Occupier’s duty of care: misconduct does not make a resident into a trespasser

Overview

This Court of Appeal decision clarifies the circumstances in which an occupier's duty of care under the Occupiers' Liability Act 1957 ("OLA 1957") will apply — even where a person on the premises engages in conduct that the occupier disapproves of or tries to stop. 

The judgment has significant implications for landowners whose properties are occupied by people whose behaviour may sometimes fall outside the boundaries of what the landowner would ordinarily allow.

Landowners cannot assume that a person's misconduct on the premises will relieve them of their statutory duty of care. The focus of the OLA 1957 is on the state of the premises, not the conduct of the visitor. Proactive risk management and adherence to current safety standards are the most effective ways of managing an occupier's liability exposure.

The Facts

An 18-year-old soldier, required by his employer, the Ministry of Defence (MoD) to live in Army barracks, fell from a second-floor landing over a balustrade approximately 900mm high during a late-night episode of intoxicated horseplay with a fellow soldier. He suffered catastrophic injuries including a significant brain injury. The MoD argued that the soldier's drunken and allegedly criminal behaviour placed him outside the scope of his licence to occupy the premises, converting him from a lawful visitor into a trespasser — thereby extinguishing the OLA 1957 duty. 

The Decision

The Court of Appeal unanimously dismissed the MoD's appeal on all six grounds and these are the key points for landowners:

1. Misconduct does not automatically convert a visitor into a trespasser. The court firmly rejected the proposition that a lawful visitor who does something the occupier disapproves of thereby becomes a trespasser. Lord Justice Stuart-Smith described the MoD's argument— that a visitor becomes a trespasser whenever they do something they know the occupier would ask them to stop — as "far, far too wide". 

2. The OLA 1957 duty is not "ephemeral". The court highlighted the unworkable consequences of a rule under which a person could move between visitor and trespasser status moment by moment. On the MoD's case, the soldier would have been a trespasser on the landing during the brief seconds of the scuffle, but would have reverted to being a lawful visitor the following morning. The judge said: "I do not accept that the common duty under the OLA 1957 is so ephemeral". 

3. The duty extends to foreseeable misuse of the premises. The court emphasised that occupiers must account for the fact that visitors — particularly those who live on the premises — will not always behave with perfect care. This reflects the statutory recognition in the OLA 1957 that visitors "are not always careful". Visitors to residential accommodation may drink, relax, or be off-guard, and these are "facts of life" for the occupier of the premises. 

4. Risk assessments must use current standards. The balustrade had been in place since approximately 1939 and complied with the standards at that time. However, since the 1970s, Building Regulations have required a minimum height of 1,100mm for common stair landings.  The court held that occupiers must keep safety under review against current professional standards, and that compliance with the standards in force at the time of construction does not absolve an occupier if conditions are later assessed as giving rise to an unacceptable risk. 

5. No contributory negligence. The court upheld the trial judge's finding that there was no reduction for contributory negligence, noting that the claimant could not reasonably be expected to have appreciated the danger posed by the low balustrade when the MoD's own risk assessments had failed to identify it. 

Practical Implications for Landowners

This decision reinforces several important principles for landowners in England and Wales whose land or property is occupied by tenants, licensees, guests, employees, or other visitors:

The threshold for losing "visitor" status is high. A person does not become a trespasser simply because they engage in behaviour the landowner disapproves of. Landowners should not assume that anti-social or even reckless conduct by an occupier will remove their OLA 1957 obligations.

Residential occupiers attract a heightened expectation. Where a person lives on premises — whether as a tenant, employee, or licensee — the occupier must accept that they will use the premises for ordinary living activities, including relaxing, drinking, and being "off-guard". The duty of care extends to these foreseeable uses. 

Historic compliance is not a defence. Buildings which were built to older standards must be kept under continuous review. A landowner who fails to update their infrastructure to reflect current safety standards risks liability, even where the original construction was historically compliant. The cost of remedial works will be weighed against the severity of potential harm — in this case, raising the balustrade across the entire Army estate cost only around £400,000. 

Robust, ongoing risk assessment is essential. The MoD's pre-accident risk assessments were inadequate. Landowners should ensure that risk assessments are rigorous, consider the full range of people likely to use the premises (including their height, build, and likely behaviour), and are updated regularly. 

The position on trespassers remains distinct. While this case does not directly address the Occupiers' Liability Act 1984 (which governs the more limited duty owed to trespassers), the court's reluctance to allow a momentary act of misconduct to convert a visitor into a trespasser suggests that landowners should be cautious about relying on trespasser status to limit their exposure. Where occupation is mixed — part lawful, part unauthorised — the safer course is to maintain premises to a standard that satisfies the higher OLA 1957 duty.

Case: ZZZ v The Ministry of Defence [2026] EWCA Civ 875