Occupiers' liability - Breach of duty towards trespassers

Learning Outcomes

This article outlines the duty of care owed by occupiers to individuals classified as trespassers under the Occupiers’ Liability Act 1984 (OLA 1984). It details the specific conditions under which such a duty arises and the standard of care required. For the SQE1 assessments, you need to understand how these principles apply to scenarios involving injuries sustained by trespassers, differentiate this duty from that owed to lawful visitors, and recognise relevant defences. This knowledge will enable you to apply the statutory rules effectively to multiple-choice questions.

SQE1 Syllabus

For SQE1, you must understand the principles governing an occupier's liability towards trespassers. This involves knowing when a duty of care arises under the OLA 1984 and the standard of that duty. You should be prepared to apply these rules to factual scenarios, determining liability and identifying relevant defences in the context of single best answer questions.

Pay particular attention in your revision to:

  • The distinction between visitors (OLA 1957) and trespassers (OLA 1984).
  • The specific conditions under s 1(3) OLA 1984 that must be met for a duty to arise towards a trespasser.
  • The nature and extent of the duty owed under s 1(4) OLA 1984.
  • How warnings and other precautions affect the occupier's liability.
  • The types of damage recoverable under the OLA 1984 (personal injury only).
  • Relevant defences, such as consent and contributory negligence.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Under which Act is the duty of care owed by an occupier to a trespasser primarily governed?
    1. Occupiers' Liability Act 1957
    2. Occupiers' Liability Act 1984
    3. Law Reform (Contributory Negligence) Act 1945
    4. Health and Safety at Work etc. Act 1974
  2. Which of the following conditions MUST be met for an occupier to owe a duty of care to a trespasser under the OLA 1984?
    1. The occupier must have expressly invited the trespasser onto the premises.
    2. The trespasser must have suffered damage to their property.
    3. The occupier must be aware of the danger or have reasonable grounds to believe it exists.
    4. The risk must be one against which the occupier cannot reasonably be expected to offer protection.

  3. True or False? An occupier owes the same common duty of care to both lawful visitors and trespassers.

  4. Can an occupier discharge their duty to a trespasser under the OLA 1984 simply by providing a warning of the danger?

Introduction

While the Occupiers' Liability Act 1957 establishes the duty owed to lawful visitors, a different statutory framework, the Occupiers' Liability Act 1984 (OLA 1984), governs the duty owed to persons other than visitors, primarily trespassers. Historically, the common law afforded minimal protection to trespassers, reflecting a strong emphasis on landowners' rights. However, cases like British Railways Board v Herrington [1972] AC 877 recognised a limited duty of 'common humanity', particularly towards children. The OLA 1984 was enacted to clarify and define the extent of the duty owed to non-visitors, balancing the occupier's interests with the need to prevent foreseeable injury. For SQE1, understanding this specific duty is essential.

LIABILITY TO TRESPASSERS: OCCUPIERS' LIABILITY ACT 1984

The OLA 1984 applies specifically to liability for dangers posed by the state of the premises, not dangers arising from activities carried out on the premises. It covers personal injury or death but, importantly, excludes liability for damage to property belonging to the trespasser (s 1(8) OLA 1984).

Key Definitions

The terms 'occupier' and 'premises' carry the same meaning under the 1984 Act as they do under the 1957 Act.

Key Term: Occupier
A person who has a sufficient degree of control over the premises to the extent that they ought to realise that any failure on their part to use care may result in injury to a person coming lawfully or unlawfully onto the premises. There can be more than one occupier.

Key Term: Premises
Includes land and buildings, as well as fixed and moveable structures such as vehicles, vessels, and aircraft (s 1(9) OLA 1984, referencing s 1(3)(a) OLA 1957).

Key Term: Trespasser
A person who goes onto land without any invitation or permission, whose presence is unknown to the occupier or, if known, is objected to. This includes visitors who exceed the bounds of their permission.

When is a Duty Owed? The Conditions under Section 1(3)

Unlike the automatic duty owed to visitors under the 1957 Act, an occupier only owes a duty to a trespasser under the 1984 Act if all three conditions specified in s 1(3) are satisfied:

  • (a) Awareness of Danger: The occupier is aware of the danger or has reasonable grounds to believe it exists. This is a subjective test based on the occupier's actual knowledge or what they ought reasonably to have known.
  • (b) Knowledge of Trespasser: The occupier knows or has reasonable grounds to believe that the trespasser is in the vicinity of the danger concerned, or that they may come into the vicinity of the danger. Again, this relates to the occupier's actual or reasonable belief.
  • (c) Reasonableness of Protection: The risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer the trespasser some protection. This is an objective test considering factors like the nature of the risk, the type of trespasser (e.g., child vs. adult), and the cost/practicality of precautions.

If any of these conditions are not met, no duty of care arises under the 1984 Act.

Nature of the Duty under Section 1(4)

Where the three conditions in s 1(3) are met, the duty owed under s 1(4) is to 'take such care as is reasonable in all the circumstances of the case to see that [the trespasser] does not suffer injury on the premises by reason of the danger concerned'.

