Occupiers' liability - Duty owed to trespassers

Learning Outcomes

This article explores the duty of care owed by occupiers to individuals other than lawful visitors, primarily trespassers, under the Occupiers' Liability Act 1984. It details the specific conditions required for such a duty to arise, the nature and extent of the duty concerning personal injury only, and the relevant defences available. By studying this material, you will be able to identify and apply the key legal principles governing liability towards trespassers to SQE1 assessment scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the principles governing occupiers' liability towards non-visitors, focusing on the Occupiers’ Liability Act 1984 (OLA 1984). You need to be able to distinguish this duty from the duty owed to lawful visitors under the OLA 1957 and apply the specific conditions and scope of the 1984 Act to factual scenarios.

As you work through this article, pay particular attention in your revision to:

  • The definition of an occupier and premises (as under OLA 1957).
  • The definition of a trespasser (non-visitor).
  • The specific conditions under s 1(3) OLA 1984 for a duty to arise.
  • The nature and scope of the duty owed under s 1(4) OLA 1984 (personal injury only).
  • How an occupier might discharge the duty, including the use of warnings (s 1(5) OLA 1984).
  • Relevant defences, particularly consent (volenti) (s 1(6) OLA 1984) and contributory negligence.
  • The limitations on excluding liability under the OLA 1984.

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 the Occupiers' Liability Act 1984, for which type of damage can a trespasser claim?
    1. Damage to personal property only.
    2. Personal injury only.
    3. Both personal injury and damage to property.
    4. Pure economic loss only.
  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? (Select all that apply)
    1. The occupier must be aware of the danger.
    2. The occupier must know the trespasser is in the vicinity of the danger.
    3. The risk must be one against which the occupier might reasonably be expected to offer some protection.
    4. The trespasser must be a child.

  3. True or false? An occupier can discharge their duty under the OLA 1984 simply by putting up a general warning sign like 'Danger'.

Introduction

While the Occupiers' Liability Act 1957 (OLA 1957) outlines the duty owed by occupiers to lawful visitors, a separate framework governs the duty owed to those entering premises without permission. These individuals, commonly referred to as trespassers, were historically afforded minimal protection at common law. The Occupiers' Liability Act 1984 (OLA 1984) was enacted to provide a limited duty of care towards such non-visitors in specific circumstances, primarily concerning personal injury resulting from the state of the premises. Understanding the scope and limitations of this duty is essential for advising clients and assessing liability in SQE1 scenarios.

Key Term: Trespasser A person who goes onto land without any invitation or permission, whose presence is either unknown to the occupier or, if known, is objected to. This includes individuals who may have initially entered as visitors but then exceeded the scope of their permission.

OCCUPIERS' LIABILITY ACT 1984

The OLA 1984 establishes a framework for determining when an occupier owes a duty of care to persons other than lawful visitors, primarily concerning personal injury. It does not cover liability for damage to property belonging to trespassers.

Key Term: Occupiers' Liability Act 1984 Statute governing the duty of care owed by occupiers to persons other than lawful visitors (eg trespassers) in respect of personal injury caused by dangers relating to the state of the premises.

Who is an occupier and what are premises?

The definitions of 'occupier' (a person with sufficient control over the premises) and 'premises' (including land, buildings, and fixed or moveable structures) under the OLA 1984 are the same as those under the OLA 1957. An occupier is someone exercising control over the premises, and there can be more than one occupier simultaneously.

Key Term: Occupier A person who has a sufficient degree of control over premises to justify imposing a duty of care towards those who come onto the premises.

Key Term: Premises Includes land and buildings, as well as fixed or movable structures such as vessels, vehicles, or aircraft (s 1(2) OLA 1984 referring to s 1(3)(a) OLA 1957).

When does a duty arise? (s 1(3) OLA 1984)

Unlike the automatic common duty of care owed to visitors under the OLA 1957, a duty under the OLA 1984 only arises if all three of the following conditions, set out in section 1(3), are met:

  1. Awareness of the 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 or imputed knowledge.
  2. Knowledge of the trespasser's presence: The occupier knows or has reasonable grounds to believe that the non-visitor 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 knowledge.
  3. Reasonable expectation of protection: The risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer the non-visitor some protection. This is an objective test, balancing factors like the nature of the premises, the degree of risk, the practicality of precautions, and the potential nature of the trespasser (e.g., child vs. adult).

If any one of these conditions is not met, no duty of care is owed to the trespasser under the Act.

The Nature of the Duty (s 1(4) OLA 1984)

If the three conditions in section 1(3) are satisfied, section 1(4) states that the duty owed is 'to take such care as is reasonable in all the circumstances of the case to see that [the non-visitor] does not suffer injury on the premises by reason of the danger concerned'.

Key points about this duty:

  • Standard of Care: The standard is 'reasonable care in all the circumstances'. This is generally a lower standard than the common duty of care owed to visitors, reflecting the fact that the entrant is present without permission. What is 'reasonable' depends on the specific facts.
  • Scope: The duty relates only to personal injury (including death), not damage to property (s 1(8) OLA 1984).
  • Source of Danger: The duty relates to dangers due to the state of the premises or things done or omitted to be done on them, not to dangers arising from the trespasser's own activities (Tomlinson v Congleton BC [2003] UKHL 47).

