Liability in Respect of Trespassers: Occupiers’ Liability Act 1984 (AQA A-Level Law): Revision Notes
Liability in Respect of Trespassers: Occupiers' Liability Act 1984
Introduction to the Occupiers' Liability Act 1984
The Occupiers' Liability Act 1984 establishes the legal framework for when occupiers owe a duty of care to persons who are not lawful visitors on their premises. This Act is particularly important when dealing with claims involving trespassers and represents a more limited duty than that owed to lawful visitors under the 1957 Act.
The 1984 Act works alongside the Occupiers' Liability Act 1957, but applies to a different category of people. The 1957 Act covers lawful visitors, while the 1984 Act specifically addresses the occupier's duty to trespassers and other non-visitors. Understanding which Act applies is crucial for any liability analysis.
Historical development
The Act has its origins in the landmark case British Railways Board v Herrington (1972), which overruled the earlier decision in Addie v Dumbreck (1929). This development in the common law demonstrated how judicial precedent can evolve to reflect changing social attitudes towards the protection of trespassers, particularly children.
Who is covered by the Act?
The 1984 Act imposes liability on occupiers regarding persons other than lawful visitors. This specifically includes:
- Trespassers: persons on the occupier's land who have no permission or authority to be there
- Burglars: those entering premises with criminal intent
- Those who exceed their permission: individuals who had lawful authority to be on the premises but went beyond the scope of that permission
Criminal Activity Does Not Bar Claims
The case of Revill v Newbery (1996) illustrates a crucial principle: even those engaged in criminal activity can be owed a duty of care. The claimant was a burglar who was shot by the defendant. Despite being engaged in criminal activity, the defendant was still found liable, though damages were reduced due to the claimant's contributory negligence.
This demonstrates that the law balances protection of trespassers with recognition of their wrongdoing through the reduction of damages, rather than denying liability altogether.
Protected forms of damage
A crucial limitation of the Act is found in Section 1(8), which states that death and personal injury are the only protected forms of damage. This means that occupiers owe no duty under this Act in relation to damage to a trespasser's property.
No Protection for Property Damage
If a burglar's tools are damaged while breaking into premises, they cannot claim compensation under the 1984 Act. This limitation ensures that occupiers are not liable for damage to property used in criminal activities or other trespassing activities.
The duty of care under Section 1(3)
Unlike the automatic duty owed to lawful visitors under the 1957 Act, a duty to trespassers only arises when specific conditions are satisfied. The occupier must demonstrate awareness or reasonable grounds for awareness on multiple levels.
The three-part test
The Section 1(3) Three-Part Test
Section 1(3) establishes that an occupier owes a duty of care to a non-visitor only if all three of the following conditions are met:
a) Knowledge of the danger: The occupier is aware of a danger on the premises or has reasonable grounds to believe that such a danger exists.
b) Knowledge of the trespasser: The occupier knows or has reasonable grounds to believe the other person is in the vicinity of the danger, or may come into the vicinity of the danger.
c) Reasonableness of offering protection: The risk is one in which, in all the circumstances of the case, the occupier may reasonably be expected to offer the other some protection.
All three conditions must be satisfied for a duty to arise. If any one condition is not met, no duty exists.
Understanding the First Condition: Knowledge of the Danger
This does not require actual knowledge; constructive knowledge is sufficient. An occupier cannot simply turn a blind eye to obvious hazards. They must consider what a reasonable person in their position would know about potential dangers on their land.
Understanding the Second Condition: Knowledge of the Trespasser
This requirement recognises that occupiers should not be liable for dangers to trespassers they could not reasonably foresee. However, if trespassers regularly use a particular route or area, this knowledge may be established. For example, if an occupier knows that children frequently trespass to take a shortcut across their land, they may be deemed to have knowledge of potential trespassers in that area.
Understanding the Third Condition: Reasonableness of Protection
This is a balancing exercise. The courts will consider factors such as:
- The nature of the premises
- The age of the trespasser
- The obviousness of the danger
- The burden on the occupier of eliminating or reducing the risk
The more obvious the danger, or the greater the burden of protection, the less likely it is that the occupier will be expected to offer protection.
Worked Example: Donoghue v Folkestone Properties Ltd (2003)
Facts: The claimant was seriously injured after diving into Folkestone harbour on Boxing Day.
Analysis: The court had to consider whether all three conditions of Section 1(3) were satisfied:
- Knowledge of danger: ✓ The defendant knew diving could be dangerous
- Knowledge of trespasser: ✓ The defendant knew people used the area
- Reasonableness of protection: ✗ This was the critical issue
Outcome: The court held that while it might be reasonable to guard against such behaviour during the summer months when people regularly swim there, it was not reasonable to expect this level of protection in winter. Consequently, the defendant was not liable.
Key Point: This demonstrates how the third limb of Section 1(3) operates - the circumstances of the case determine whether protection should reasonably be offered.
