OCCUPIER’S LIABILITY ACT 1984

Occupiers Liability Act 1984 was enacted specifically to deal with duties owed by occupiers
to trespassers.

The Act covers people not covered by OLA 1957 … minimum DOC that cannot be excluded.

Both Acts coexist. OLA 1957 places a higher DOC on occupiers and applies to lawful
visitors only where as OLA 1984 applies to persons other than lawful visitors and imposes a
minimal DOC on occupiers which cannot be excluded.

Law prior to 1984 Act:

The common law originally took a harsh view of the rights of those who were not lawfully
on the land. --- Usually referred to as trespassers. At common law, the trespasser received the
least protection of any entrant on the occupier’s premises.

R. Addie & Sons (Collieries) v Dumbreck [1929]:

Minimal duty was set out in this case reflected the wider view that trespassers were wrongdoers
and in one sense deserved what they got.
The occupier of land has no duty towards a trespasser to take reasonable care for his protection
or even to protect him from concealed danger. The trespasser comes on to the premises at his
own risk.
An occupier is liable to a trespasser only where the injury suffered by the trespasser is due to
some wilful act involving something more than the absence of reasonable care. There must be
some act done with the deliberate malicious intention of doing harm to the trespasser, or at least
some act done with such reckless disregard of the presence of the trespasser as to be tantamount
to malicious acting. And this is so where a trespasser who is injured is a child, and so in such a
case the special duty of care towards children of tender years who may come into contact with
dangerous things does exist.

Bird v Holbrook (1828):

P and D had adjoining properties. P was chasing a peahen that had escaped from his property and
was badly injured by a spring-gun concealed in D's tulip garden in Bristol. The jury found in P's
favour and awarded him £50 damages. The Court of Common Pleas affirmed the decision,
saying it was clearly not acceptable to set (without giving any warning) hidden weapons to injure
a trespasser.

Dissatisfaction with the law, especially as it affected children, encouraged the courts to find the
implied licences so that children became lawful visitors.
While this "no-liability" rule might be thought just and reasonable in respect of a burglar, it was
less so in respect of a child (or even an adult) trespassing through sheer ignorance. The courts
thus tended to infer a licence to enter the premises whenever such an inference was supportable
on the facts.
Various attempts were made to reform the law by judicial decisions, the most important of which
was the decision given by HOL in British Railway Board v Herrington [1972]:
The HOL imposed on occupiers a “duty to act with common humanity” towards trespassers.
Facts: A 6-year-old boy P was badly burnt on the electric rail after going through a gap in the
fence. The stationmaster knew the fence was in poor condition, and knew children often
trespassed, but took no steps to correct this. The House of Lords, departing from an earlier
decision in Addie v Dumbreck [1929] AC 358 to find in P's favour, said the standard of care
demanded towards a trespasser was less than that required towards a lawful visitor. It is normally
sufficient to make reasonable efforts to keep out or chase off the intruder: suitable notice boards
or fencing or oral warnings, or a practice of chasing away trespassing children, will usually
suffice. But if the occupier knows or has reasonable grounds to believe that some
emergency has arisen whereby the trespasser is in imminent peril, ordinary humanity
requires further steps to be taken.

Duty is only owed when a reasonable person, knowing the physical facts which the occupier
actually knew, would appreciate that a trespasser’s presence at the point and time of the danger
was so likely that in all the circumstances it would be inhumane not to take appropriate steps to
eliminate, reduce or warn of the danger.
Whether it was inhumane not to warn or offer some protection would be judged objectively and
depended on all the circumstances of the case, including:
- the permanent or intermittent character of the danger;
- the severity of the injuries which it was likely to cause;
- in the case of children, the attractiveness to them of that which constituted the dangerous
object or condition of the land; and
- the expense involved in giving effective warning of it to the kind of trespasser likely to be
injured, in relation to the occupier’s resources in money or in labour.

The decision in Herrington was clarified and put into statutory form in the Occupiers' Liability
Act 1984. This Act covers all those on premises other than lawful visitors - mainly trespassers.
The duty that the 1984 Act imposes on the occupier is limited to dangers of death and personal
injury only (any property damage caused to a trespasser are not covered by the 1984 Act, but
would be covered by the common law i.e. the duty of common humanity).