Discharging the Duty (s 1(5) OLA 1984)

An occupier may be able to discharge the duty owed under the OLA 1984 by taking reasonable steps to give warning of the danger concerned or to discourage persons from incurring the risk (s 1(5)).

  • Warnings: The effectiveness of a warning will depend on the circumstances. A simple sign may be sufficient for an adult trespasser regarding an obvious danger, but might be inadequate for a child or for a hidden danger. The warning must be clear enough to alert the trespasser to the specific risk.
  • Discouragement: This could involve physical barriers like fences or locked gates. The adequacy of such measures depends on the nature of the risk and the type of trespasser anticipated.

Worked Example 1.1

A disused quarry owned by Quarry Ltd has steep cliffs and deep water. Quarry Ltd is aware that local teenagers sometimes ignore 'No Entry' signs and swim there in summer. One evening, Maya (17) climbs the fence and jumps into the water from a cliff, hitting submerged rocks hidden below the surface. Quarry Ltd knew the rocks were there but had taken no steps beyond the signs. Is Quarry Ltd likely to owe Maya a duty under the OLA 1984?

Answer: Quarry Ltd likely owes a duty. (a) They are aware of the danger (submerged rocks). (b) They have reasonable grounds to believe trespassers (teenagers) may come into the vicinity of the danger (the quarry water near the cliffs). (c) Given the known danger (hidden rocks) and known trespassers (teenagers, who might be less cautious), it may be reasonable to expect Quarry Ltd to offer some protection beyond standard 'No Entry' signs, perhaps specific warnings about submerged rocks or better fencing near dangerous areas. Therefore, a duty under s 1(3) likely arises. Whether it was breached depends on if the existing signs were sufficient warning in the circumstances.

Defences

Even if a duty is owed and breached, the occupier may have defences.

  • Consent / Volenti Non Fit Injuria (s 1(6) OLA 1984): The Act explicitly preserves the defence of volenti non fit injuria (voluntary assumption of risk). If a trespasser fully understands and willingly accepts the specific risk which causes their injury, the occupier may have a complete defence. This was successfully argued in Ratcliff v McConnell [1999] where a student trespassing in a closed swimming pool at night was injured jumping into the shallow end.
  • Contributory Negligence: The Law Reform (Contributory Negligence) Act 1945 applies. If the trespasser failed to take reasonable care for their own safety, and this contributed to their injuries, their damages may be reduced.
  • Exclusion of Liability: The OLA 1984 does not explicitly state whether liability towards trespassers can be excluded. Unlike the OLA 1957 (which refers to UCTA 1977 and CRA 2015 for business premises/traders), these consumer protection statutes do not apply to trespassers. The legal position is uncertain, but it is arguable whether an occupier can validly exclude liability for personal injury to a trespasser caused by dangers on the premises, especially given the limited nature of the duty imposed by the OLA 1984 itself.

Worked Example 1.2

Farmer Giles owns fields containing an old, derelict barn with a rotten roof. He knows local children sometimes play there despite 'Keep Out' signs. Leo (10) climbs onto the barn roof, which collapses, causing him serious injury. Farmer Giles argues Leo consented to the risk. Is this defence likely to succeed?

Answer: Unlikely. While Leo trespassed, it is difficult to argue a 10-year-old fully appreciated and voluntarily accepted the specific risk of a roof collapse (as required for volenti). The court would assess Leo's understanding based on his age. Contributory negligence is a more likely defence, potentially reducing damages based on what level of care is reasonable for a 10-year-old.

Exam Warning

Do not confuse the duty owed under OLA 1984 with the common duty of care under OLA 1957. The 1984 Act duty is more limited: it arises only if the s 1(3) conditions are met, it only covers personal injury, and the standard of 'reasonable care in the circumstances' is generally lower. Always identify the claimant's status (visitor or non-visitor) first.

Key Point Checklist

This article has covered the following key knowledge points:

  • The Occupiers' Liability Act 1984 governs the duty owed by occupiers to non-visitors (including trespassers) regarding personal injury.
  • The duty under OLA 1984 is not automatic; it arises only if the conditions in s 1(3) are met (occupier's knowledge of danger, occupier's knowledge of trespasser's presence, reasonable expectation of protection).
  • If a duty arises, the occupier must take such care as is reasonable in the circumstances to see the non-visitor is not injured by the danger (s 1(4)). This duty does not extend to property damage.
  • The duty relates to dangers due to the state of the premises, not the trespasser's own risky activities.
  • An occupier can potentially discharge the duty through adequate warnings or discouragement (s 1(5)).
  • The defence of consent (volenti) is preserved by s 1(6) OLA 1984.
  • Contributory negligence can reduce a trespasser's damages.
  • The ability to exclude liability under the OLA 1984 is legally uncertain.

Key Terms and Concepts

  • Trespasser
  • Occupiers' Liability Act 1984
  • Occupier
  • Premises
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