Breach of the duty of care
Once it is established that a duty of care exists under Section 1(3), the next question is whether the occupier has breached that duty. This is assessed objectively.
The objective standard
The standard of care applied is objective, meaning it is judged against what a reasonable occupier would do in the same circumstances, not what this particular occupier thought was appropriate. If the occupier fails to meet this standard, it will amount to a breach.
Section 1(4) states that the duty is to take such care as is reasonable in all the circumstances of the case to see that the trespasser does not suffer injury on the premises by reason of the danger concerned.
Premises must be dangerous, not the activity
Critical Distinction: Premises vs Activity
An important principle is that liability only arises when the premises themselves are dangerous, not when the claimant chooses to engage in a dangerous activity on otherwise safe premises. This distinction is crucial in exam questions and frequently determines the outcome of cases.
The test: Ask yourself - was the danger caused by the state or condition of the premises, or by what the claimant chose to do on those premises?
Worked Example: Ratcliff v McConnell (1997)
Facts: The claimant, a college student, was seriously injured after diving into the college swimming pool late at night. The pool was locked and had warning signs displayed.
Analysis:
- Was there a duty? The three-part test was satisfied
- Was the duty breached? The court examined whether reasonable steps were taken
- Were the premises dangerous? This was the critical question
Outcome: The court held that the defendant had taken sufficient steps to discharge their duty through locks and warnings. The premises were not inherently dangerous; the claimant's chosen activity was dangerous. Therefore, the defendant was not liable.
Key Principle: The pool itself was not defective or unsafe - it was fit for purpose. The danger arose from the claimant's decision to dive into it in unsafe circumstances.
Worked Example: Keown v Coventry Healthcare NHS Trust (2006)
Facts: A child fell from a fire escape he had been climbing on the defendant's premises.
Analysis:
- Was the fire escape defective or unsafe? No
- Was the premises dangerous? No
- What created the danger? The child's decision to climb on it
Outcome: The court held that the premises themselves were not dangerous - the fire escape was not defective or unsafe. What made the situation dangerous was the child's decision to climb on it. The defendant was not liable because the danger arose from the claimant's activity, not from the state of the premises.
Key Principle: This reinforces that occupiers are protected from liability when people choose to engage in risky behaviour on their land, even if that behaviour results in serious injury, provided the premises themselves are safe.
Warnings and warning signs
An occupier can discharge their duty (meet the standard of a reasonable occupier) without eliminating the danger itself, provided they take appropriate steps to warn or discourage trespassers.
Section 1(5): Discharging the duty
Practical Ways to Discharge the Duty
Under Section 1(5), the duty may be discharged by giving a warning of the danger or by discouraging others from taking the risk. This provides a practical way for occupiers to fulfil their obligations without necessarily removing every potential hazard from their property.
The adequacy of warnings will depend on the circumstances. Factors include:
- The nature and severity of the danger
- The age and understanding of likely trespassers
- The prominence and clarity of warning signs
- Whether physical barriers supplement verbal or written warnings
Worked Example: Tomlinson v Congleton (2003)
Facts: The claimant was seriously injured after diving into a lake on the defendant's property.
Analysis:
- Was the lake itself dangerous? No - it was a natural body of water
- Did the state of the premises create danger? No
- What created the danger? The claimant's choice to dive into the lake
Outcome: The court held that the state of the premises was not inherently dangerous. The danger arose from what the claimant chose to do on those premises. The defendant was not liable.
Key Principle: This case reinforces that occupiers are not insurers of trespasser safety. They must protect against dangers arising from the premises themselves, but not against risks that people voluntarily undertake. The lake was not made dangerous by any defect or condition - it was the claimant's activity that created the risk.
Defences available under the Occupiers' Liability Act 1984
Even where a duty exists and has been breached, occupiers may rely on certain defences to avoid or reduce liability.
Volenti non fit injuria (Section 1(6))
Volenti non fit injuria means "to one who is willing, no harm is done." Section 1(6) states that the duty of care does not impose an obligation on occupiers in respect of risks willingly accepted by the trespasser.
Requirements for Volenti Defence
This defence succeeds when the trespasser has freely and voluntarily accepted the risk of injury. It must be shown that they had:
- Full knowledge of the nature and extent of the risk
- Voluntarily accepted it
In Ratcliff v McConnell (1997), the defence of volenti could be applied to the student who chose to dive into the locked pool late at night, knowing the risks involved.
However, the courts are cautious about applying this defence too readily, particularly where the claimant is a child or where there is a significant imbalance of knowledge between the parties.
Contributory negligence
Under the Law Reform (Contributory Negligence) Act 1945, damages may be reduced where the trespasser fails to take reasonable care for their own safety. Unlike volenti, which is a complete defence, contributory negligence leads to a proportionate reduction in damages.
