## Introduction

The Occupiers' Liability Act 1984 sets out when an occupier owes a duty of care to people who are not lawful visitors, such as trespassers. It sits alongside the Occupiers' Liability Act 1957 (which covers visitors) and creates a narrower, conditional duty. The focus is on dangers due to the state of the premises or to things done or not done on the premises.

The duty under the 1984 Act only arises if specific conditions are met and is limited to taking reasonable steps to avoid personal injury. It does not extend to damage to property. Courts will consider factors such as the occupier’s knowledge of the risk, the likelihood of trespass, the obviousness of the danger, the practicality of precautions, and whether the claimant willingly accepted the risk. Cases involving children often require closer thought, but the test remains one of reasonableness in all the circumstances.

## What You'll Learn

- When the duty to trespassers arises under section 1(3)
- What counts as a “danger” and whether it must stem from the state of the premises or an activity
- The scope of the duty under section 1(4) and how courts assess “reasonable” steps
- How warnings and discouragement work under section 1(5)
- How consent to risk (volenti) and contributory negligence can defeat or reduce claims
- How the 1984 Act differs from the 1957 Act (visitors) and why only personal injury is covered
- Key cases including Herrington, Tomlinson, Donoghue v Folkestone Properties, Keown, and Ratcliff
- Practical measures occupiers can take to manage foreseeable risks

## Core Concepts

### When the duty arises (section 1(3))

The occupier’s duty to a non-visitor arises only if all three of these conditions 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 someone is or may come into the vicinity of the danger (including trespassers).
3. The risk is one against which the occupier may reasonably be expected to offer some protection.

Points to note:

- “Reasonable grounds to believe” can be met by patterns of trespass, previous incidents, or the nature and location of the premises (e.g., unfenced water near a popular area).
- The Act applies to dangers due to the state of the premises and to things done or omitted to be done on them.
- Timing matters: whether trespass is likely can change with season, time of day, or special events.

### What counts as a “danger” and what the Act covers

- A “danger” usually means a hazard arising from the condition of the premises (e.g., a concealed drop, defective structures, disused machinery) or from activities carried out there (e.g., construction works).
- Not every risk is a “danger” for the purposes of the Act. Risks arising purely from the claimant’s choice to do something obviously dangerous may fall outside the duty.
- The 1984 Act covers death and personal injury only. There is no duty under the Act regarding loss of or damage to property.

### Scope and content of the duty (section 1(4))

If the duty arises, the occupier must take such care as is reasonable in all the circumstances to see that the person does not suffer injury by reason of the relevant danger. This is not a duty to make premises risk-free.

Courts weigh factors such as:

- How serious the potential harm is
- How likely someone is to encounter the danger
- The cost and practicality of precautions (e.g., fencing, locking, signage, patrols)
- The obviousness of the risk and whether the claimant was engaged in a risky activity by choice
- The age, characteristics and likely appreciation of risk by those expected to trespass (e.g., children versus adults)
- The nature of the location (e.g., public park, construction site, disused land)

There is no general duty to prevent people from taking obvious risks they choose to run. This is clear from decisions like Tomlinson.

### Warnings and discouragement (section 1(5))

The duty can, in an appropriate case, be discharged by reasonable steps to:

- Warn of the danger; or
- Discourage people from incurring the risk (e.g., fencing, locked gates)

Effective warnings are:

- Clear, visible and placed where they will be seen before the danger
- Specific about the hazard (e.g., “Danger: Deep Water – No Swimming” rather than vague statements)
- Appropriate to the audience (e.g., pictograms for children or non-English speakers)
- Backed up, if needed, by physical measures where access is foreseeable

### Consent to risk and contributory negligence (section 1(6) and LR(CN)A 1945)

- Section 1(6) provides that no duty is owed in respect of risks willingly accepted by the claimant (volenti). The acceptance must be free and informed. Clear warnings that are ignored can support this defence.
- Even if the occupier is partly at fault, damages can be reduced for contributory negligence under the Law Reform (Contributory Negligence) Act 1945 where the claimant’s own conduct contributed to the harm.

### Children and foreseeability

- The same three-limb test applies to children, but what is “reasonable” can differ because children may not appreciate certain risks. Known “shortcuts”, gaps in fencing near schools, or attractive features may call for proportionate precautions.
- Courts will still ask whether the injury was due to a danger of the premises, or due to the child’s misuse of something that was not inherently dangerous (see Keown).

### Relationship with the 1957 Act and exclusion notices

- The 1957 Act governs the duty to visitors and imposes a broader duty to make visitors reasonably safe for permitted purposes.
- The 1984 Act is narrower: it only arises when the section 1(3) conditions are met and only for personal injury.
- The 1984 Act does not contain a general power to exclude liability. In practice, “Do not enter” or “No swimming” notices act as warnings/discouragement under section 1(5), rather than exclusions. For business occupiers, attempts to exclude liability for death or personal injury caused by negligence will be restricted by the Unfair Contract Terms Act 1977.

