Workshop 9 – Occupiers’ Liability

What is occupiers’ liability and what does the Occupiers’ Liability Act 1957 (OLA 1957) cover?

Occupiers’ liability concerns loss or injury caused by the state or condition of premises, or things done or omitted during occupation.

• OLA 1957 → governs the duty owed by occupiers to visitors.

• OLA 1984 → governs the duty owed by occupiers to non-visitors.

• The Acts operate alongside the common law, and claims are often pleaded under both statute and common law.

• Under the OLA 1957, an occupier owes the common duty of care to all visitors.

• The OLA 1957 generally applies to dangers arising from the state/condition of the premises, rather than an activity taking place on the premises.

• If the injury arises from an activity, a general negligence claim may be more appropriate.

Key case: Tomlinson v Congleton BC [2004] 1 AC 46

• The claimant dived into shallow water in a lake and suffered serious injury.

• The risk arose from his activity of diving, rather than a danger caused by the state of the premises.

• Therefore, the OLA 1957 did not apply to the risk in question.

What types of loss can a visitor claim for under the Occupiers’ Liability Act 1957?

Under the OLA 1957, a visitor can claim for:

• Personal injury

• Property damage

• Consequential economic loss arising from the injury or property damage.

What is the duty of care owed by an occupier under the OLA 1957?

• s.2(1) OLA 1957: An occupier of premises owes the common duty of care to all visitors.

• s.2(2) OLA 1957: The common duty of care is to take reasonable care in all the circumstances to ensure that the visitor is reasonably safe when using the premises for the purposes for which they were permitted to be there.

• The duty is to keep the visitor reasonably safe, not the premises.

Before determining whether the OLA 1957 applies, identify three key terms:

1. Occupier

2. Premises

3. Visitor

Who is an ‘occupier’ under the OLA 1957?

Under s.1(2) OLA 1957, an occupier is determined according to the common law.

Key definition: An occupier is someone with a sufficient degree of control over the premises (Wheat v Lacon [1966] AC 552).

• The test is based on control, not ownership.

• Whether someone has sufficient control is a question of fact.

• There can be more than one occupier of the same premises.

• Occupiers may have responsibility for different parts of the premises or different dangers.

• A person can be an occupier even if they do not own the premises.

Wheat v E. Lacon & Co [1966] AC 552

• The pub owners and managers both had sufficient control over the premises.

• Therefore, both were occupiers and owed a duty of care.

• Lord Denning’s principle: a person is an occupier where they have sufficient control that they should realise a failure to take care could cause injury to lawful visitors.

Four examples of occupiers:

1. Landlord does not live there → tenant is the occupier.

2. Landlord retains parts of the premises (e.g. stairways/common areas) → landlord is occupier of those parts.

3. Landlord grants a licence → landlord may remain an occupier.

4. Independent contractor employed → occupier generally remains responsible, although the contractor may also be an occupier if they have sufficient control.

Multiple occupiers: A claimant may be a visitor to one occupier but a trespasser to another (Ferguson v Welsh [1987] 1 WLR 1553).

What are ‘premises’ under the OLA 1957?

‘Premises’ has a wide meaning under s.1(3)(a) OLA 1957 and is not limited to land and buildings.

It includes:

• Fixed or movable structures

• Vessels

• Vehicles

• Aircraft

• Other structures, such as a ladder

Case: Wheeler v Copas [1981] 3 All ER 405 → a ladder was considered ‘premises’ for the purposes of the OLA 1957.

Who is a ‘visitor’ under the OLA 1957?

A visitor is someone who is lawfully on the premises and to whom the occupier owes an automatic duty of care.

Under s.1(2) OLA 1957, visitors are the same people who would have been treated as invitees or licensees at common law.

Visitors include people with:

• Express permission to be on the premises

• Implied permission to be on the premises

• Lawful authority to be on the premises

• Contractual permission to be on the premises

Key point: Visitors are lawful entrants, whereas people without permission may be trespassers and are generally dealt with under the OLA 1984.

When can express permission to enter premises be limited, causing a visitor to become a trespasser?

A person with express permission or a licence to be on premises is normally a lawful visitor. However, the occupier can limit that permission by notice. If the visitor goes beyond the limits, they may become a trespasser.

Permission can be limited by:

1. Area – A visitor may become a trespasser by entering an area they were not permitted to access.

   • The occupier must make the restriction clear and place signs in an appropriate location.

   • Pearson v Coleman Bros [1948] → child entered a circus animal enclosure; no signs indicated it was private, so she remained a visitor.

   • Darby v National Trust [2001] → an inconspicuous sign warning against bathing was insufficient; the claimant remained a visitor.

2. Time – Permission can be limited to certain hours, e.g. opening hours.

   • The time restriction must be clearly communicated.

   • Stone v Taffe [1974] → a guest remained a visitor despite being on the premises after licensing hours because the restriction had not been made clear to her.

3. Purpose – A visitor may become a trespasser if they use the premises for a purpose outside that for which they were invited.

   • Tomlinson v Congleton [2003] → the lake was intended for canoeing, fishing and windsurfing. By swimming, Mr Tomlinson went beyond the permitted purpose and became a trespasser.

Key rule: Express permission can be restricted by area, time or purpose. Going beyond the restriction can turn a visitor into a trespasser.

