed himself

to risks of injury working with electricity … but not to other risks, such as
working at height, or as in the present case, working over a water tank
with inadequate support … I find that the risk which resulted in his death
was not a risk “ordinarily incident” to his calling (To J).

(iv) Res Ipsa Loquitur

If the accident occurs in circumstances that can’t be explained, P may be

able to invoke res ipsa loquitur.

This, recall, involves drawing an inference from the occurrence of an event

that would not ordinarily take place in the absence of negligence.

Wat Kwing Lok v Kowloon Motor Bus Co (1933) Ltd [2007] HKEC 2077

If, and only if, the plaintiff proves that the unusual event is more consistent
with fault on the part of the defendant than the absence of fault, the
evidential burden then shifts to the defendant to show, on a balance of
probabilities, that the accident happened without negligence on its part
(Skhrani J).

3 Discharging the Common Duty of Care: s 3(4)

Recall that the duty owed under the Act is not an absolute one. It is merely
one to take reasonable care to ensure the reasonable safety of visitors.

It is therefore possible to have discharged the duty, yet for C to have also
sustained an injury.

Also, D may satisfy the test if:

(a) he issued sufficient warning to his visitor, or

(b) he engaged an independent contractor to ensure the premises
were safe.

(a) Warnings: s 3(4)(a)

Under 3 2(4)(a) a warning will only absolve the occupier from liability if
that warning was enough to make the visitor reasonably safe.

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Roles v Nathan [1963] 2 All ER 908 (per Lord Denning (obiter)).
Fu Cheung Chun Tom v MTR Corp Ltd [2009] HKEC 370

NB Enabling P to be safe also involves the placement and style of

warnings. If they are easy to miss—because of size or placement or
both—they won’t discharge the duty.

Ip Wan Fung v Cheung Wing Hong [2012] HKEC 813

The notice is at the side of the cashier counter and at waist level … it is my
ruling that it is too small and not affixed at a conspicuous place to serve its
purpose (Deputy Judge Hui).

NB The warning must also be with respect to the particular danger

concerned.

Wood v Wah Tung (E & M) Ltd [2000] HKEC 277

General notices reminding workers of safety at site are in my view not

adequate. They have to be such as to draw the workers’ attention to the
presence of holes, which might be uncovered or unfenced (Deputy Judge
To).

Cf Hau Kit Ho v Starway International Development Ltd [2003] HKEC

1166

Regarding the two small warning signs of “Caution Wet Floor” … [t]hey
were there not to warn the customers of any particular risks but of the
usual risks in a typical toilet floor as caused by a degree of wetness that
one may commonly come across. They cannot cover the special situation
of cleaning with water where the floor would be unusually wet and slippery
(Chan J).

(b) Independent Contractors: s 3(4)(b)

D may have discharged his duty even though injury befalls a visitor if the
injury can be attributed to the fault of an independent contractor who has
worked on the occupier’s premises.

Section 3(4)(b) imposes three requirements for this to occur:

 The occupier must have acted reasonably in entrusting the work to

an independent contractor;
 The occupier must have taken reasonable steps to satisfy himself

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 that the contractor was competent;
 The occupier must have taken reasonable steps to satisfy himself
that the work was done properly.

If D satisfies these requirements the D will presumptively be regarded as

having discharged the duty.

But it is important to note that the provision says “the occupier is not to be
treated without more as answerable if [D has done these three things].”

The “without more” is important; it is the key to there being only a

presumption.

Kristan Bowers Phillips v Initial Environmental Services Ltd [1997] HKCU

594

The section reads … “the occupier is not to be treated without more (my
emphasis) as answerable for the danger” … [T]here was certainly “more”
in the nature of the 3rd Defendants’ own negligence … The pesticide
operation involved a special danger viz. poisoning by inhalation or
ingestion … the 3rd Defendants, in procuring the work to be performed
by their contractors, the 1st Defendants, assumed an obligation to the
occupants … [and they] had control over when and where the work was
to be done. It knew its nature and risks. It was responsible for keeping
people away from the working area and warning them fully (Seagroatt J).

4 No Duty where P Consents

Section 3(5) of the Act states as follows:

The common duty of care does not impose on an occupier any obligation to a
visitor in respect of risks willingly accepted as his by the visitor (the question
whether a risk was so accepted to be decided on the same principles as in
other cases in which one person owes a duty of care to another).

Glofcheski’s textbook (as well as numerous English textbooks that discuss

the exactly worded equivalent there) say that this imports a defence of
volenti into the Act. They are wrong!

Consent in this context negates the duty not the liability!

Tomlinson v Congleton BC [2004] 1 AC 46

Ting Kam Yuen Hong Kong Buddhist Association [1994] HKEC 241

The deceased was to the knowledge of his employer working on the roof.
He was not provided with a safe place of work nor with a safe system of
work … It cannot be seriously suggested that the deceased voluntarily
accepted the risk of working in an unsafe unfenced roof or without the

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 provision of an adequate safety system (Sakhrani J).

