Occupiers' liability - Occupiers' Liability Act 1984 (non-vi...

Learning Outcomes

This article explains occupiers’ liability under the Occupiers’ Liability Act 1984 as it applies to non-visitors (trespassers), including:

• When and how a duty of care is owed to trespassers under the Act, with emphasis on identifying “non-visitors” in SQE1 problem questions
• The three statutory conditions in section 1(3) that trigger the duty, and how courts interpret “awareness” of the danger and of trespassers being in the vicinity
• The standard of care required under section 1(4), including factors used to assess reasonableness, such as obvious risks, the cost and practicality of precautions, and the presence of children
• The distinction between dangers due to the state of the premises and risks arising purely from activities on the land, and the consequences of that distinction for exam analysis
• The limited scope of the duty to personal injury (including death) and the exclusion of claims for damage to a trespasser’s property
• The role of warnings and steps to discourage entry under section 1(5), with guidance on when these measures will discharge or limit the statutory duty
• The main defences available to occupiers, including volenti, contributory negligence, and arguments based on obvious risks and voluntary risk-taking
• Leading case law, especially Tomlinson v Congleton BC, Keown v Coventry Healthcare NHS Trust and Ratcliff v McConnell, and how to apply their principles to multiple-choice questions and short problem 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, with a focus on the following syllabus points:

• 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
• the distinction between danger due to the state of the premises and risks arising from activities on the premises
• categories of “non-visitors” covered (e.g., trespassers, users of private rights of way, access land under countryside legislation) and the limits of protection
• how courts assess “awareness” of the danger and of trespassers being in the vicinity
• the relevance of obvious risks, cost and practicality of precautions, and likely presence of children
• the role of warnings and steps to discourage entry (section 1(5))
• the interface between the 1984 Act, contributory negligence, volenti, and the Compensation Act 2006

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.

The 1984 Act was introduced to replace the very limited common law duty formerly owed to trespassers. It imposes a carefully confined statutory duty that arises only in defined circumstances and applies to injuries resulting from dangers due to the state of the premises (or things done or omitted to be done on them). Claims about risky activities carried out on the land (for example, an occupier’s negligent act of shooting at intruders) fall outside the Act and must be considered, if at all, under general negligence principles.

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.

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.

For the duty to arise, the claimant must be a person “other than a visitor.” This principally means trespassers, but the Act also applies to people exercising private rights of way and those entering land under certain access arrangements (for example, under the National Parks and Access to the Countryside Act 1949 or the Countryside and Rights of Way Act 2000)—subject to limited duties and exclusions. Users of public highways are generally outside the occupiers’ liability regime and instead may have protection under highways legislation.

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.

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.

Each condition is fact-sensitive. For condition (1), actual knowledge of the danger or knowledge of facts that would lead a reasonable occupier to recognise the danger is required. If the danger is unknown and there are no reasonable grounds to suspect it, no duty arises. For condition (2), the occupier must know or have reasonable grounds to believe trespassers are or may be near the danger. Occasional trespass elsewhere on the land may not suffice; the focus is on trespassers being in the vicinity of the particular danger. For condition (3), the court considers whether, in all the circumstances—such as the obviousness of the risk, the seriousness of potential injury, the likelihood of trespass, and the cost and practicality of precautions—it is reasonable to expect the occupier to take steps to protect against that risk.

Leading cases illustrate how the conditions operate:

• If the occupier is unaware of a hidden danger and has no reason to suspect it (for example, a submerged fibreglass container in a lake), condition (1) fails and no duty arises.
• If trespassers are known to be present in summer but not in winter, a winter accident may fail condition (2) because the occupier had no grounds to believe trespassers would be in the vicinity at that time.
• Where the risk is obvious and severe (such as shallow water posing a headfirst entry risk), the court may find it unreasonable to expect the occupier to offer protection beyond warnings and reasonable discouragement, so condition (3) fails.

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. Nor does it apply to injuries caused by activities carried out by the occupier rather than by the state of the premises. An occupier who injures a trespasser by a negligent activity may still be liable under ordinary negligence principles, but not under the 1984 Act.

The 1984 Act applies to dangers “due to the state of the premises or to things done or omitted to be done on them.” Courts have emphasised that the focus is on the condition of the premises. If the premises are safe when used properly and the injury arises from the claimant’s dangerous misuse (for example, climbing a fire escape as a play structure), the injury is not “by reason of the danger” from the state of the premises and the Act does not apply.