What is implied permission under the OLA 1957?

Implied permission arises from the occupier’s behaviour, even though no express permission has been given. A person with implied permission is a visitor.

Example: A postman has implied permission to walk up a garden path to deliver letters.

Implied permission can be limited or withdrawn by notice or reasonable steps.

Key cases:

• Lowery v Walker [1911] AC 10 → The public had used the defendant’s land as a shortcut for 35 years. The defendant knew and took no steps to stop them. The court found an implied licence, so the claimant was a visitor when attacked by a wild horse.

• Edwards v Railways Executive [1952] AC 737 → People regularly used railway land as a shortcut, but the defendant repeatedly repaired the fence to prevent access. The fence was intact when the claimant entered to retrieve his ball. The court held there was no implied permission because the defendant had taken reasonable steps to prevent access. The claimant was therefore a trespasser.

Key distinction:

• Occupier allows/does nothing to prevent access → implied permission may arise.

• Occupier takes reasonable steps to prevent access → no implied permission; entrant may be a trespasser.

What is ‘lawful authority’ under the OLA 1957?

Under s.2(6) OLA 1957, certain people can enter premises as lawful visitors, even without the occupier’s permission, because they have a right to enter conferred by law.

Examples include:

• Police officers with a warrant

• Persons with a statutory right of entry, such as gas board officials

Key point: Lawful authority means the person is a visitor because the law gives them a right to enter, rather than because the occupier has given permission.

What is contractual permission under the OLA 1957?

Under s.5(1) OLA 1957, where a person enters premises under a contract with the occupier, there is an implied term that the entrant is owed the common duty of care.

• The duty applies unless the contract expressly provides otherwise.

• The person is therefore treated as a visitor under the OLA 1957.

When is a claimant automatically owed a duty of care under the OLA 1957?

Once it is established that:

1. The defendant is an occupier of the premises; and

2. The claimant is a visitor,

the claimant is automatically owed the common duty of care under s.2(1) OLA 1957.

How are public and private rights of way treated under the OLA 1957 and OLA 1984?

• Public right of way (e.g. a public footpath) → covered by neither the OLA 1957 nor OLA 1984; users rely on common law.

• Private right of way → covered by the OLA 1984, not the OLA 1957.

• National Parks & Access to the Countryside Act 1949 → people exercising rights under the Act are not visitors under the OLA 1957, but are owed a duty under the OLA 1984.

• Countryside and Rights of Way Act 2000 → much of this area has been codified, including the ‘right to roam’.

Key distinction: Public rights of way → common law; private rights of way → OLA 1984.

Under the Occupiers’ Liability Act 1957, what is the standard of care owed by an occupier, and how does it vary for certain categories of visitors?

Under s.2(2) OLA 1957, an occupier owes visitors a duty to take reasonable care to ensure they are reasonably safe when using the premises for the purposes for which they are permitted to be there.

• The standard is that of the reasonable occupier and is assessed objectively.

• The occupier must take account of any known vulnerabilities of a visitor. In Pollock v Cahill [2015] EWHC 2260 (QB), a blind visitor fell from an open window, and the court held that the occupier should have warned him or kept the window closed.

• Children are owed a higher standard of care.

• Persons entering in the exercise of their calling (e.g. skilled professionals) are owed a lower standard of care, as they are expected to guard against risks associated with their expertise.

How does the Occupiers’ Liability Act 1957 modify the standard of care for child visitors, and what do the key cases illustrate?

Under s.2(3)(a) OLA 1957, an occupier must be prepared for children to be less careful than adults, meaning children are owed a higher standard of care.

Allurements to children

An occupier may be liable where a danger is particularly attractive to children:

• Taylor v Glasgow City Council [1922] 1 AC 44

  • A 7-year-old child died after eating poisonous berries from a bush on the defendant’s land.

  • The bush was an allurement to children.

  • The occupier knew of the danger but failed to warn children or fence off the bush.

  • Held: Occupier liable.

• Jolley v Sutton LBC [2000] 1 WLR 1082

  • A 14-year-old was seriously injured while repairing an abandoned, rotten boat left on council land.

  • The boat was an allurement to children.

  • It was foreseeable that children would be attracted to and interfere with it.

  • Held: Council liable for failing to take reasonable steps to make the premises safe.

Reliance on parental supervision

The courts may allow occupiers to rely on parents supervising young children:

• Phipps v Rochester Corporation [1955] 1 QB 450

  • A 5-year-old fell into a trench on a housing development site.

  • The danger would have been obvious to a supervising adult.

  • The court held that prudent parents would not allow a young child to roam there alone.

  • Held: The occupier was entitled to assume the child would be accompanied by an adult and was therefore not liable.

Key principle: Children are owed a higher standard of care, particularly where dangers may attract them, but occupiers can sometimes rely on reasonable parental supervision of very young children.

What is the standard of care owed to visitors entering premises in the exercise of their calling under the Occupiers’ Liability Act 1957?

Under s.2(3)(b) OLA 1957, an occupier may reasonably expect a visitor entering premises in the exercise of their calling to use their professional skills and to appreciate and guard against risks ordinarily incidental to their work.

As a result, less is expected of occupiers in relation to skilled visitors. Occupiers do not have to protect such visitors from risks that are a normal part of their job and against which they can reasonably be expected to protect themselves.