 SCOPE OF THE ACT:

1. s.1(1): OLA 1984:

- will have effect in place of the rules of common law
- determine whether occupier’s owe a duty to non-lawful visitors in respect of
injuries suffered because of danger due to the state of the premises.

Revill v Newbery [1996]:

Neill LJ held that the 1984 Act imposed a duty on the occupier as an occupier. Hence where the
claim related to an activity or the occupier the ordinary common law of negligence would apply
and the fact that the defendant was also an occupier was ‘irrelevant’. Acts of the occupier that are
not done in connection with its occupation fall outside the purview of the Act. Put otherwise,
liability for acts which do not in themselves affect the safety of the premises is to be
determined according to the common law.
s.1(8): no liability for damage to property under this Act. The duty that the 1984 Act imposes on
the occupier is limited to dangers of death and personal injury only (any property damage caused
to a trespasser are not covered by the 1984 Act, but would be covered by the common law i.e. the
duty of common humanity).

 WHEN DOES THE OCCUPIER OWE A DUTY?

The first question in considering possible liability of an occupier under the 1984 Act is
whether in the particular circumstances the occupier had a duty of care at all? Such a duty is
not automatic: it arises only where the conditions set out in s.1 (3) are fulfilled:

s.1 (3): a duty to unlawful visitors in respect of any danger due to the state of the premises
arises only when 3 conditions are met:
(a) The occupier must be aware of the danger or have reasonable grounds to believe it exists
(b) Occupier knows, or has reasonable grounds to believe, that the person is in, or is likely to
come into, the vicinity of the danger.
(c) The risk is one against which in all circumstances of the case, the occupier may
reasonably be expected to offer the other some protection.

At first sight it appears that s.1 (3) (a) and (b) contain a partly objective, partly subjective test.
The first and second limbs seem ostensibly to contain both in referring not only to the individual
occupier’s actual knowledge, but also to that knowledge which he ought reasonably to have.
However, it has been held that even the second part of the test contains a subjective element.

Swain v Puri [1996]:

i. COA: occupier must have either actual knowledge of the danger or presence of a non-
visitor or he must have actual knowledge of the relevant facts from which a reasonable man
would draw the relevant inference (even if he does not himself draw that inference).
If he neither knows of the danger, nor of the state of affairs, then he will not be liable just
because a reasonable occupier would have known of that state of affairs. The question is not
whether he ought to have known but whether he actually did!
ii. Actual knowledge includes ‘shut-eye’ knowledge i.e. knowledge which was equivalent to
actual knowledge as a matter of law, and it may be equated … with an element of
wilfulness though not with negligence alone. Thus the occupier cannot close his eyes to the
obvious, knowing that, if he did look, he would discover facts which would indicate the
presence of trespassers.
e.g. a landowner who very seldom looks around his grounds, and fails to notice the
emergence of a danger, could not be held liable whereas a landowner who regularly surveys
his premises and turns a blind eye to an obvious source of danger would be caught by the
subsection.
s.1 (3) (b) requires that the presence of the trespasser in the vicinity must be known to the
occupier at the time when the trespass takes place.

Donoghue v Folkstone Properties [2003]:

C dived into water in the early hours of a mid-winter day and hit his head on an underwater
obstruction. Although the occupier knew that other people who were trespassers dived off the
slipway but, that was in summer. They had no reasonable grounds for knowing that he or anyone
else would come into the vicinity of the danger late at night in midwinter.

Revill v Newbery [1996]:

A man D had suffered a number of thefts from his allotment, so one night he sat in his shed with
a loaded shotgun. When he heard noises outside the shed he poked the shotgun through a hole in
the door and pulled the trigger, wounding P in the arm and chest. It was held that D owed P a
duty of care, even though P had entered his property as part of a criminal enterprise; and that he
had breached that duty. D knew there was an imminent danger (a shotgun) on his premises, and
knew P was in the vicinity (even if not in the direct line of fire), and that was enough for him to
owe a duty of care under the 1984 Act.

