Occupiers' liability - Occupiers' Liability Act 1984 (non-visitors/trespassers)

Learning Outcomes

After reading this article, you will be able to explain when and how an occupier owes a duty of care to trespassers under the Occupiers' Liability Act 1984. You will be able to identify the statutory conditions that trigger the duty, the standard of care required, and the main defences available to occupiers. You will also be able to apply these principles to SQE1-style scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the statutory regime governing occupiers’ liability to non-visitors (trespassers) under the Occupiers’ Liability Act 1984. Focus your revision on:

• the statutory conditions for when a duty is owed to trespassers under the Act
• the standard of care required by occupiers towards trespassers
• the types of loss covered by the Act
• the main statutory and common law defences available to occupiers
• the application of these principles to practical scenarios and MCQs

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. What three statutory conditions must be satisfied before an occupier owes a duty to a trespasser under the Occupiers’ Liability Act 1984?
2. True or false? The duty under the Occupiers’ Liability Act 1984 covers both personal injury and property damage suffered by trespassers.
3. Which of the following is NOT a valid defence for an occupier facing a claim under the Occupiers’ Liability Act 1984? a) Volenti (consent)
   b) Contributory negligence
   c) Exclusion of liability for personal injury
   d) Warning signs (where reasonable)
4. In what circumstances will a warning sign discharge an occupier’s duty to a trespasser?

Introduction

When a person enters land or premises without permission, they are classed as a trespasser. The Occupiers’ Liability Act 1984 sets out when and how an occupier may be liable for injuries suffered by trespassers due to dangers on the premises. This article explains the statutory conditions for liability, the standard of care required, and the main defences available to occupiers.

Statutory framework: when does a duty arise?

The Occupiers’ Liability Act 1984 replaced the old common law rule that occupiers owed trespassers only a minimal duty (essentially, not to cause intentional or reckless harm). The Act now imposes a statutory duty of care in certain circumstances.

Key Term: trespasser
A person who enters premises without the occupier’s express or implied permission, or who exceeds the scope of any permission given.

Key Term: occupier
A person with sufficient control over premises to be able to take steps to prevent injury to others entering the premises.

The three statutory conditions

Section 1(3) of the Act states that an occupier owes a duty to a trespasser if all of the following are satisfied:

1. The occupier is aware of the danger or has reasonable grounds to believe it exists.
2. The occupier knows or has reasonable grounds to believe that a trespasser is in the vicinity of the danger or may come into the vicinity.
3. The risk is one against which, in all the circumstances, the occupier may reasonably be expected to offer some protection.

Key Term: statutory duty (Occupiers’ Liability Act 1984)
The duty imposed by the Act on occupiers to take reasonable care to prevent injury to trespassers from dangers on the premises, but only if the statutory conditions are satisfied.

Scope of the duty

The duty under the Act is narrower than that owed to lawful visitors. It is owed only in respect of injury (including death) to trespassers. The Act does not cover damage to a trespasser’s property.

Key Term: danger (under the Act)
A risk of injury arising from the state of the premises or things done or omitted to be done on them.

Standard of care required

If the statutory duty arises, section 1(4) requires the occupier to take such care as is reasonable in all the circumstances to see that the trespasser does not suffer injury by reason of the danger.

Relevant factors include:

• the nature and seriousness of the danger
• the likelihood of trespassers being present
• the age and vulnerability of potential trespassers (e.g., children)
• the cost and practicality of precautions
• the obviousness of the risk

Key Term: reasonable care (under the Act)
The standard of care required of an occupier, judged by what is reasonable in all the circumstances to prevent injury to trespassers.

Worked Example 1.1

A council owns a park with a deep ornamental pond. There are clear signs stating "Danger: Deep Water. No Swimming." Children regularly climb over the fence to swim in the pond. One night, a teenager trespasses, ignores the signs, and is injured after jumping in.

Answer: The council is likely to be aware of the danger and the likelihood of trespassers. However, the risk of injury from swimming in deep water is obvious, and the council has provided clear warnings and a fence. The court would consider whether further precautions are reasonable. If the risk is obvious and the council has taken reasonable steps, it may not be liable.

Warnings and discouragement

Section 1(5) provides that the occupier may discharge the duty by taking reasonable steps to give warning of the danger or to discourage trespassers from incurring the risk. The adequacy of the warning depends on the circumstances, including the age and understanding of likely trespassers.

Worked Example 1.2

A factory owner installs an electric wire along the top of a high wall to prevent break-ins. There are no warning signs. A trespasser is injured after touching the wire.

Answer: The occupier may be liable because, although the danger was intended to deter trespassers, the lack of warning signs means reasonable steps were not taken to alert trespassers to the risk. The court would consider whether it was reasonable to expect the occupier to provide a warning.

Defences

The main defences available to occupiers under the Act are:

• Volenti (consent): If the trespasser willingly accepts the risk, the occupier is not liable (section 1(6)).
• Contributory negligence: If the trespasser’s own carelessness contributed to the injury, damages may be reduced.
• Warnings: If reasonable warnings are given, the duty may be discharged.
• Exclusion of liability: The Act does not expressly allow occupiers to exclude liability for personal injury or death to trespassers, and such exclusions are unlikely to be effective.

Key Term: volenti non fit injuria
A complete defence where the claimant has willingly accepted the risk of injury.

Worked Example 1.3

A teenager climbs a hospital fire escape to access the roof, despite warning signs and fencing. The teenager falls and is injured.

Answer: The hospital is likely to have taken reasonable steps to warn and discourage trespassers. The risk of falling is obvious. The court may find that the hospital is not liable, especially if the trespasser was aware of the risk and chose to proceed.

Exam Warning

For SQE1, be careful to distinguish between the duty owed to visitors under the Occupiers’ Liability Act 1957 and the more limited duty owed to trespassers under the 1984 Act. Remember that property damage is not covered by the 1984 Act.

Revision Tip

When answering MCQs, always check whether the claimant is a visitor or a trespasser. The statutory regime and the scope of the duty are different.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The Occupiers’ Liability Act 1984 imposes a statutory duty of care on occupiers towards trespassers only if three statutory conditions are satisfied.
• The duty under the Act covers personal injury (not property damage) caused by dangers on the premises.
• The standard of care is to take reasonable steps to prevent injury, considering all the circumstances.
• Reasonable warnings or steps to discourage trespassers may discharge the duty.
• Main defences include consent (volenti), contributory negligence, and adequate warnings.
• The duty owed to trespassers is narrower than that owed to lawful visitors under the Occupiers’ Liability Act 1957.

Key Terms and Concepts

• trespasser
• occupier
• statutory duty (Occupiers’ Liability Act 1984)
• danger (under the Act)
• reasonable care (under the Act)
• volenti non fit injuria