Key case: Roles v Nathan (Trading as Manchester Assembly Rooms) [1963] 1 WLR 1117

• Chimney sweeps were hired to clean flues connected to a boiler.

• They carried out the work without extinguishing the boiler and died from carbon monoxide poisoning.

• The occupier had warned them of the danger.

• Held: No liability. The risk was one ordinarily incidental to their profession, and the sweeps should have known how to guard against it using their specialist knowledge and training.

Key principle: Skilled visitors are owed a lower standard of care because they are expected to recognise and protect themselves against risks normally associated with their work.

How do courts determine whether an occupier has breached the standard of care under the Occupiers’ Liability Act 1957?

The test for breach is the same as in negligence. Courts balance factors such as:

• The likelihood of harm occurring.

• The magnitude of the potential harm.

• The social value of the activity creating the risk.

• The cost and practicality of preventative measures.

Key cases

Tedstone v Bourne Leisure Ltd [2008] EWCA Civ 654

• The claimant slipped on a small patch of water while walking from a jacuzzi to a swimming pool.

• The defendant carried out regular inspections, and the water had not been present for long.

• Held: No breach. The occupier had taken reasonable care and a reasonable occupier would not have done more.

Laverton v Kiapasha [2002] EWCA Civ 1656

• The claimant slipped on a wet floor in a takeaway shop and broke her ankle.

• The defendant had installed slip-resistant tiles, provided a doormat, and mopped the floor regularly.

• Held: No breach. The defendant had done all that could reasonably be expected given the resources available to the business.

Key principle: Whether an occupier has breached their duty depends on what reasonable steps could have been expected in the circumstances, taking into account both the risk and the occupier’s available resources.

How can an occupier discharge their duty of care through warnings under the Occupiers’ Liability Act 1957?

Under s.2(4)(a) OLA 1957, an occupier will satisfy their duty of care if they provide a warning that is sufficient to enable the visitor to be reasonably safe.

For a warning to be adequate, it should explain:

• What the danger is.

• Where the danger is.

• How it can be avoided.

Whether a warning is sufficient is a question of fact and depends on the nature of the danger and the scope, content, and form of the warning.

Key Cases

Roles v Nathan [1963] 1 WLR 1117

• Chimney sweeps were warned about the danger of carbon monoxide fumes and told to extinguish the boiler before starting work.

• The occupier even intervened when they failed to do so.

• Held: The warnings were sufficient to keep the sweeps reasonably safe, helping to defeat the claim.

Staples v West Dorset DC [1995] PIQR P439

• The claimant slipped on algae-covered rocks.

• The danger was obvious.

• Held: No warning was required because the risk was apparent to a reasonable visitor.

Warnings and Exclusion Notices

A notice may serve two functions:

1. Warning notice → helps the occupier discharge their duty by alerting visitors to a danger.

2. Exclusion notice → attempts to exclude or limit the occupier's liability.

Example:

"These stairs are very dangerous, please take care. Under no circumstances will the occupier be liable for any injury caused to those using the stairs."

• The first sentence may operate as a warning.

• The second sentence may operate as an exclusion notice.

Key principle: A warning only discharges the occupier's duty if it is enough to make the visitor reasonably safe, and a notice may simultaneously act as both a warning and an exclusion clause.

When can an occupier avoid liability for the negligence of an independent contractor under the Occupiers’ Liability Act 1957?

Although an occupier's duty to visitors is generally non-delegable, s.2(4)(b) OLA 1957 allows an occupier to escape liability for the negligence of an independent contractor if, in all the circumstances, the occupier acted reasonably by:

1. Reasonably hiring an independent contractor

• It must be reasonable to entrust the work to a contractor.

• The more specialist or technical the work, the more likely this requirement will be satisfied.

2. Reasonably selecting the contractor

• The occupier must take reasonable steps to check the contractor's competence, such as:

  • Qualifications

  • Experience

  • References

  • Trade association membership

• The level of checking required depends on the occupier (e.g. a private homeowner is held to a lower standard than a local authority).

3. Reasonably supervising and checking the work

• What is reasonable depends on the nature of the work.

• Technical work may require little or no checking by the occupier, whereas obvious defects should be identified.

Key Cases

Haseldine v Daw [1941] 2 KB 343

• A visitor was injured when a lift fell due to the negligence of specialist lift engineers.

• The engineers were reputable and the work was highly technical.

• The occupier lacked the expertise to inspect the machinery.

• Held: The occupier was not liable because all three requirements were satisfied.

Woodward v Mayor of Hastings [1945] KB 174

• A pupil slipped on an icy school step left in a dangerous condition by a cleaner.

• No specialist knowledge was needed to identify the danger.

• The occupier could and should have checked the contractor's work.

• Held: The occupier remained liable because they failed to adequately supervise and inspect the work.

Key principle: An occupier can rely on s.2(4)(b) OLA 1957 only if they acted reasonably in hiring, selecting, and supervising/checking the independent contractor. The more obvious the defect, the more likely the occupier is expected to detect it.

How are causation and remoteness assessed under the Occupiers’ Liability Act 1957?

The OLA 1957 does not contain specific rules on causation or remoteness. Therefore, courts apply the same principles used in negligence claims.

