Liability in Respect of Trespassers (Occupiers’ Liability Act 1984) (OCR A-Level Law): Revision Notes
Liability in Respect of Trespassers (Occupiers' Liability Act 1984)
Overview of the Act
The Occupiers' Liability Act 1984 imposes a duty of care on occupiers towards persons other than lawful visitors. This includes individuals who enter premises without permission or authority, as well as those who exceed the scope of their original permission.
The Act applies to:
- Trespassers – individuals with no right to be on the land
- Burglars – persons entering with criminal intent
- Those exceeding permission – visitors who go beyond their authorised access
A key case illustrating this extended scope is Revill v Newbery (1996), where a burglar was able to claim under the Act, though damages were reduced due to contributory negligence.
Historical context
The 1984 Act emerged from the landmark decision in British Railways Board v Herrington (1972), which overruled the harsh precedent established in Addie v Dumbreck (1929). This judicial development recognised that occupiers should owe some duty of care even to trespassers, particularly in circumstances where serious injury or death might occur.
Definition of a trespasser
The Act does not provide an express definition of 'trespasser'. Instead, Section 1 refers to such individuals as 'persons other than his visitors'.
Trespassers can be understood as persons on the occupier's land who have no permission or authority to be there. This includes:
- Individuals who enter land without any form of consent
- Those who initially had permission but have exceeded its terms
- Persons engaging in criminal activity on the premises
The duty of care under Section 1(3)
An occupier owes a duty of care to a non-visitor only when three specific conditions are satisfied. All three conditions must be established before a duty arises.
The occupier must establish that:
Condition (a): Awareness of danger
The occupier is aware of a danger on the premises, or has reasonable grounds to believe that such a danger exists. This does not require actual knowledge – reasonable grounds for belief are sufficient.
Condition (b): Knowledge of presence
The occupier knows, or has reasonable grounds to believe, that the trespasser is in the vicinity of the danger, or may come into the vicinity of the danger. Again, this condition can be satisfied by reasonable belief rather than definite knowledge.
Condition (c): Reasonable expectation of protection
The risk is one which, considering all the circumstances of the case, the occupier may reasonably be expected to offer some protection against. This is a balancing exercise weighing the nature of the risk against what is reasonable to expect from the occupier.
The application of these three conditions was examined in Donoghue v Folkestone Properties Ltd (2003), where the claimant was seriously injured diving into Folkestone harbour on Boxing Day. The court held that while it might be reasonable to guard against such risks during summer months, there was no duty to do so in winter. The defendant was not liable.
Protected forms of damage: Section 1(8)
Section 1(8) significantly limits the scope of recoverable damage under the 1984 Act. Only death and personal injury are protected. This means:
- Occupiers owe no duty in relation to property damage suffered by trespassers
- Claims are restricted to physical harm to the person
- Economic losses are not recoverable
This contrasts with the broader protection offered to lawful visitors under the 1957 Act.
Breach of the duty of care
Once a duty of care is established under Section 1(3), the occupier must meet an objective standard of care. A breach occurs when this standard is not satisfied.
The standard: Section 1(4)
Section 1(4) defines the duty as requiring the occupier to take such care as is reasonable in all the circumstances to ensure that the trespasser does not suffer injury on the premises by reason of the danger concerned.
This is an objective test – what would a reasonable occupier do in similar circumstances? The court considers:
- The nature and degree of the danger
- The cost and practicability of preventative measures
- The likelihood of trespassers being present
- The age and understanding of potential trespassers
The case of Ratcliff v McConnell (1997) illustrates this principle. The claimant was seriously injured after diving into a college swimming pool late at night. The court found that locks and warning signs were sufficient to discharge the duty of care. The defendant was not liable as reasonable steps had been taken.
Dangerous premises vs dangerous activities
An important principle established under the 1984 Act is that the premises themselves must be dangerous, not merely the activity the claimant chooses to undertake.
Keown v Coventry Healthcare NHS Trust (2006) clarifies this distinction. A child fell from a fire escape he had been climbing. The court held that the fire escape itself was not dangerous – it was the child's chosen activity of climbing it that created the risk. The defendant was not liable.
Similarly, in Tomlinson v Congleton (2003), the claimant suffered serious injuries diving into a lake. The court determined that the state of the premises (the lake) was not inherently dangerous. The danger arose from what the claimant chose to do. The defendant was not liable.
This principle protects occupiers from liability when trespassers engage in risky behaviour on premises that are not inherently dangerous.
Warnings and warning signs
Discharging the duty: Section 1(5)
Section 1(5) provides that an occupier may discharge their duty (that is, reach the standard of a reasonable occupier) by:
- Giving a warning about the danger
- Discouraging others from taking the risk
This is less onerous than the requirement under the 1957 Act. Under the 1984 Act, there is no obligation for the warning to enable the trespasser to be reasonably safe. The occupier need only warn of or discourage the risk.
