Occupiers' liability - Defences and exclusion of liability

Learning Outcomes

This article examines the defences available to an occupier when facing a claim under the Occupiers’ Liability Act 1957 or the Occupiers’ Liability Act 1984. It also outlines the extent to which an occupier can exclude liability. For the SQE1 assessments, you need to understand how the defences of consent (volenti non fit injuria), contributory negligence, and warnings operate in practice. You also need to appreciate the statutory restrictions on excluding liability, particularly concerning death and personal injury. This will enable you to apply the relevant legal principles to SQE1-style single best answer questions.

SQE1 Syllabus

For SQE1, you are required to understand the defences applicable to claims under the Occupiers' Liability Acts 1957 and 1984, and the rules regarding the exclusion of liability. It is likely that you will need to identify the relevant defences in a scenario and advise on their potential success, or determine the validity of an exclusion clause.

As you work through this article, focus your revision on:

• The requirements for the defence of consent (volenti non fit injuria) in occupiers' liability claims.
• How contributory negligence can reduce damages awarded to a claimant.
• The role and adequacy of warnings in discharging the occupier's duty.
• The statutory limitations on excluding liability for death, personal injury, and other damage under UCTA 1977 and CRA 2015.
• Comparing the availability and application of defences under the 1957 Act and the 1984 Act.

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. Which defence operates as a complete bar to a claim under the Occupiers' Liability Acts?
   1. Contributory negligence
   2. Consent (volenti non fit injuria)
   3. Warnings
   4. Exclusion clause subject to reasonableness
2. Under the Occupiers' Liability Act 1957, can a business occupier exclude liability for death or personal injury caused by their negligence?
   1. Yes, if the exclusion clause is clearly worded.
   2. Yes, if the visitor agrees to it in writing.
   3. No, under any circumstances.
   4. Yes, if the clause satisfies the reasonableness test.
3. What is the primary effect of a successful plea of contributory negligence in an occupiers' liability claim?
   1. The claim is dismissed entirely.
   2. The occupier receives damages from the claimant.
   3. The claimant's damages are reduced.
   4. The occupier must provide additional warnings.

Introduction

Previous articles have explored the duties owed by occupiers to visitors (under the Occupiers’ Liability Act 1957) and non-visitors (under the Occupiers’ Liability Act 1984). However, even where an occupier is found to have breached the relevant duty of care, they may not be liable, or their liability may be reduced, if they can successfully raise a defence. Occupiers may also seek to prevent liability arising in the first place by excluding or limiting their duty through contractual terms or notices. This article examines the key defences available and the rules surrounding the exclusion of liability under both Acts.

Defences to Claims by Visitors (OLA 1957)

Where a lawful visitor suffers injury due to the state of the premises, and the occupier is potentially in breach of the common duty of care under the OLA 1957, the occupier may rely on several defences.

Consent (Volenti non fit injuria)

Key Term: Volenti non fit injuria A complete defence where the claimant voluntarily agrees to accept the full legal risk of harm arising from the defendant's negligence. The claimant must have full knowledge of the nature and extent of the risk.

Section 2(5) OLA 1957 preserves the common law defence of volenti non fit injuria (consent). For the defence to succeed, the occupier must prove that the visitor:

1. Had full knowledge of the precise risk involved; and
2. Voluntarily agreed to accept that risk.

Mere knowledge of a danger does not automatically imply consent to the legal risk. For example, an employee who knows their workplace is dangerous but continues to work there out of economic necessity is unlikely to be held to have voluntarily accepted the risk (Smith v Baker & Sons [1891] AC 325). Similarly, the defence is unlikely to succeed against rescuers acting under a legal, social, or moral duty (Haynes v Harwood [1935] 1 KB 146).

Worked Example 1.1

Rhea visits an outdoor activity centre run by Adventure Ltd. Before undertaking a high-ropes course, she signs a form acknowledging the natural risks of falling and confirming she participates willingly. She ignores specific safety instructions given by the instructor about clipping her harness correctly onto the safety line. She falls and is injured. Adventure Ltd had ensured the course was properly maintained and the instructor was competent. Can Adventure Ltd rely on the defence of consent?

Answer: Adventure Ltd might argue Rhea consented by signing the form and participating willingly. However, while she consented to the natural risks, she likely did not consent to risks created by ignoring specific safety instructions. The better argument for Adventure Ltd might be contributory negligence, based on Rhea ignoring the instructions. The success of volenti would depend on whether the court considers she accepted the specific risk arising from her own failure to follow instructions, which is less likely than acceptance of risks natural to the activity itself.

Contributory Negligence

Key Term: Contributory negligence A partial defence where the claimant’s own lack of reasonable care for their safety contributes to the damage suffered. Liability is apportioned between the claimant and defendant according to their respective fault.

If a visitor fails to take reasonable care for their own safety and this contributes to their injury, their damages may be reduced under the Law Reform (Contributory Negligence) Act 1945. This is a partial defence, meaning it reduces the amount of damages payable rather than defeating the claim entirely. The court assesses the extent to which the visitor’s fault contributed to the harm and reduces the damages accordingly.

Warnings

As discussed previously, an occupier can discharge the common duty of care by giving an effective warning (s 2(4)(a) OLA 1957). A warning must be sufficient, in all the circumstances, to enable the visitor to be reasonably safe. If an adequate warning is given, the occupier is deemed not to have breached their duty, and therefore no question of defences arises. However, simply putting up a sign does not automatically absolve the occupier; its effectiveness depends on the specific danger, the type of visitor, and the clarity of the warning.