In practice, courts dealing with occupiers' liability claims tend to focus primarily on:

• Duty of care

• Breach of duty

• Damage

• Defences

Once the claimant has suffered loss and the occupier has been found to have breached their duty, courts will often assume that causation and remoteness are satisfied, unless there is a clear issue requiring further analysis.

If causation or remoteness is disputed, the usual negligence principles apply, such as:

• The "but for" test for factual causation.

• The rules on legal causation and remoteness of damage.

Key principle: In OLA 1957 claims, causation and remoteness are generally assumed once breach and damage are established, unless there is a specific reason to question whether the breach actually caused the loss or whether the loss was too remote.

What defences are available to an occupier under the Occupiers’ Liability Act 1957?

1. Consent (Volenti) – s.2(5) OLA 1957

The defence of volenti non fit injuria applies where the claimant:

• Had full knowledge of the specific risk; and

• Freely and willingly accepted that risk.

Key cases:

• White v Blackmore [1972] 2 QB 651

  • A spectator at a car rally was killed when a rope barrier failed.

  • Although warning notices indicated general danger, the claimant was not aware of the particular risk created by the inadequate barrier.

  • Held: Volenti did not apply.

• Titchener v British Railways Board [1983] 1 WLR 1427

  • A 15-year-old knowingly crossed through a gap in a fence onto a live railway line.

  • Held: She consented to the risk.

• White Lion Hotel (A Partnership) v James [2021] EWCA Civ 31

  • A hotel guest fell from a faulty sash window after sitting on the windowsill.

  • Although he accepted some risk of falling, he had not accepted the risk created by the hotel's breach of duty.

  • Held: Volenti failed.

Key principle: The claimant must accept the specific risk created by the defendant's breach, not merely a general risk of harm.

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2. Contributory Negligence – s.2(3) OLA 1957

When assessing the occupier's duty, the court takes into account:

"the degree of care, and of want of care, which would ordinarily be looked for in such a visitor."

If the claimant failed to take reasonable care for their own safety, damages may be reduced.

Key cases:

• Young v Kent CC [2005] EWHC 1342 (QB)

  • A 12-year-old fell through a brittle skylight.

  • The claimant's conduct was assessed against that of a reasonable child of the same age.

  • Held: Damages reduced by 50%.

• White Lion Hotel v James [2021] EWCA Civ 31

  • Although volenti failed, Mr James contributed to his own injuries by sitting on the windowsill.

  • Held: Damages reduced by 60% for contributory negligence.

Key principle: Contributory negligence does not defeat the claim but reduces damages according to the claimant's share of responsibility.

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3. Illegality

Illegality is a potential general defence to an occupiers' liability claim.

• It is not expressly preserved by the OLA 1957 in the same way as volenti.

• There is little authority on its application specifically under the OLA 1957.

Key principle: A defendant may raise illegality where appropriate, but the defence is not specifically provided for in the Act and has received limited judicial consideration in occupiers' liability cases.

What structure should be used when answering a claim under the Occupiers’ Liability Act 1957?

A. Identify the parties, tort, and loss

• State the claimant and defendant.

• Identify the tort (occupiers' liability under the OLA 1957).

• Identify the loss or injury suffered.

B. Duty

• An occupier automatically owes a duty to visitors.

• Consider:

  • Is the defendant an occupier?

  • Are the premises premises for the purposes of the Act?

  • Is the claimant a visitor?

C. Breach: Standard of Care

• Usually the standard of the reasonable occupier (s.2(2)).

• Higher standard for children (s.2(3)(a)).

• Lower standard for those entering in the exercise of their calling (s.2(3)(b)).

D. Breach: Has the Defendant Fallen Below the Standard?

Consider negligence breach factors:

• Likelihood of harm.

• Magnitude of harm.

• Social utility of the activity.

• Cost and practicality of precautions.

Also consider:

• Were adequate warnings given (s.2(4)(a))?

• Has the occupier discharged their duty through an independent contractor (s.2(4)(b))?

E. Causation

• Apply ordinary negligence principles (e.g. the "but for" test) if causation is in issue.

F. Remoteness

• Apply ordinary negligence principles to determine whether the damage was reasonably foreseeable.

G. Defences

Consider:

• Consent / volenti (s.2(5)).

• Contributory negligence (s.2(3)).

• Illegality (where applicable).

H. Remedies

• Determine the damages or other remedies available if liability is established.

Memory aid:
A-D-C-B-B-C-R-D-R → Parties → Duty → Breach (standard) → Breach (fall below standard) → Causation → Remoteness → Defences → Remedies.

What is the purpose and scope of the Occupiers’ Liability Act 1984?

The Occupiers’ Liability Act 1984 (OLA 1984) governs the duty owed by occupiers to non-visitors, most commonly trespassers.

Under the Act, an occupier may owe a duty to take reasonable care to ensure that trespassers do not suffer injury on the premises because of a danger present there, but this duty only arises if certain statutory conditions are satisfied.

Key Points

• The OLA 1957 applies to visitors.

• The OLA 1984 applies to non-visitors (trespassers).

• The Act recognises that, in some circumstances, it is fair to protect trespassers from serious dangers on land.

• If the statutory requirements are met, the occupier must take reasonable care to prevent foreseeable injury from dangers on the premises.