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 (including seasonal or time-of-day patterns)
• the age and vulnerability of potential trespassers (e.g., children)
• the cost and practicality of precautions (e.g., fencing, locking, patrols)
• the obviousness of the risk to a reasonable person
• the character of the premises and context (e.g., recreational lake vs locked private facility)
• the potential effect of imposing precautions on desirable activities (courts may consider section 1 of the Compensation Act 2006)

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.

In assessing breach, courts regularly stress that occupiers are not insurers of safety. Obvious risks, voluntary risk-taking, and the impracticality or disproportionate cost of measures to prevent trespass can justify limited precautions. Conversely, where children are foreseeably attracted to a feature and the risk is not obvious to them, more robust steps (such as secure fencing or barriers) may be reasonable.

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. This approach is consistent with decisions emphasising obvious risks at natural or ornamental water features.

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. For adults, a clear warning and reasonable discouragement (such as signage and physical barriers) may suffice where the danger is obvious. For children, warnings may need to be supplemented by physical measures that prevent access to the danger.

Reasonable steps will vary. Examples include prominent signage at likely entry points, fencing or locked gates, and measures that deter access at high-risk times (e.g., night-time locking of facilities). Courts also recognise that occupiers may plan to implement further measures but be constrained by practicality or legitimate resource considerations; this does not necessarily mean liability if reasonable steps were already in place.

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. Absent warnings, installing a dangerous deterrent may not satisfy section 1(5).

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)). Courts look for clear evidence that the claimant knew the precise nature of the risk and voluntarily accepted it (e.g., climbing into a locked, signed swimming pool and entering headfirst into shallow water at night).
• Contributory negligence: If the trespasser’s own carelessness contributed to the injury, damages may be reduced. This often applies where claimants disregard warnings or engage in obviously dangerous behaviour.
• Warnings: If reasonable warnings or discouragement measures are given, the duty may be discharged under section 1(5).
• Exclusion of liability: The 1984 Act is silent on exclusion. Statutory controls for exclusion (UCTA 1977 and the Consumer Rights Act 2015) generally do not apply to trespassers. In practice, courts focus on whether warnings/discouragement meet section 1(5). Any attempt to exclude liability for personal injury to trespassers is unlikely to assist where the statutory duty arises and reasonable steps have not been taken.

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. Where injury results from dangerous misuse rather than the dangerous state of the premises, the 1984 Act may not apply, and any claim is likely to fail.

Worked Example 1.4

A local authority manages a country park with a lake. Signs say “No Swimming or Headfirst Entry: Shallow Water.” The authority knows that some visitors ignore the signs and has considered, but not yet implemented, additional planting to deter access. An adult trespasser dives and suffers severe spinal injury.

Answer:
A duty is unlikely to arise. The risk of entering shallow water headfirst is obvious; the injury arises from what the trespasser chose to do, not from a dangerous state of the premises. Given clear warnings and reasonable discouragement, it would not be reasonable to expect further protection. Courts have repeatedly declined to impose liability in such circumstances.

Worked Example 1.5

In mid-winter a person climbs over a harbour wall and dives off a slipway into dark water, suffering injury. The occupier knew trespassers sometimes swam in summer and had put up signs then, but had no knowledge of winter trespassing.

Answer:
Condition (2) is unlikely to be satisfied: the occupier did not know, and did not have reasonable grounds to believe, that trespassers would be in the vicinity of the danger in winter. Without knowledge of trespassers being near the danger at the relevant time, no duty arises.

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 and does not extend to injuries caused by activities.
• The “danger” must arise from the state of the premises; misuse of otherwise safe premises will usually fall outside the Act.
• The standard of care is to take reasonable steps to prevent injury, considering all the circumstances (obviousness of risk, likelihood of trespass, age of trespassers, cost/practicality of precautions).
• Reasonable warnings or steps to discourage trespassers may discharge the duty under section 1(5).
• Main defences include consent (volenti), contributory negligence, and adequate warnings; attempts to exclude liability for personal injury to trespassers are generally unlikely to assist where a duty arises.
• Courts may consider the impact of imposing precautions on desirable activities under the Compensation Act 2006.
• 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