5 Excluding Liability

(a) Introduction

Section 3(1) allows for restrictions in the duty owed (ie,

exclusion/limitation of liability).

It says an occupier owes visitors the common duty of care, “except in so

far as he is free to and does extend, restrict, modify or exclude his duty
to any visitor or visitors by agreement otherwise”.

Limits on excluding liability exist under the Control of Exemption Clauses

Ordinance (Cap. 71).

(b) Business Liability

Section 2(2) of the Control of Exemption Clauses Ordinance states that

business liability is:

is liability for breach of obligations or duties arising—

(a) from things done or omitted to be done by a person in the course of a
business (whether his own business or another’s); or
(b) from the occupation of premises used for business purposes of the
occupier,

This is the liability of those who occupy land for business purposes (with
one qualified exception). It says:

liability of an occupier of premises for breach of an obligation or duty

towards a person obtaining access to the premises for recreational or
educational purposes, being liability for loss or damage suffered by reason
of the dangerous state of the premises, is not a business liability of the
occupier unless granting that person such access for the purposes
concerned falls within the business purposes of the occupier.

Where business liability is in view then, two qualifications exist:

 CECO, s 7(1): one cannot exclude liability, by notice, for death or

personal injury.
 CECO, s 7(2): there is a reasonableness requirement regarding the
exclusion of liability, by notice, for other forms of loss caused by

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 negligence.

(c) Domestic Occupiers

If one is not a business occupier, then one can exclude liability by notice
because the CECO doesn’t affect them.

In such cases, if the occupier has taken reasonable steps to bring the
notice to the attention of a visitor, it will be effective.
Ashdown v Williams [1957] 1 QB 409

NB 1 One simply needs to take reasonable steps to bring the conditions to

the attention of the visitors. The notice need not necessarily be seen
by them.

NB 2 There is an important difference between a warning of danger

and a notice excluding liability.

White v Blackmore [1972] 3 All ER 158 (Pre - UCTA)

6. Contracts and Third Parties

Section 4(1) contains a very wordy provision dealing with third parties to
a contract. It states that an occupier either
 the common duty of care (if the contract stipulates a lower standard
of care owed to the other contracting party), or
 the higher standard of care owed to the contracting party (if such a
standard is stipulated in the contract).

7. Landlord and Tenant

Section 4(4) is another wordy provision, but it effectively stipulates the

following:

Where a landlord, L, has a tenancy contract with tenant, T, and L retains

control of common areas (eg, foyer’s in front of lifts), then L owes at least
the common duty of care to members T’s visitors and family.

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C Non-Visitors (mainly Trespassers)

Though Glofcheski’s book deals with the remaining law on Occupiers’

Liability under the heading, ‘Trespassers’, I think it makes sense to follow
the terminology in the English OLA 1984: non-visitors.

This is because visitors are those who were licensees or invitees, but
people exercising rights of way didn’t need an invitation or a licence.

Vodden v Gayton [2001] PIQR P52

McGeown v NIHE [1994] 3 All ER 53.

In relation to trespassers, the leading authority on this area of the law is a

HL case from 1972.

British Railways Board v Herrington [1972] AC 877

an occupier’s duty to trespassers must vary according to his knowledge,

ability and resources … whether an occupier is liable in respect of an
accident to a trespasser on his land would depend on whether a
conscientious humane man with his knowledge, skill and resources could
reasonably have been expected to have done or refrained from doing
before the accident something which would have avoided it (Lord Reid).

This makes clear that the duty is not a uniform one: it varies according to
D’s wealth, knowledge and abilities.

Also, in favour of occupiers is the fact that there is sympathy among the
local judiciary, for allowing insisting that D should know about (a) the
prospect of entrants coming onto D’s land, and (b) the danger that exists.

Chan Yan Nam v Hui Ka Ming [2003] HKEC 20

to become liable [the 2nd defendant] would have to know that the
condition of platform was such that it would be dangerous to a trespasser
who went on to it and it would have to know or expect that someone would
go on to it (Rogers VP).

Also, there would seem to be a facility to rely on warnings and notices.

Wong Wing Ho v Housing Authority [2006] HKEC 2355

[D’s duty was] … to take such steps as common sense or common humanity
would dictate to exclude or to warn or otherwise within reasonable and
practicable limits to reduce or avert danger (Muttrie J).

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NB There is no reason in principle why volenti cannot be invoked, either!

The consent negating a duty provision certainly appears in the 1984 Act;
but outside the Act it would be volenti.

Tomlinson v Congleton BC [2004] 1 AC 46

© John Murphy
August 2023

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