Key principle:
The OLA 1984 provides limited protection for trespassers and other non-visitors, requiring occupiers to take reasonable care where it is foreseeable that a trespasser may encounter a danger and suffer injury.

Who can claim under the Occupiers’ Liability Act 1984, what losses are recoverable, and how are "occupier" and "premises" defined?

Who is protected by the OLA 1984?

The Occupiers’ Liability Act 1984 applies to non-visitors (typically trespassers).

Recoverable Loss

Under ss.1(1)(a) and 1(9) OLA 1984, an occupier is only liable for:

• Physical injury

• Disease

• Any impairment of a person's physical or mental condition

Under s.1(8) OLA 1984, property damage is not recoverable.

Occupier

The term "occupier" has the same meaning as under the OLA 1957.

• s.1(2)(a) OLA 1984 provides that a person who would be treated as an occupier under the OLA 1957 is also treated as an occupier under the OLA 1984.

Premises

The term "premises" also has the same meaning as under the OLA 1957.

• Under s.1(2) OLA 1984, premises include "any fixed or moveable structure."

Key principle: The OLA 1984 protects non-visitors from personal injury only (not property damage), and the definitions of occupier and premises are the same as those used under the OLA 1957.

How is a trespasser (non-visitor) defined under the Occupiers’ Liability Act 1984, and what is the significance of Robert Addie & Son (Collieries) Ltd v Dumbreck?

Definition of a Trespasser

The leading definition comes from Robert Addie & Son (Collieries) Ltd v Dumbreck [1929] AC 358:

A trespasser is a person who enters land without any invitation or permission and whose presence is either unknown to the occupier or, if known, is objected to.

Key Case: Dumbreck

• A four-year-old boy entered land owned by a colliery company and was killed by machinery.

• The company knew children regularly entered the field to play and occasionally warned them away.

• The machinery was inadequately protected and attractive to children.

• Despite these facts, the boy was classified as a trespasser.

Held: The child's father could not recover damages under the law as it then stood because occupiers owed very limited duties to trespassers.

Significance

• The definition of trespasser remains valid today.

• However, the law has changed significantly since Dumbreck.

• Following the Occupiers' Liability Act 1984, trespassers may now be owed a duty of care in certain circumstances.

• A similar case today would likely be considered under the OLA 1984, potentially affording the child protection and a remedy.

Key principle: A trespasser is someone on land without permission, but unlike at the time of Dumbreck, modern law under the OLA 1984 can impose duties on occupiers towards trespassers where the statutory conditions are satisfied.

What are the requirements for establishing a duty of care under the Occupiers’ Liability Act 1984?

Unlike the OLA 1957, there is no automatic duty of care owed to non-visitors (trespassers). Under s.1(3) OLA 1984, a duty arises only if all three conditions are satisfied:

1. Awareness of the Danger (s.1(3)(a))

The occupier must:

• Be aware of the danger; or

• Have reasonable grounds to believe it exists.

"Reasonable grounds" requires actual knowledge of facts that would lead a reasonable occupier to recognise the danger.

Rhind v Astbury Water Park Ltd [2004] EWCA Civ 756

• The claimant dived into a lake and struck a submerged fibreglass container.

• The occupier did not know, and had no reason to know, the container was there.

• Held: No duty was owed.

2. Knowledge that the Trespasser Is or May Be in the Vicinity (s.1(3)(b))

The occupier must know, or have reasonable grounds to believe, that:

• The trespasser is in the vicinity of the danger; or

• May come into the vicinity of the danger.

The occupier must have this knowledge at the time of the accident.

Donoghue v Folkestone Properties Ltd [2003] QB 1008

• The claimant dived into a harbour at night during midwinter.

• Although the occupier knew people swam there in summer, they had no reason to expect swimmers at that time.

• Held: No duty was owed.

Swain v Natui Ram Puri [1996] PIQR P442

• The occupier must have actual knowledge of the claimant's presence or facts giving rise to a reasonable belief that someone is likely to be present.

3. Reasonable to Offer Protection (s.1(3)(c))

The risk must be one against which it is reasonable to expect the occupier to provide some protection.

Relevant factors include:

• Whether the danger was obvious or hidden.

• The likelihood and seriousness of injury.

• The cost and practicality of precautions.

• Whether the trespasser was a child or an adult.

• Whether the trespasser appreciated the risk.

Tomlinson v Congleton BC [2003] 3 All ER 1122

• Generally, occupiers are not required to protect trespassers from obvious risks or from injuries resulting from activities they voluntarily choose to undertake.

• Greater protection may be required where there is no genuine and informed choice, such as where the claimant is a child or lacks capacity.

Key principle: A duty under the OLA 1984 only arises if the occupier knows of the danger, knows or should know that trespassers may encounter it, and it is reasonable to expect protection to be provided against the risk.

How is breach of duty assessed under the Occupiers’ Liability Act 1984?

Under s.1(4) OLA 1984, an occupier owes a duty to take such care as is reasonable in all the circumstances to ensure that a non-visitor does not suffer injury because of the danger concerned.

The standard of care is therefore that of the reasonable occupier.

When deciding whether the occupier has breached this duty, the courts apply the usual negligence breach factors, including:

• Likelihood of harm.

• Seriousness of the potential injury.

• Cost and practicality of precautions.

• Social utility of the activity creating the risk.