Exclusion of Liability (OLA 1957)

Section 2(1) OLA 1957 allows an occupier to ‘extend, restrict, modify or exclude’ their duty to visitors by agreement or otherwise, in so far as they are free to do so. This means occupiers can use notices or contract terms to limit or completely exclude their liability. However, this freedom is significantly restricted by legislation, primarily the Unfair Contract Terms Act 1977 (UCTA) and the Consumer Rights Act 2015 (CRA).

Statutory Controls

The ability to exclude liability depends heavily on whether the occupier is acting in the course of a business and the type of harm suffered.

• UCTA 1977: This applies mainly to business-to-business situations or where the visitor enters for recreational or educational purposes not connected with the occupier's business. Under UCTA s 2(1), a business occupier cannot exclude or restrict liability for death or personal injury resulting from negligence (which includes breach of the common duty of care). For other types of damage (e.g., property damage), liability can only be excluded or restricted if the term or notice satisfies the reasonableness test (UCTA s 2(2) and s 11).
• CRA 2015: This applies where the occupier is a 'trader' and the visitor is a 'consumer'. Under CRA s 65(1), a trader cannot exclude or restrict liability for death or personal injury resulting from negligence. For other damage, any attempt to exclude or restrict liability is subject to a fairness test (CRA s 62). A term is unfair if, contrary to good faith, it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer.

Private occupiers (e.g., householders) are generally not subject to UCTA or CRA and have greater freedom to exclude liability, provided reasonable steps are taken to bring the exclusion to the visitor's attention.

Exam Warning

Do not confuse a warning notice intended to discharge the duty of care (s 2(4)(a) OLA 1957) with a notice intended to exclude liability (s 2(1) OLA 1957). A warning aims to make the visitor safe; an exclusion notice aims to remove liability even if the visitor is injured due to the occupier's breach. The validity of exclusion notices is subject to UCTA/CRA.

Defences to Claims by Non-Visitors (OLA 1984)

The OLA 1984 governs the duty owed to persons other than visitors, primarily trespassers. If the conditions for owing a duty under s 1(3) are met and that duty is breached, the occupier may still rely on certain defences.

Consent (Volenti non fit injuria) (Non-Visitors)

Section 1(6) OLA 1984 expressly preserves the defence of volenti. If a trespasser appreciates the full nature and extent of the risk and willingly accepts it, the occupier will have a complete defence (Ratcliff v McConnell [1999] 1 WLR 670). This is more likely to apply where the risk is obvious, such as leaping into shallow water (Tomlinson v Congleton BC [2003] UKHL 47).

Worked Example 1.2

Leo, aged 19, climbs over a high fence into a disused quarry late at night, ignoring several prominent 'Danger - Keep Out' signs. He knows the quarry contains deep water pools from local reputation. He jumps into a pool from a ledge and hits submerged rocks, suffering serious injury. The quarry owner was aware that people sometimes trespassed but considered the fence and signs sufficient deterrent. Can the owner rely on the defence of consent?

Answer: Yes, it is highly likely the owner can rely on volenti. Leo is a trespasser who deliberately ignored clear warnings. He was aware of the general danger (deep water) and chose to jump in anyway, especially late at night. The court would likely find he willingly accepted the risk of hitting submerged objects, an obvious danger associated with jumping into unknown water.

Warnings (Non-Visitors)

Section 1(5) OLA 1984 states that the duty may be discharged by taking reasonable steps to give warning of the danger or discourage persons from incurring the risk. The standard required for warnings to trespassers is generally considered lower than for visitors. A clear 'Danger' sign may suffice for an adult trespasser regarding an obvious risk.

Contributory Negligence (Non-Visitors)

Although not explicitly mentioned in the 1984 Act, case law confirms that the Law Reform (Contributory Negligence) Act 1945 applies. If a trespasser fails to take reasonable care for their own safety, their damages can be reduced (Revill v Newbery [1996] QB 567).

Exclusion of Liability

The OLA 1984 is silent on whether an occupier can exclude the duty owed to trespassers. There is no definitive case law, and academic opinion is divided. Given that the 1984 Act imposes a basic level of duty for humanitarian reasons, it is arguable that excluding this limited duty might be contrary to public policy, but the position remains uncertain. UCTA and CRA would not apply as a trespasser is unlikely to be a consumer or acting in the course of business.

Summary of Defences

Key Point Checklist

This article has covered the following key knowledge points:

• Occupiers may rely on the general defences of consent (volenti non fit injuria) and contributory negligence against claims under both the OLA 1957 and OLA 1984.
• Consent requires the claimant to have full knowledge of the risk and to have voluntarily accepted it. It is a complete defence but difficult to establish, especially against employees or rescuers.
• Contributory negligence applies where the claimant’s carelessness contributes to their injury, resulting in a reduction in damages.
• Warnings can discharge the occupier's duty under both Acts if they are adequate for the circumstances (s 2(4)(a) 1957 Act; s 1(5) 1984 Act).
• Occupiers can exclude liability to visitors under the 1957 Act (s 2(1)), but this is heavily restricted by UCTA 1977 and CRA 2015, especially regarding death and personal injury caused by negligence.
• It is uncertain whether liability to trespassers under the 1984 Act can be excluded.

Key Terms and Concepts

• Volenti non fit injuria
• Contributory negligence