How Contributory Negligence Works
The court will assess the extent to which the claimant's own negligence contributed to their injuries and reduce damages accordingly. The reduction can be anywhere from 1% to 100%, depending on the degree of fault.
Revill v Newbery (1996) demonstrates this defence in action. The defendant was liable for shooting the burglar claimant, but damages were significantly reduced to reflect the claimant's own contributory negligence in committing the burglary in the first place.
Exclusion of liability
Exclusion of liability is not expressly forbidden by the Act, suggesting it may be possible for occupiers to exclude or limit their liability to trespassers. However, this area remains somewhat uncertain, and any attempt to exclude liability must be reasonable and brought to the trespasser's attention (which is practically difficult given the nature of trespass).
Summary of key cases
Case Summary: Revill v Newbery (1996)
Facts: The claimant was a burglar who was shot by the defendant while attempting to break into a shed.
Legal Principle: Occupiers can owe a duty to trespassers even when they are engaged in criminal activity. However, contributory negligence was applied to significantly reduce damages due to the claimant's illegal conduct.
Significance: Demonstrates that criminal activity does not bar a claim, but will affect the quantum of damages through contributory negligence.
Case Summary: Donoghue v Folkestone Properties Ltd (2003)
Facts: The claimant suffered serious injuries diving into Folkestone harbour on Boxing Day.
Legal Principle: Whether an occupier may reasonably be expected to offer protection depends on the circumstances. While protection might be reasonable during summer, it was not required during winter. The third limb of Section 1(3) was not satisfied.
Significance: Illustrates how context and circumstances affect the reasonableness of offering protection.
Case Summary: Ratcliff v McConnell (1997)
Facts: A college student was seriously injured diving into a locked swimming pool late at night despite warning signs.
Legal Principle: Locks and warnings were sufficient to discharge the duty. The premises were not dangerous; the claimant's chosen activity was. The defence of volenti could also apply.
Significance: Shows how Section 1(5) works in practice - warnings and barriers can discharge the duty.
Case Summary: Keown v Coventry Healthcare NHS Trust (2006)
Facts: A child fell from a fire escape he had been climbing on the defendant's premises.
Legal Principle: The premises must themselves be dangerous, not merely the activity the claimant chooses to engage in. The fire escape was not defective; the danger arose from the child's decision to climb it.
Significance: Key authority for the premises vs activity distinction.
Case Summary: Tomlinson v Congleton (2003)
Facts: The claimant was seriously injured diving into a lake on the defendant's land.
Legal Principle: The state of the premises was not inherently dangerous. What the claimant chose to do on those premises created the danger. Occupiers are not liable for risks voluntarily undertaken by trespassers when the premises themselves are not dangerous.
Significance: Reinforces that occupiers are not insurers of safety and the importance of the premises vs activity distinction.
Exam guidance
Essential Exam Strategy for Occupiers' Liability Act 1984
When answering questions on the Occupiers' Liability Act 1984, ensure you:
Structure your answer systematically: Work through each element methodically:
- Establish who is a trespasser
- Apply Section 1(3)'s three-part test
- Consider Section 1(4) for breach
- Discuss warnings under Section 1(5)
- Address defences
Distinguish between the 1957 and 1984 Acts: Be clear about which Act applies:
- The 1957 Act covers lawful visitors
- The 1984 Act covers trespassers and those who exceed their permission
Apply the premises vs activity distinction: This is a common trap in exam questions. Always identify whether the danger arises from:
- The state of the premises (occupier may be liable)
- What the claimant chose to do (occupier likely not liable)
Address all elements: Do not lose marks by focusing only on whether a duty exists. You must also consider:
- Breach
- Causation
- Damage
- Defences
A complete answer addresses all these elements.
Use case law effectively: Apply case law to support your analysis. Do not simply list cases; explain how their principles apply to the scenario in question.
Consider defences: Even if you conclude liability exists, always consider whether volenti or contributory negligence might apply to reduce or eliminate damages.
Remember!
Key Points to Remember
-
The Occupiers' Liability Act 1984 protects trespassers from death and personal injury only - no duty exists for property damage (Section 1(8)).
-
A duty only arises under Section 1(3) when three conditions are met:
- The occupier must be aware of the danger
- Aware of the trespasser's presence (or likely presence)
- It must be reasonable to expect them to offer protection
-
The premises must be dangerous, not merely the activity the claimant chooses to engage in (Keown v Coventry Healthcare NHS Trust, Tomlinson v Congleton). This is a crucial distinction.
-
Occupiers can discharge their duty under Section 1(5) by giving warnings or discouraging risk-taking, without necessarily removing the danger.
-
Defences available:
- Volenti non fit injuria (complete defence under Section 1(6))
- Contributory negligence (proportionate reduction in damages)
-
The objective standard applies to breach - what would a reasonable occupier do in these circumstances?
-
Criminal activity does not bar a claim, but may lead to significant reduction in damages through contributory negligence (Revill v Newbery).