The courts may also consider:

• The nature of the danger (e.g. whether it was hidden or obvious, and how dangerous it was).

• Whether the claimant was a child or an adult.

• The nature of the premises (e.g. a building site may present greater risks than ordinary land).

• The claimant's purpose for being there (e.g. accidental trespasser versus burglar).

• Whether trespassing was foreseeable and what steps the occupier took to prevent it.

Key principle: The occupier's duty under the OLA 1984 is less onerous than under the OLA 1957 because the claimant is a non-visitor (typically a trespasser). The court assesses whether the occupier took the level of precautions that a reasonable occupier would have taken in the circumstances.

How have the courts applied the breach standard under the Occupiers’ Liability Act 1984 in Swain and Young v Kent County Council?

Swain v Natui Ram Puri [1996] PIQR P442

• The defendant's factory was surrounded by a 7-foot fence topped with barbed wire.

• A 9-year-old child entered through a section where barbed wire was missing, climbed onto the roof using a ladder, and fell through a skylight.

• The defendant had taken reasonable precautions by erecting the fence.

• There was no evidence of previous trespass and the factory was defunct.

• Held: No breach (and no duty was owed) because the occupier had taken reasonable steps to prevent access and had no reason to anticipate trespassers.

Young v Kent County Council [2005] EWHC 1342

• A child climbed onto a school roof and fell through a brittle skylight.

• The council knew that children climbing onto the roof was a recurring problem.

• A Health and Safety Executive report had identified the skylight as dangerous.

• A simple and low-cost solution, such as fencing off access, was available but had not been implemented.

• Held: The council was liable because it failed to take reasonable precautions against a known and foreseeable risk.

Key Principle

When assessing breach under the OLA 1984, courts consider whether the occupier took reasonable steps in light of the foreseeable risk. An occupier is more likely to be liable where:

• Trespassing is foreseeable.

• The danger is known.

• A simple and practical precaution could have been taken.

Where adequate precautions have been taken and trespassing is not reasonably foreseeable, there is unlikely to be a breach.

How can an occupier discharge their duty under the Occupiers’ Liability Act 1984 through warning notices?

Under s.1(5) OLA 1984, an occupier may satisfy their duty by taking reasonable steps to give warning of the danger or discourage persons from incurring the risk.

This is easier than under the OLA 1957, where a warning must be sufficient to make the visitor reasonably safe. Under the OLA 1984, the occupier only needs to take reasonable steps to bring the danger to the trespasser's attention or discourage them from entering.

Key Points

• Warning notices can discharge the duty if they adequately warn of the danger or deter trespassers.

• Physical barriers may also amount to a warning.

• It is more difficult to rely on warnings where the claimant is a child, as they may be unable to read or appreciate the risk.

Key Case

Titchener v British Railways Board [1983] 1 WLR 1427

• The claimant entered a railway line through a gap in a fence and was injured.

• The railway company had erected fences around the tracks.

• Held: The fences were sufficient warnings and a reasonable attempt to discourage trespassers from entering the danger area.

Key principle: Under s.1(5) OLA 1984, an occupier can discharge their duty by taking reasonable steps to warn trespassers of the danger or discourage them from taking the risk, including through warning signs or physical barriers.

How are causation, remoteness, and defences dealt with under the Occupiers’ Liability Act 1984?

Causation and Remoteness

The OLA 1984 contains no specific rules on causation or remoteness.

Therefore, they are assessed in the same way as under the OLA 1957 and negligence law:

• Apply the usual rules of factual causation (e.g. the "but for" test).

• Apply the normal principles of legal causation and remoteness.

• In practice, these issues are often assumed to be satisfied unless a specific problem arises.

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Defences 1. Consent (Volenti) – s.1(6) OLA 1984

The defence applies where the claimant:

• Knew of the specific risk; and

• Voluntarily accepted it.

Key case: Ratcliff v McConnell and Harper Adams College [1997] EWCA Civ 2

• A drunk student climbed over a locked gate and dived into a shallow swimming pool after hours.

• The pool was surrounded by a fence and locked gate, and warning notices were displayed.

• The claimant broke his neck and was paralysed.

• Held: No duty was owed and, in any event, the occupier had taken reasonable steps to warn and deter trespassers.

• The defence of volenti would also have succeeded because the claimant knowingly accepted the risk of diving into a shallow pool.

Key principle: A claimant who knowingly and voluntarily undertakes an obvious risk may be barred from recovery.

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2. Contributory Negligence

Although not expressly provided for in the OLA 1984, contributory negligence can reduce damages.

Key cases:

• Young v Kent County Council [2005] EWHC 1342

  • Claimant's damages reduced by 50%.

• Tomlinson v Congleton BC [2003] 3 All ER 1122

  • The Court of Appeal (before being overturned on liability) reduced damages by two-thirds for contributory negligence.

Key principle: If the claimant fails to take reasonable care for their own safety, damages may be reduced to reflect their share of responsibility.

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3. Illegality

• Illegality is a potential general defence but is not preserved by the OLA 1984 in the way that volenti is.

• It is unlikely to succeed simply because the claimant was trespassing or engaged in unlawful conduct.

Key case: Revill v Newbery [1996] QB 567

• A burglar was shot by the occupier while attempting a burglary.