This standard of 'reasonable care' is lower than the 'common duty of care' owed to visitors under the 1957 Act. The court will consider various factors to determine what is reasonable, including:

  • The nature of the premises (e.g., industrial site vs. residential garden).
  • The degree of danger (hidden vs. obvious).
  • The practicality and cost of precautions.
  • The likely age and awareness of the trespasser (more care may be expected for child trespassers).
  • The character of the entry (e.g., inadvertent trespass vs. deliberate criminal entry).

Discharging the Duty: Warnings (Section 1(5))

An occupier may be able to discharge the duty owed under s 1(4) by taking reasonable steps to warn the trespasser of the danger or discourage them from incurring the risk (s 1(5) OLA 1984). Unlike the requirement for warnings to visitors (which must enable the visitor to be reasonably safe), a warning to a trespasser simply needs to be reasonable in the circumstances to alert them to the danger. A warning sign may suffice for an adult trespasser but might be inadequate for a young child who cannot read or appreciate the danger. Physical barriers may be required in addition to or instead of warnings, depending on the circumstances.

Obvious Risks and Activities

The duty under OLA 1984 relates to dangers due to the state of the premises. Occupiers are generally not liable for injuries arising from obvious risks or from the trespasser's own dangerous activities, rather than the condition of the land itself.

Worked Example 1.1

A disused quarry, owned by Quarry Ltd, is known locally as a spot where teenagers trespass to swim in the water-filled pit, despite 'No Trespassing' signs. The water contains hidden underwater rocks. Quarry Ltd is aware of both the trespassing and the hidden rocks. Liam, 17, ignores the signs, jumps into the water, hits a hidden rock and suffers serious injury. Does Quarry Ltd owe Liam a duty under OLA 1984?

Answer: Quarry Ltd likely owes Liam a duty.
(a) They are aware of the danger (hidden rocks).
(b) They know teenagers trespass and swim there (reasonable grounds to believe a trespasser may be in the vicinity of the danger).
(c) Given the severity of the risk (serious injury/death from hidden rocks) and the known trespassing by teenagers, it is likely reasonable to expect Quarry Ltd to offer some protection (e.g., better fencing, more prominent warnings specifically about hidden rocks).
Therefore, a duty under s 1(4) arises. Whether Quarry Ltd breached that duty depends on the reasonableness of their existing precautions.

Worked Example 1.2

Continuing from Worked Example 1.1, Quarry Ltd had placed signs stating 'DANGER - DEEP WATER - NO SWIMMING'. Liam saw these signs but chose to jump anyway. Would the warning signs be sufficient to discharge Quarry Ltd's duty?

Answer: Potentially not. While the signs warn against swimming and deep water, they do not specifically mention the hidden rocks, which is the actual danger that caused Liam's injury. A court might find that the warning was not sufficient in the circumstances to alert Liam to the specific risk he encountered (s 1(5) OLA 1984). Furthermore, the case of Tomlinson v Congleton Borough Council [2003] UKHL 47 suggests liability is less likely where the injury results from the claimant's own risky activity (jumping into water of unknown depth) rather than a danger due to the state of the premises, but the hidden rocks here do relate to the state of the premises. The adequacy of the warning is key.

Exam Warning

Remember that the OLA 1984 only covers personal injury. Claims for damage to a trespasser's property (e.g., clothing torn on barbed wire) are not recoverable under this Act. Also, distinguish liability arising from the state of the premises (covered by the Act) from liability for activities carried out on the premises (which would fall under general negligence).

Defences

If a duty is owed and breached under the OLA 1984, the occupier may still rely on certain defences:

  • Consent (Volenti non fit injuria): Explicitly preserved by s 1(6) OLA 1984. If the trespasser fully understood and voluntarily accepted the specific risk, the occupier may have a complete defence (Ratcliff v McConnell [1999] 1 WLR 670).
  • Contributory Negligence: If the trespasser failed to take reasonable care for their own safety, their damages may be reduced under the Law Reform (Contributory Negligence) Act 1945. This is common in trespasser cases (Revill v Newbery [1996] QB 567).
  • Exclusion of Liability: The 1984 Act is silent on whether liability can be excluded. While possible for non-business occupiers regarding visitors under the 1957 Act, it is uncertain and likely very difficult, if not impossible, to exclude liability for personal injury or death to trespassers, especially given the specific conditions required before a duty arises.

Key Point Checklist

This article has covered the following key knowledge points:

  • The Occupiers' Liability Act 1984 governs the duty owed by occupiers to persons other than visitors (primarily trespassers).
  • The duty under the 1984 Act relates only to personal injury or death caused by the state of the premises; property damage is excluded.
  • A duty only arises if three conditions under s 1(3) are met: occupier's awareness of danger, knowledge/reasonable belief trespasser may be near danger, and reasonableness of expecting occupier to offer protection.
  • If a duty arises, the standard of care under s 1(4) is to take such care as is reasonable in all the circumstances.
  • Warnings (s 1(5)) may discharge the duty if reasonable in the circumstances, but the standard is less onerous than for visitors.
  • Occupiers are generally not liable for obvious risks or injuries resulting solely from the trespasser's own activities.
  • Defences of consent (volenti) and contributory negligence apply. Exclusion of liability is highly uncertain.

Key Terms and Concepts

  • Occupier
  • Premises
  • Trespasser
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