Higgs v Foster [2004]

The claiamant police officer went into the defendant’s yard looking for a stolen trailer he fell into
an uncovered inspection pt and was injured. The judge found that although the defendnts knew
that the pit was a potentially dangerous ground for trespassers, it could not be said that they had
reasonable grounds to suspect that a trespasser may come within the vicinity of the danger.

 CONTENT OF THE DUTY

s.1 (4): the duty is one ‘to take such care as is reasonable in all the circumstances of the case’ to
see that he does not suffer injury on the premises by reason of the danger concerned.

Ratcliffe v McConnell [1999]:

Greater protection needs to be shown to a child than an adult trespasser where the danger
concerned would be more apparent to the latter than the former.

But, Platt v Liverpool City Council [1997]:

A child trespasser was killed and his friend injured when the house in which they were playing
collapsed. It was accepted that s.1 (3) of the 1984 Act was satisfied but COA found no breach of
duty.
Unoccupied council houses had their doors and windows covered with metal sheets and were
inspected once a day to check the sheeting had not been removed. In addition, the property in
question was surrounded by a metal fence. Rejecting a suggestion that the council should have
hired security guards, Kennedy LJ, thought it simply absurd to argue that the council had failed
to exercise reasonable care.
 WARNING

s.1(5): a duty owed under OLA 1984 may be discharged by taking reasonable steps to give
warning of the danger or discourage persons from incurring the risk.

Unlike under the 1957 Act, the warning need not enable the uninvited entrant to be or remain
safe on the land.

A simple warning is often enough: although (as for lawful visitors) an effective warning must be
visible/audible and understandable. The potential trespasser once warned can normally avoid the
danger altogether by staying away from the premises. In any case, the occupier is not expected to
take excessive precautions incurring great expense or damaging other important social interests.
Tomlinson v Congleton [2003]:
Facts: P was injured when he dived into a shallow area of a lake on D’s property. Although D
had put warning signs, many people, including P, ignored to signs and continued to swim.
HOL: local authorities or other occupiers of land do not have to incur a substantial social and
financial cost to protect irresponsible persons from obvious dangers.

 DEFENCE OF VOLENTI NON FIT INJURIA

s.1(6): no duty is owed to a person in respect of risks willingly accepted as his by that person.
(The question whether a risk was so accepted to be decided on the same principles as in other
cases in which one person owes a duty of care to another).
Sylvester v Chapman (1935):
A man P reached over the barrier outside a leopard's cage to remove a cigarette smouldering on a
pile of straw; the leopard put its paw through the bars and scratched P. His claim failed: he was
clearly volenti to the risk, and he had not been rescuing anyone from imminent danger. : By
putting hand inside he consented to the risk.

Titchener v British Rail:

16-year-old girl and boy walked along a railway line and were struck by a train. Girl was
confined to wheelchair for life and boy died. Girl had walked along it a number of times and was
aware of the risks … defence of volenti succeeded.

Ratcliff v McConnell (1998) :

A 19-year-old student P climbed over a locked gate late one night and dived into the swimming
pool (which was closed for the winter and partially drained). He apparently dived into the
shallow end, and hit his head on the bottom, causing injuries which left him almost totally
paralysed. He sued the College D under the Occupier's Liability Act 1984
Held: there were several warning notices around the pool, and the dangers of diving into water of
unknown depth were too well-known to need any further express warning. D took steps to keep
the pool locked after hours, and P knew that afterhours access was prohibited. He also admitted
that he had paid ‘no regard’ to the prohibition on access and was going to do what he wanted
anyway. P had accepted the risks, and under s.1(6) of the 1984 Act, his claim must fail.
Exclusion of Liability?
It is perhaps worth noting that the 1984 Act, unlike the 1957 Act, makes no provision for the
exclusion of any liability by notice or otherwise. Parliament surely could not have intended
trespassers to have any greater protection than lawful visitors, and many lawyers therefore
believe that the 1984 Act sets out a minimum standard applicable in all cases, even where
liability to lawful visitors has been excluded under the terms of the 1957 Act.