• The Court of Appeal suggested that allowing illegality too readily would undermine the purpose of the OLA 1984.

• Held: The claimant's unlawful intentions did not automatically defeat the claim.

Key principle: Illegality is available in theory, but courts are generally reluctant to allow it to defeat occupiers' liability claims brought by trespassers.

What structure should be used when answering a claim under the Occupiers’ Liability Act 1984?

A. Identify the Parties, Tort and Loss

• State the claimant and defendant.

• Identify the tort (occupiers' liability under the OLA 1984).

• Identify the injury or loss suffered (personal injury only).

B. Duty

Consider:

• Is the claimant a non-visitor/trespasser?

• Is the defendant an occupier?

• Are the premises premises within the meaning of the Act?

• Are the three conditions in s.1(3) OLA 1984 satisfied?

  1. Occupier knew of the danger (or had reasonable grounds to believe it existed).

  2. Occupier knew or had reasonable grounds to believe the claimant was or might be in the vicinity of the danger.

  3. It was reasonable to expect the occupier to offer some protection against the risk.

C. Breach: Standard of Care

• Standard is that of the reasonable occupier (s.1(4) OLA 1984).

D. Breach: Has the Defendant Fallen Below the Standard?

Consider:

1. The usual negligence breach factors plus:

   • Age of the claimant.

   • Nature of the danger (hidden or obvious).

   • Nature of the premises.

   • Purpose of the claimant (e.g. accidental trespasser or burglar).

   • Foreseeability of trespassing.

2. Whether the occupier took reasonable steps to:

   • Warn of the danger; or

   • Discourage the claimant from taking the risk (s.1(5) OLA 1984).

E. Causation

• Apply ordinary negligence principles.

F. Remoteness

• Apply ordinary negligence principles.

G. Defences

Consider:

• Consent / volenti (s.1(6) OLA 1984).

• Contributory negligence.

• Illegality (where relevant).

H. Remedies

• Determine the damages available for the claimant's personal injuries.

Memory Aid:
Parties → Duty (3 conditions) → Breach (standard) → Breach (application) → Causation → Remoteness → Defences → Remedies.

How can occupiers exclude or limit liability under the Occupiers’ Liability Act 1957, and what restrictions apply?

Exclusion Clauses under the OLA 1957

Under s.2(1) OLA 1957, an occupier may, to the extent they are legally permitted, extend, restrict, modify, or exclude the duty of care owed to visitors.

An exclusion clause is therefore a potential defence that can limit or prevent liability even where a duty and breach have been established.

Warning vs Exclusion Notice

Example notice:

"These stairs are very dangerous, please take care. Under no circumstances will the occupier be liable for any injury caused to those using the stairs."

• "These stairs are very dangerous, please take care" = a warning, which may help the occupier show they discharged their duty by alerting visitors to the danger.

• "Under no circumstances will the occupier be liable for any injury caused to those using the stairs" = an exclusion clause, which attempts to exclude liability if a claim is brought.

A notice can therefore have both effects simultaneously.

Restrictions on Excluding Liability

An occupier's ability to exclude or restrict liability is subject to four important controls:

1. Section 3 OLA 1957

• Imposes restrictions in certain circumstances on an occupier's ability to exclude liability.

2. Unfair Contract Terms Act 1977 (UCTA)

• Controls exclusion clauses, particularly where liability arises in a business context.

• Prevents or limits exclusion of liability for negligence in certain situations.

3. Consumer Rights Act 2015 (CRA)

• Applies where the visitor is a consumer.

• Subjects exclusion clauses to fairness requirements and may render unfair terms unenforceable.

4. Common Law

• The clause must satisfy common law rules on incorporation and interpretation.

• Any ambiguity will generally be interpreted against the party seeking to rely on the clause.

Key principle: Although s.2(1) OLA 1957 allows occupiers to exclude or limit their duty, this freedom is significantly restricted by the OLA 1957, UCTA 1977, the CRA 2015, and common law rules on exclusion clauses.

What restriction does s.3 OLA 1957 place on an occupier's ability to exclude liability?

Under s.3 OLA 1957, an occupier cannot exclude or restrict the common duty of care by contract where the duty is owed to certain third parties (strangers to the contract).

Section 3(1) OLA 1957

Where an occupier has entered into a contract that allows people who are not parties to that contract to enter or use the premises, the occupier cannot rely on that contract to exclude or restrict liability owed to those people as visitors.

Who is a "stranger to the contract"?

Under s.3(3) OLA 1957, a stranger to the contract is someone who is not entitled to the benefit of the contract, for example because they are not a party to it or a successor under it.

Purpose of the Provision

The section is designed to protect people such as employees of a contracting party.

For example:

• An occupier contracts with Company X to carry out work on their premises.

• Company X's employees enter the premises as visitors.

• The occupier cannot exclude or restrict their OLA 1957 liability to those employees through the contract with Company X.

Effect of Contractual Safety Obligations

If the contract requires the occupier to take particular safety measures or maintain a higher standard of care, those obligations may help determine the standard of care owed to the visitors.

Key principle: An occupier cannot use a contract to exclude or reduce liability owed to visitors who are strangers to that contract, particularly employees of a contractor who have been permitted to enter the premises under the agreement.

How does the Unfair Contract Terms Act 1977 (UCTA) restrict an occupier's ability to exclude liability under the Occupiers' Liability Act 1957?