## Key Examples or Case Studies

### British Railways Board v Herrington [1972] AC 877

- Facts: A child trespassed onto a railway line through damaged fencing and was injured.
- Held: The House of Lords recognised a duty of “common humanity” to trespassers in some circumstances (pre-1984 Act), influencing the later statutory test.
- Lesson: If you know of a danger and that people (especially children) may trespass, reasonable steps such as maintaining fencing may be expected.

### Tomlinson v Congleton Borough Council [2003] UKHL 47

- Facts: Despite “No swimming” signs, an adult dived into a shallow lake in a country park and suffered serious injury.
- Held: No liability. The real risk arose from the claimant’s actions, not the state of the premises. There is no duty to protect against obvious risks freely chosen by adults.
- Lesson: Clear warnings about obvious natural risks can be enough; the law does not require removing all risks from natural features.

### Donoghue v Folkestone Properties [2003] 1 WLR 1637

- Facts: A man dived into a harbour at night in mid-winter and was injured.
- Held: No duty. It was not reasonably foreseeable that someone would be in the vicinity of the danger at that time and season.
- Lesson: Foreseeability can be time and season-specific; an occupier is not expected to guard against improbable trespass.

### Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39

- Facts: An 11-year-old climbed a hospital fire escape and fell.
- Held: No liability. The fire escape was not dangerous in itself; the risk stemmed from the claimant’s misuse.
- Lesson: If the danger comes from how the claimant chose to use something rather than the state of the premises, the duty may not be engaged.

### Ratcliff v McConnell [1999] 1 WLR 670

- Facts: A student trespassed into a closed swimming pool at night and dived into shallow water.
- Held: No liability. The risk was obvious, warnings were present, and the claimant willingly accepted the risk.
- Lesson: Obvious risks combined with clear warnings and restricted access strongly support a defence.

### Revill v Newbery [1996] QB 567

- Facts: A burglar was shot by an occupier through a shed door.
- Held: Claim succeeded in negligence with damages reduced for contributory fault. The injury was caused by the occupier’s deliberate act rather than the state of the premises.
- Lesson: Separate from the 1984 Act, occupiers can be liable in negligence for activities carried out on the premises.

## Practical Applications

For occupiers and property managers:

- Map known hazards and “hotspots” for trespass (shortcuts, unfenced boundaries, water, derelict areas).
- Record a simple risk assessment for each material hazard: what the risk is, who might trespass, when they might do so, and what is reasonable to do about it.
- Prioritise practical measures:
  - Maintain fences, gates and locks where access is predictable.
  - Install clear, specific warning signs at entry points and near hazards.
  - Use pictograms where language barriers are likely.
  - Remove obvious temptations where feasible (e.g., secure ladders, lock plant rooms).
  - For water features, consider depth markers, lifesaving equipment, and “No swimming” signs where appropriate.

- Review seasonally. Summer brings swimmers; school holidays can increase youth trespass.
- Keep brief records of inspections, repairs, and signage checks. Consistent, low-burden routines go a long way.
- Train staff and contractors to report damage (e.g., broken fencing) promptly and to challenge trespass safely and lawfully.
- For construction and maintenance, manage temporary risks with barriers, lighting, and warnings. Remove or secure after work.
- Liaise with insurers on sensible, proportionate precautions.
- In claims handling:
  - Apply the section 1(3) conditions first.
  - Identify whether the risk came from the premises or the claimant’s actions.
  - Check for warnings, physical measures, and any evidence of volenti or contributory negligence.

## Summary Checklist

- Confirm the claimant was a non-visitor (trespasser or similar).
- Apply the three-limb test in section 1(3).
- Check the risk was due to the state of the premises or to things done/omitted there.
- Remember: the duty is limited to personal injury and death.
- Assess what was reasonable under section 1(4) in the actual circumstances.
- Consider obvious risks and adult risk-taking (Tomlinson; Ratcliff).
- Review time-of-day/season factors (Donoghue v Folkestone Properties).
- For children, weigh their ability to appreciate the risk (Keown).
- Use clear warnings and discourage access where appropriate (section 1(5)).
- Consider consent to risk and contributory negligence (section 1(6); LR(CN)A 1945).
- Distinguish from the broader visitor duty under the 1957 Act.
- Keep simple records of hazards, inspections and remedial steps.

## Quick Reference

| Concept                         | Authority                    | Key takeaway                                                         |
| ------------------------------- | ---------------------------- | -------------------------------------------------------------------- |
| When duty arises                | OLA 1984 s1(3)               | Three conditions: knowledge of danger, presence, protection expected |
| Content of duty                 | OLA 1984 s1(4)               | Reasonable steps only; not a duty to make premises risk-free         |
| Warnings/Discouragement         | OLA 1984 s1(5)               | Clear signs and barriers can discharge the duty                      |
| Consent to risk                 | OLA 1984 s1(6)               | Voluntary acceptance of an obvious risk defeats duty                 |
| Injury only                     | OLA 1984 s1(8)               | No duty for property damage under the 1984 Act                       |
| Obvious risks in natural areas  | Tomlinson [2003]             | No duty to protect adults from obvious risks they choose to take     |
| Children misusing safe features | Keown [2006]                 | No liability if misuse creates the danger                            |
| Season/time foreseeability      | Donoghue v Folkestone [2003] | Trespass may be unlikely at certain times or seasons                 |