Tomlinson v Congleton (2003) demonstrates this principle. The defendant council had placed warning signs around a lake and attempted to discourage swimming. These measures were deemed sufficient to discharge any duty owed, even though the claimant still chose to dive into the water.
Defences
Several defences are available to occupiers facing claims under the 1984 Act:
Volenti non fit injuria (Section 1(6))
Section 1(6) incorporates the defence of volenti non fit injuria (voluntary assumption of risk). The common duty of care does not impose an obligation on occupiers in respect of risks willingly accepted by the trespasser.
To establish this defence, the occupier must show that the claimant:
- Had full knowledge of the nature and extent of the risk
- Voluntarily accepted that risk
In Ratcliff v McConnell (1997), the claimant was an adult student who deliberately chose to dive into a locked swimming pool late at night. The defence of volenti could have been applied, as he voluntarily accepted an obvious risk.
Contributory negligence
Damages may be reduced under the Law Reform (Contributory Negligence) Act 1945 where the trespasser fails to take reasonable care for their own safety. The court assesses the claimant's contribution to their own injuries and reduces damages proportionately.
Revill v Newbery (1996) illustrates this defence. The claimant was a burglar shot by the defendant occupier. While the defendant was found liable, the court applied contributory negligence to reflect the claimant's wrongful conduct, significantly reducing the damages awarded.
Exclusion of liability
Exclusion of liability is not expressly forbidden by the 1984 Act, suggesting it may be possible. However, this remains uncertain, and any attempt to exclude liability would likely face scrutiny from the courts, particularly given the limited protection already afforded to trespassers.
Key cases summarised
Revill v Newbery (1996)
Facts: The claimant was a burglar attempting to break into the defendant's shed. The defendant, an elderly man, discharged a shotgun through a hole in the door, seriously injuring the burglar.
Legal principle: An occupier owes a duty even to burglars under the 1984 Act. However, contributory negligence will be applied to reduce damages where the claimant's illegal conduct contributed to the injuries.
Donoghue v Folkestone Properties Ltd (2003)
Facts: The claimant was seriously injured when he dived into Folkestone harbour on Boxing Day.
Legal principle: Whether a duty is owed depends on the circumstances and timing. What might be reasonable to guard against in summer is not necessarily required in winter. The defendant was not liable.
Ratcliff v McConnell (1997)
Facts: An adult college student was seriously injured after diving into a college swimming pool late at night. The pool was locked and warning signs were displayed.
Legal principle: Locks and clear warnings are sufficient to discharge the duty of care under Section 1(4). The defendant was not liable. The defence of volenti could also apply where the claimant voluntarily accepted an obvious risk.
Keown v Coventry Healthcare NHS Trust (2006)
Facts: A young child fell from an external fire escape on the defendant's premises, which he had been climbing.
Legal principle: The premises must be dangerous in themselves, not merely the activity the claimant chooses to engage in. The fire escape was not inherently dangerous – the child's act of climbing it created the danger. The defendant was not liable.
Tomlinson v Congleton (2003)
Facts: The claimant was seriously injured when he dived into a lake at a country park and struck his head on the bottom.
Legal principle: The state of the premises was not inherently dangerous. The danger arose from what the claimant chose to do (diving into shallow water). Warning signs and measures to discourage swimming were sufficient to discharge any duty. The defendant was not liable.
Exam guidance
When answering problem questions on the 1984 Act:
Identify the parties: Determine who is the occupier and confirm the claimant is a trespasser (not a lawful visitor).
Apply the three-part test: Work systematically through Section 1(3) conditions (a), (b), and (c) to establish whether a duty is owed.
Consider the type of damage: Remember that only death and personal injury are protected under Section 1(8).
Assess breach: Apply Section 1(4) objectively – has the occupier taken reasonable care in the circumstances?
Distinguish premises from activities: Consider whether the premises themselves are dangerous, or whether the claimant's chosen activity created the risk (Keown principle).
Examine warnings: Have warnings been given or have measures been taken to discourage the risk under Section 1(5)?
Apply defences: Consider whether volenti non fit injuria or contributory negligence apply to the facts.
Use case law: Support your analysis with relevant authorities such as Ratcliff, Tomlinson, and Keown.
Structure clearly: Address duty, breach, damage, and defences in a logical sequence.
Key Points to Remember:
- The Occupiers' Liability Act 1984 protects trespassers and those exceeding their permission
- A duty is only owed when all three conditions in Section 1(3) are satisfied: (a) awareness of danger, (b) knowledge of presence, (c) reasonable expectation of protection
- Only death and personal injury are protected – no duty for property damage (Section 1(8))
- The premises must be dangerous, not the claimant's chosen activity (Keown v Coventry Healthcare)
- Occupiers can discharge their duty by warning of danger or discouraging risk (Section 1(5))
- Volenti and contributory negligence are available defences, and exclusion may be possible
- Key cases: Ratcliff v McConnell (locks and warnings sufficient), Tomlinson v Congleton (premises not inherently dangerous), Keown (activity vs premises distinction)