UCTA 1977 applies to business-to-business situations, where:

• The occupier is using the premises for business purposes; and

• The visitor enters in the course of a trade, business, craft, or profession.

UCTA restricts the use of exclusion clauses and notices seeking to exclude liability for negligence, including liability under the OLA 1957.

Key Provisions s.1(1)(c) UCTA

For the purposes of UCTA, "negligence" includes breach of the common duty of care under the OLA 1957.

s.2(1) UCTA

A person cannot exclude or restrict liability for death or personal injury caused by negligence.

✅ Death or personal injury → liability cannot be excluded

s.2(2) UCTA

For other types of loss (e.g. property damage), liability may be excluded only if the clause or notice satisfies the reasonableness test.

✅ Other loss → exclusion possible if reasonable

s.11 UCTA

The reasonableness test asks whether it was fair and reasonable to allow reliance on the exclusion clause, considering all the circumstances existing when the liability arose.

Schedule 2 UCTA

Provides factors relevant to assessing reasonableness, including:

• The parties' relative bargaining strength.

• Whether the claimant knew or ought reasonably to have known of the term.

• Whether compliance with the condition was practicable.

• Any other relevant circumstances.

Key Principle

Under UCTA 1977, an occupier can never exclude liability for death or personal injury caused by negligence (including breach of the OLA 1957 duty). Liability for other losses may only be excluded if the exclusion clause satisfies the reasonableness test.

How does the Consumer Rights Act 2015 (CRA 2015) restrict an occupier's ability to exclude liability under the Occupiers' Liability Act 1957?

The CRA 2015 applies where:

• The defendant is acting as a trader (for purposes relating to their trade, business, craft, or profession); and

• The claimant is a consumer (acting wholly or mainly outside their trade, business, craft, or profession).

Like UCTA, the CRA restricts the use of exclusion clauses and notices seeking to exclude liability for negligence, including breaches of the duty owed under the OLA 1957.

Key Provisions s.65(1) CRA 2015

A trader cannot exclude or restrict liability for death or personal injury resulting from negligence.

✅ Death or personal injury → liability cannot be excluded

s.62(1) and (2) CRA 2015

For other types of loss, a trader may exclude or restrict liability only if the term or notice is fair.

✅ Other loss → exclusion possible if fair

What is an unfair term or notice?

Under s.62(6), a term or notice is unfair if:

"contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer."

Assessing Fairness

Under s.62(7), fairness is assessed by considering:

• The nature of the subject matter.

• All the circumstances existing when the relevant rights or obligations arose.

• Any related contractual terms.

Key Principle

Under the CRA 2015, a trader cannot exclude liability for death or personal injury caused by negligence. Liability for other losses can only be excluded or restricted if the exclusion clause or notice is fair, meaning it does not create a significant imbalance to the detriment of the consumer.

What common law restrictions apply to exclusion clauses in occupiers' liability claims where neither UCTA 1977 nor the CRA 2015 applies?

Where neither UCTA 1977 nor the CRA 2015 applies (for example, where the defendant is a private occupier), exclusion clauses may still be restricted by the common law principle of "common humanity" established in:

British Railways Board v Herrington [1972] AC 877

Principle of Common Humanity

This represents the minimum standard of care that an occupier owes and cannot be excluded by agreement or notice.

The key question is:

Would a conscientious person, with the occupier's knowledge, skill, and resources, reasonably have been expected to take steps to avoid the accident?

Factors Considered

The court may consider:

• The likelihood of the accident occurring.

• The seriousness of the risk.

• The occupier's knowledge of the danger.

• The cost and practicality of making the premises safe.

Effect on Exclusion Clauses

An exclusion clause is less likely to be effective where:

• There was a substantial probability of injury occurring; and

• The precautions needed to avoid the accident were simple, cheap, and practical.

Key Principle

Even where statutory controls do not apply, an occupier cannot exclude liability below the minimum standard of common humanity. If a reasonable and conscientious occupier could easily have prevented the accident, the courts may regard an exclusion clause as ineffective.

Can an occupier exclude or limit liability under the Occupiers' Liability Act 1984?

The OLA 1984 is silent on whether an occupier can exclude or limit liability to trespassers and other non-visitors.

There are two competing arguments:

1. Liability cannot be excluded because the OLA 1984 establishes a minimum level of protection for trespassers that should not be avoided by notices or agreements.

2. Liability can be excluded, because otherwise trespassers would enjoy greater protection than lawful visitors under the OLA 1957, which would be contrary to the policy of occupiers' liability law.

Likely Position

The most likely approach is that the same common law restriction applies as under the OLA 1957, namely the principle of common humanity from:

• British Railways Board v Herrington [1972] AC 877

This means that an occupier cannot exclude liability below the minimum standard of care required by common humanity.

UCTA and CRA

Unlike OLA 1957 claims:

• UCTA 1977 does not apply.

• CRA 2015 does not apply.

This is because the OLA 1984 contains no equivalent statutory provisions governing exclusion clauses for duties owed to trespassers.

Key principle: Although the OLA 1984 does not expressly deal with exclusion clauses, it is likely that occupiers remain subject to the common law principle of common humanity, while the statutory controls in UCTA 1977 and the CRA 2015 do not apply.