The Occupiers' Liability Act 1984
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The Occupiers' Liability Act 1984 (OLA 1984) covers situations where a person enters land or property without permission (a trespasser). The Occupiers’ Liability Act 1984 provides occupiers with a limited duty of care to non-visitors (trespassers). The 1984 Act recognises that occupiers may still owe a duty of care to those who enter their premises without permission. This duty is far more restrictive than that under the 1957 Act, only personal injury and death can be claimed, property damage cannot be claimed. This law is based upon the common humanity principle, this enforces the idea that even trespassers are owed a basic level of care by occupiers, even though they don’t have permission to be there, simply because we owe each other a minimum standard of human decency.
British Railways Board v Herrington (1972)Before the Act was introduced, this landmark case laid the groundwork for occupiers’ liability toward trespassers. A six year old boy was electrocuted after entering onto a railway line through a broken fence. The House of Lords (now Supreme Court) held that occupiers owed a duty of common humanity to trespassers, especially children, if they were aware of regular trespassing and dangers present.
We will now explore the key legal issues and test relating to liability under The Occupiers’ Liability Act 1984.
Key Terms: Occupier & Premises
Occupier: there is no strict definition of occupier in the OLA 1957 or OLA 1984. Under both Acts it has been decided that an occupier is anyone with sufficient control over the premises, and that control doesn’t need to be exclusive. Multiple individuals can share responsibility for the premises, meaning that there can be multiple occupiers.
Wheat v Lacon (1966): In this case, a guest in a pub fell down a staircase because the handrail was poorly maintained. The court decided that both the pub owner and manager were joint occupiers as they shared control of the premises.
Premises: the term premises is broadly defined in Section 1(3) of OLA 1957 and it includes fixed and movable structures such as buildings, vehicles, vessels, and aircraft.
Section 1(1) of OLA 1984: The Duty of Care
Under Section 1(1) of the Occupiers Liability Act 1984 an occupier owes a duty of care to people other than lawful visitors for injury on the premises by reason of any danger due to the state of the premises.
Section 1(3) of OLA 1984: The Three-Part Test
An occupier owes a duty to trespassers if:
They are aware of the danger or have reasonable grounds to believe it exists;
They know or have reasonable grounds to believe that someone (including a trespasser) may come into the vicinity of the danger;
The risk is one against which the occupier may reasonably be expected to offer some protection.
We will now explore this three part test in more detail.
1. The occupier is aware of the danger or has reasonable grounds to believe it exists
This means that the occupier knows, or ought to know, about a particular hazard or risk upon the premises. It is not enough for a danger to exist; the occupier must have knowledge of it.
Rhind v Astbury Water Park (2004)The claimant ignored warning signs and jumped into a lake, hitting submerged fibreglass. The court held that the occupier did not owe a duty, because they did not know (and had no reason to suspect) the object was there.
2. The occupier knows or has reasonable grounds to believe that someone is in the vicinity of the danger, or may come into it
Here, the occupier must be aware (or should reasonably foresee) that a person might trespass into the area where the danger is present. It is about foreseeability of presence.
Donoghue v Folkestone Properties (2003)The claimant dived into a harbour at night in winter and was injured. The court found that the occupier could not reasonably have expected someone to be in the vicinity of the danger at that time of year and day. The duty is context specific, what is foreseeable during summer daylight may not be foreseeable during winter nights.
3. The risk is one against which the occupier may reasonably be expected to offer some protection
This condition requires a practical judgment: Would a reasonable occupier be expected to take action to protect against this specific danger? This depends on factors like the cost of precautions, nature of the danger, and likelihood of injury.
Tomlinson v Congleton Borough Council (2003)A young man ignored “No Swimming” signs and suffered serious injury diving into a lake. The House of Lords held that the risk arose from his own actions, not the state of the premises. The council had already taken reasonable steps (e.g. signage), so no further protection was expected.
The law does not require occupiers to protect against obvious dangers or foolish behaviour.
Section 1(4) of OLA 1984:
Section 1(4) of the Occupiers Liability Act 1984 states that the occupier is to take such care as is reasonable in the circumstances to see that the trespasser is not injured by reason of that danger.
This means that under Section 1(4) of the Occupiers’ Liability Act 1984, an occupier does not have to completely guarantee a trespasser’s safety, instead, they must take reasonable care to prevent injury from any known danger on their land.
The occupier only needs to take reasonable care, meaning that they must act sensibly to reduce obvious risks, but they don’t have to go to extreme lengths to protect trespassers. If they have taken reasonable steps (like putting up warning signs or fences), they will usually not be liable if someone is still injured.
Children as Trespassers:
The 1984 Act does not offer the same heightened protection to children as the 1957 Act. However, if the occupier knows or should know that children are likely to trespass, they may need to take steps to safeguard against dangers, especially where allurements exist.
Keown v Coventry Healthcare NHS Trust (2006)An 11 year old boy climbed the underside of a fire escape and fell. The Court of Appeal held the premises were not dangerous, the danger arose from the child’s misuse of the structure. Even with children, the duty only arises if the premises themselves are dangerous, not merely misused.
Warnings and Risk Acceptance:
There are certain circumstance which can result in no liability for the occupier. Occupiers may discharge their duty and be not liable, through clear warnings, or if the trespasser willingly accepts the risk.
Effective warnings (e.g. fencing, signage) can limit liability.
If the danger is obvious, and the claimant acted recklessly, the volenti non fit injuria principle may apply.
Under Section 1(5) of OLA 1984 an occupier will be discharged of their duty of care to the trespasser (e.g. they will not owe a duty of care to a trespasser) if they have warned them against the risk of injury. This means that the occupier has taken such steps that are reasonable in all the circumstances to give the trespasser a warning of the danger concerned or discouraged them from taking the risk.
Under Section 1(6) of OLA 1984 the occupier will not owe a duty of care to the trespasser if the trespasser has consented to the risk of injury, here it can be established that the trespasser will accept any risk that they knew about when entering the land.
Ratcliff v McConnell (1999)A student was injured after diving into a shallow part of a closed swimming pool at night. The court held that the occupier was not liable because the danger was obvious and the claimant had willingly accepted the risk by entering despite clear warnings.
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