Occupiers' Liability Act 1984: Duty to Non-Visitors

Introduction

The Occupiers' Liability Act 1984 (OLA 1984) sets out when occupiers owe a duty of care to people who are not lawful visitors, such as trespassers and some recreational users. It replaced the patchy common law position with a clear, conditional duty focused on personal injury caused by dangers on the premises. The Act aims to strike a fair balance between property owners’ control of their land and the safety of those who may still come onto it.

Unlike the Occupiers’ Liability Act 1957 (which deals with lawful visitors), the 1984 Act applies only in defined situations and does not extend to property damage claims. The duty arises only if strict threshold conditions are met and, even then, the standard is reasonableness, not a guarantee of safety.

What You'll Learn

• When a duty to non-visitors arises under s 1(3) OLA 1984
• What “reasonable” care under s 1(4) looks like in practice
• How warnings and deterrents can discharge the duty (s 1(5))
• When risks willingly accepted defeat a claim (s 1(6) volenti)
• Key cases on obvious risks, children, timing, and occupiers’ knowledge
• Practical steps for occupiers to reduce exposure to claims

Core Concepts

Who Is an Occupier and What Counts as Premises

• Occupier: the person with sufficient control over the premises (there can be more than one occupier).
• Premises: broadly includes land, buildings, fixed or moveable structures, and vessels.
• Persons “other than visitors”: typically trespassers, some users of public rights of way, and certain recreational users who do not qualify as visitors under the 1957 Act.
• No duty for property damage under the 1984 Act (s 1(8)); the duty concerns personal injury only.

When the Duty Arises: s 1(3) OLA 1984

An occupier owes a duty to non-visitors only if all three conditions in s 1(3) are satisfied:

1. Danger: The occupier is aware of the danger or has reasonable grounds to believe it exists (s 1(3)(a)).
2. Presence: The occupier knows or has reasonable grounds to believe that the non-visitor is in, or may come into, the vicinity of the danger (s 1(3)(b)).
3. Reasonableness: The risk is one against which, in all the circumstances, it is reasonable to expect the occupier to offer some protection (s 1(3)(c)).

Key points from case law:

• Swain v Natui Ram Puri [1996] P.I.Q.R. P422: “Reasonable grounds to believe” requires more than a bare possibility of trespass; evidence such as previous incidents can be important.
• Donoghue v Folkestone Properties [2003] 2 WLR 1138: Time of day and time of year matter; what is reasonable in midsummer may not be reasonable in midwinter.

The Standard of Care: s 1(4) OLA 1984

If s 1(3) is satisfied, the duty is to take such care as is reasonable in all the circumstances to see that the non-visitor is not injured by the danger. This is not an absolute duty. Factors often weighed include:

• How obvious the danger is
• Seriousness of the potential harm
• Likelihood of people being in the danger zone
• Cost and practicality of precautions
• The nature of the claimant (adult/child)
• Whether the risk flows from the claimant’s activity rather than the state of the premises

The courts will not require owners to remove all risks, especially where a risk is plain to a reasonable adult.

Warnings and Discouragement: s 1(5) OLA 1984

Occupiers can discharge the duty by taking reasonable steps to warn of the danger or to discourage people from taking the risk. What is “reasonable” depends on context:

• Clear, visible, and specific signs can be enough for adults where the danger is obvious or cannot readily be made safe.
• Physical measures such as fencing, barriers, or locks may be expected where signage alone is unlikely to be effective.
• Westwood v Post Office [1973] 1 QB 591: A clear warning can suffice for an adult trespasser, depending on the circumstances.

Note: For children, simple signs may be inadequate. Consider how a child might behave when assessing what steps are sensible.

Risks Willingly Accepted: s 1(6) OLA 1984 (Volenti)

No duty is owed in respect of risks willingly accepted by the non-visitor. The bar is high:

• The claimant must have full knowledge of the risk and accept it voluntarily.
• In practice, this defence rarely succeeds, but it can apply where an adult knowingly courts an obvious danger.

Obvious Risks and Activity vs State of Premises

• Tomlinson v Congleton BC [2004] 1 AC 46: No duty to protect against an obvious risk arising from the claimant’s own actions (adult chose to enter shallow water). The law does not require removal of all natural or social pleasures to eliminate every hazard.
• Keown v Coventry NHS Trust [2006] 1 WLR 953: Where the danger comes from the claimant’s risky activity (child climbing a fire escape) rather than the premises’ condition, there may be no liability.
• Young v Kent County Council [2005] EWHC 1342: Liability found for a brittle skylight on a school roof; the danger lay in the state of the premises, and simple precautions could have prevented injury.

