Introduction
The Occupiers’ Liability Act 1984 (OLA 1984) establishes a legal framework that governs the duty of care owed by occupiers of premises to individuals who are not their lawful visitors. This legislation departs from the common law, which offered limited protection to trespassers. The core concept of the OLA 1984 revolves around circumstances where an occupier is required to take reasonable steps to prevent injury to non-visitors due to dangers on their property. The Act's technical principles outline a conditional duty based on the occupier's awareness of the danger, knowledge of the non-visitor's presence, and the reasonableness of offering protection. Key requirements include that an occupier must be aware of a danger, or have reasonable grounds to believe it exists, that they know, or have reasonable grounds to believe, a non-visitor is in the vicinity of that danger, or may come into it, and that it is reasonable to expect the occupier to provide protection against the risk. These stipulations are designed to balance the rights of property owners with the safety of those who may be on their land without permission.
The Scope and Purpose of the Occupiers' Liability Act 1984
The Occupiers' Liability Act 1984 serves to define and regulate the responsibility of occupiers of premises to individuals who are not considered lawful visitors under the Occupiers' Liability Act 1957. This includes trespassers, those exercising private rights of way, and entrants to national parks, among others. The Act does not create a broad or general duty to protect all persons on land, but instead, it specifies conditions under which a duty of care to non-visitors arises. The primary goal of the OLA 1984 was to address deficiencies in the common law which prior to the Act, afforded very little protection to those on property without permission and who may have been injured due to dangerous conditions there. Before this Act, the only responsibility of land owners towards trespassers was to not cause injury to them deliberately or recklessly. Herrington v British Rail Board [1972] AC 877 served as a significant case in creating a standard of 'common humanity', which subsequently led to calls for legislative change resulting in the OLA 1984. The Act does not aim to make land owners automatic insurers of safety but instead seeks to identify situations where some level of protection is reasonable, based on the factors defined in section 1 (3).
Key Elements of Liability Under OLA 1984
Section 1(3) of the Act is crucial, as it sets out the conditions under which an occupier of premises owes a duty of care to a non-visitor. Three criteria must be met to establish this duty. Firstly, an occupier must be aware of the danger, or have reasonable grounds to believe that it exists; Swain v Natui Ram Puri [1996] P.I.Q.R. P422 clarifies this requires actual knowledge and not constructive knowledge. Secondly, the occupier must know, or have reasonable grounds to believe, that the non-visitor is in the vicinity of the danger concerned, or may come into that vicinity. Thirdly, the risk must be one against which, in all the circumstances of the case, it is reasonable to expect the occupier to offer some protection. This creates a threshold of awareness, knowledge and reasonable expectation of action that the non-visitor has to establish to demonstrate a legal obligation to them. The duty that arises, if these conditions are met, is outlined in section 1 (4) which states the occupier must take “such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned”. The standard of care is reasonable, not absolute, and takes into account all circumstances of the case. This is different to the Occupiers Liability Act 1957 where a common duty of care applies.
Discharging the Duty Under the 1984 Act
The OLA 1984 provides mechanisms for occupiers to discharge their duty of care to non-visitors. Section 1(5) states that a duty can be discharged by "taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.” These steps do not necessarily require the occupier to completely eliminate the danger, but rather to take reasonable measures to alert non-visitors to the danger or prevent their access to it. For example, the erection of clear warning signs may be sufficient in some situations, depending on their visibility, content, and location; Westwood v Post Office [1973] 1 QB 591 illustrates this point. Alternatively, the occupier might employ measures to actively discourage risk-taking, such as fences or barriers, where appropriate. The determination of what constitutes 'reasonable' steps is highly fact-specific and depends on factors like the nature of the danger, its location, the likelihood of non-visitors being exposed to it and the practicality of preventative measures. It is worth noting that no duty is owed in respect of loss or damage to property, by reason of this Act, only personal injury.
Case Law and Interpretation of the 1984 Act
Various case laws further illuminate the application and interpretation of the OLA 1984. In Tomlinson v Congleton BC [2004] 1 AC 46, it was established that no duty is imposed on occupiers to protect against obvious risks. The court considered it vital that people accept a degree of responsibility for their own safety when undertaking an activity with inherent risk; Donoghue v Folkestone Properties [2003] 2 WLR 1138, highlighted the idea that the duty of care may vary with time. Additionally, the courts have looked closely at the capacity of the non-visitor in the case of children. Keown v Coventry NHS Trust [2006] 1 WLR 953, clarified that when a danger is created by the actions of a child, instead of the condition of premises, the occupier may not be liable, despite the age of the claimant. This was contrasted by Young v Kent County Council [2005] EWHC 1342, which found the defendant liable, under the 1984 Act, for injuries to a child caused by a brittle skylight; the court emphasized the specific dangers to children, where a suitable risk assessment and some simple preventative measures had not been taken. Additionally, the case of Jolley v Sutton London Borough Council [2000] 1 WLR 1082 determined that only the kind of injury need be foreseeable, not the specific outcome, when an occupier is found to be negligent and in breach of the 1984 Act. These rulings demonstrate the courts' approach to balancing the occupiers’ responsibilities with the principle of individual accountability.
Defences to Liability and Related Legislation
The Occupiers’ Liability Act 1984 also outlines some explicit defences to liability, notably in Section 1(6), where it states no duty is owed for "risks willingly accepted." This concept, known as volenti non fit injuria, suggests that if a non-visitor knowingly and voluntarily accepts the risk of injury, an occupier will not be held liable. The courts will need to evaluate if the claimant had full knowledge of the risk involved, and fully accepted it. It should be noted however, that a defence of volenti is rarely successful. The Act does not allow an occupier to limit their liability as does the 1957 Act. The courts have made it clear that an occupier cannot treat a trespasser as an outlaw, as seen in the case of Revill v Newbery [1996] 2 WLR 239, in which a claim of ex turpi causa non oritur actio was rejected, where the trespasser who was injured, was still entitled to damages from the occupier who had used excessive violence. Beyond this specific defence, other relevant legislation, such as the Defective Premises Act 1972, establishes a duty to build dwellings properly, with potential liability extending to vendors and lessors, if defective premises cause personal injury; this would work in conjunction with the Occupiers' Liability Acts. The Unfair Contract Terms Act 1977, also prevents limiting liabilities for death or personal injury caused by negligence, in some circumstances. These complementary legal provisions operate alongside the OLA 1984 to provide a comprehensive structure for premises-related safety and accountability.
Conclusion
The Occupiers’ Liability Act 1984 provides a framework for assessing the duties of occupiers of premises to non-visitors. Key concepts like the occupier's awareness of danger, the non-visitor’s presence and the reasonableness of offering protection are crucial in determining liability. The courts have consistently emphasized that the duty is not absolute, and must be balanced against the personal responsibility of individuals for their safety and choices. Cases, such as Tomlinson v Congleton BC, Keown v Coventry NHS Trust and Donoghue v Folkestone Properties, illustrate the nuances of applying the Act’s provisions. This legislation operates within the broader context of tort law, relating to the Occupiers' Liability Act 1957, Defective Premises Act 1972 and the Unfair Contract Terms Act 1977 which all contribute to the landscape of premises related liability in England and Wales.