Key Examples or Case Studies

• Herrington v British Rail Board [1972] AC 877

  • Background: Before the 1984 Act, the House of Lords recognised a duty of “common humanity” towards trespassers in limited circumstances.
  • Lesson: Set the scene for a statutory duty to non-visitors.

• Swain v Natui Ram Puri [1996] P.I.Q.R. P422

  • Facts: Child trespasser injured after accessing a factory roof.
  • Lesson: “Reasonable grounds to believe” presence requires more than a theoretical chance of trespass. Evidence of prior trespass or other indicators may tip the balance.

• Tomlinson v Congleton BC [2004] 1 AC 46

  • Facts: Adult injured after entering shallow water at a lakeside country park.
  • Lesson: No duty to protect against an obvious risk created by the claimant’s chosen activity; reasonableness and personal responsibility are key.

• Donoghue v Folkestone Properties [2003] 2 WLR 1138

  • Facts: Claimant entered water at night in winter and was injured.
  • Lesson: The time of day and time of year are part of the “all the circumstances” test; what is reasonable varies with context.

• Keown v Coventry NHS Trust [2006] 1 WLR 953

  • Facts: Child fell while climbing a hospital fire escape.
  • Lesson: If the hazard stems from the claimant’s risky behaviour rather than the premises’ condition, the claim may fail, even for a child.

• Young v Kent County Council [2005] EWHC 1342

  • Facts: Child fell through a brittle skylight on a school roof.
  • Lesson: Where the danger is in the premises themselves and precautions are straightforward, liability is likely.

• Revill v Newbery [1996] 2 WLR 239

  • Facts: Occupier shot a trespasser during a night-time intrusion.
  • Lesson: Trespassers are not outlaws; excessive force can lead to liability despite the claimant’s unlawful presence.

• Jolley v Sutton LBC [2000] 1 WLR 1082

  • Facts: Children injured while playing on an abandoned boat (decided under the 1957 Act).
  • Lesson: It is the kind of injury that must be foreseeable, not the precise sequence of events. The general approach on foreseeability informs duties under the 1984 Act as well.

Practical Applications

For occupiers (including landowners, local authorities, schools, hospitals, and businesses), the following steps are sensible:

• Identify dangers on the premises

  • Review water features, drop-offs, machinery, fragile roofs, derelict structures, and electrical risks.
  • Consider how children might be attracted to particular hazards.

• Assess likelihood of trespass

  • Look at previous incidents, missing or damaged fencing, desire lines, and proximity to schools, housing, or popular walking routes.
  • Note seasonal changes (e.g., summer swimming spots) and time factors (day/night).

• Decide on proportionate precautions

  • Warnings: Clear, visible, and specific signage in the right places.
  • Physical measures: Repair fences, secure gates, lock access points, add barriers around obvious hazards (e.g., fragile roofs, quarries, reservoirs).
  • Lighting/CCTV: Often helpful as a deterrent in high-risk locations (balanced against privacy and cost).
  • Remove or secure attractive nuisances: For example, abandoned vehicles or unstable structures.

• Record decisions and reviews

  • Keep a simple risk register with reasons for actions taken or not taken.
  • Note inspections, maintenance, and incidents; this evidence can be persuasive if a claim is brought.

• Tailor measures for children

  • Expect that children may ignore or misunderstand warnings.
  • Use physical barriers where a hazard is serious and foreseeable.

• Remember the limits of the duty

  • The 1984 Act focuses on personal injury caused by a danger on the premises.
  • There is no duty to make safe every obvious risk, especially where injury would stem from a person’s voluntary actions.

• Defences and related law

  • Volenti (s 1(6)): Rare but possible where an adult knowingly accepts a clear risk.
  • Unfair Contract Terms Act 1977: Liability for death or personal injury due to negligence cannot be excluded by contract terms where UCTA applies; for non-visitors, notices may operate as warnings rather than exclusions.
  • Defective Premises Act 1972: Separate duties may arise for defective dwellings causing personal injury.

Summary Checklist

• Confirm the person is a non-visitor (trespasser or similar)
• Apply all three s 1(3) questions:
  • Is there a danger the occupier knows about or should reasonably believe exists?
  • Are there reasonable grounds to believe non-visitors may be near that danger?
  • Is it reasonable to offer some protection?
• If a duty arises, apply s 1(4):
  • Take reasonable care in all the circumstances to prevent injury
• Consider s 1(5) steps:
  • Are warnings sufficient for adults?
  • Do you need barriers, locks, or other measures, especially where children are concerned?
• Keep records of inspections, incidents, and actions taken
• Factor in timing and seasonality (e.g., night/winter vs day/summer)
• Obvious risks and activity-based risks may reduce or negate liability
• Test any potential volenti argument cautiously; it seldom succeeds
• Remember: OLA 1984 does not cover property damage claims

Quick Reference