Occupiers' liability - Breach of duty towards trespassers

Learning Outcomes

This article outlines the duty of care owed by occupiers to individuals classified as trespassers under the Occupiers’ Liability Act 1984 (OLA 1984). It details the specific conditions under which such a duty arises and the standard of care required. For the SQE1 assessments, you need to understand how these principles apply to scenarios involving injuries sustained by trespassers, differentiate this duty from that owed to lawful visitors, and recognise relevant defences. This knowledge will enable you to apply the statutory rules effectively to multiple-choice questions. In particular, you should be able to distinguish dangers due to the state of the premises from risks arising from what the claimant chose to do on the premises; apply the three cumulative gatekeeping conditions in s 1(3) OLA 1984; evaluate the reasonableness standard in s 1(4) using age, nature of danger, foreseeability and practicality; assess whether a warning or deterrent was sufficient under s 1(5); and identify when defences such as consent and contributory negligence will reduce or eliminate liability. You must also be alert to the limits of the Act: the duty concerns personal injury only (s 1(8)) and applies only to dangers due to the state of the premises or things done or omitted to be done on them (s 1(1)).

SQE1 Syllabus

For SQE1, you are required to understand the principles governing an occupier's liability towards trespassers under the OLA 1984, including when a duty of care arises, the standard of that duty, and how to apply these rules to factual scenarios to determine liability and identify relevant defences in single best answer questions, with a focus on the following syllabus points:

• The distinction between visitors (OLA 1957) and trespassers (OLA 1984).
• The specific conditions under s 1(3) OLA 1984 that must be met for a duty to arise towards a trespasser.
• The nature and extent of the duty owed under s 1(4) OLA 1984.
• How warnings and other precautions affect the occupier's liability.
• The types of damage recoverable under the OLA 1984 (personal injury only).
• Relevant defences, such as consent and contributory negligence.
• The difference between dangers due to the state of the premises and risks arising from the claimant’s activities.
• The significance of occupiers’ actual knowledge vs reasonable grounds to believe both the danger exists and trespassers may be in its vicinity.
• Treatment of child trespassers, persistent trespass, and obvious risks.
• Categories covered and excluded by the 1984 Act (e.g., persons using private rights of way, access land, and the inapplicability to property damage claims).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Under which Act is the duty of care owed by an occupier to a trespasser primarily governed?
   1. Occupiers' Liability Act 1957
   2. Occupiers' Liability Act 1984
   3. Law Reform (Contributory Negligence) Act 1945
   4. Health and Safety at Work etc. Act 1974
2. Which of the following conditions MUST be met for an occupier to owe a duty of care to a trespasser under the OLA 1984?
   1. The occupier must have expressly invited the trespasser onto the premises.
   2. The trespasser must have suffered damage to their property.
   3. The occupier must be aware of the danger or have reasonable grounds to believe it exists.
   4. The risk must be one against which the occupier cannot reasonably be expected to offer protection.

3. True or False? An occupier owes the same common duty of care to both lawful visitors and trespassers.

4. Can an occupier discharge their duty to a trespasser under the OLA 1984 simply by providing a warning of the danger?

Introduction

While the Occupiers' Liability Act 1957 establishes the duty owed to lawful visitors, a different statutory framework, the Occupiers' Liability Act 1984 (OLA 1984), governs the duty owed to persons other than visitors, primarily trespassers. Historically, the common law afforded minimal protection to trespassers, reflecting a strong emphasis on landowners' rights. However, cases like British Railways Board v Herrington [1972] AC 877 recognised a limited duty of “common humanity”, particularly towards children. The OLA 1984 was enacted to clarify and define the extent of the duty owed to non‑visitors, balancing the occupier's interests with the need to prevent foreseeable injury.

The OLA 1984 is targeted and conditional. No automatic duty arises merely because someone is injured while trespassing. Instead, s 1(3) sets a three‑stage gateway that must all be satisfied before any duty arises. If those conditions are met, the standard is to take “such care as is reasonable in all the circumstances” to see that the trespasser is not injured by the danger concerned (s 1(4)). It is important to appreciate two further limits built into the statute: the duty is only in respect of injury or death (property damage is excluded: s 1(8)) and it applies only to dangers due to the state of the premises or things done or omitted to be done on them (s 1(1)). Where harm is caused by the claimant’s own risky activity rather than the condition of the land, liability will be unlikely.

LIABILITY TO TRESPASSERS: OCCUPIERS' LIABILITY ACT 1984

The OLA 1984 applies specifically to liability for dangers posed by the state of the premises, not dangers arising solely from activities carried out on the premises by the claimant or others. It covers personal injury or death but, importantly, excludes liability for damage to property belonging to the trespasser (s 1(8) OLA 1984).

Key Definitions

The terms 'occupier' and 'premises' carry the same meaning under the 1984 Act as they do under the 1957 Act. The statutory duty is owed to persons “other than visitors” (s 1(1)), which captures a wide array of non‑visitors including those who have exceeded their permission or entered without it.

Key Term: Occupier
A person who has a sufficient degree of control over the premises to the extent that they ought to realise that any failure on their part to use care may result in injury to a person coming lawfully or unlawfully onto the premises. There can be more than one occupier.

Key Term: Premises
Includes land and buildings, as well as fixed and moveable structures such as vehicles, vessels, and aircraft (s 1(9) OLA 1984, referencing s 1(3)(a) OLA 1957).

Key Term: Trespasser
A person who goes onto land without any invitation or permission, whose presence is unknown to the occupier or, if known, is objected to. This includes visitors who exceed the bounds of their permission.

Who is and is not covered under the 1984 Act requires care. The Act extends to persons entering under certain access agreements and orders under the National Parks and Access to the Countryside Act 1949, and to those on designated access land under the Countryside and Rights of Way Act 2000 (with limitations). By contrast, persons using a public right of way (i.e. highways users) are outside both the 1957 and 1984 Acts; any duty to them arises under highways legislation or at common law.

When is a Duty Owed? The Conditions under Section 1(3)

Unlike the automatic duty owed to visitors under the 1957 Act, an occupier only owes a duty to a trespasser under the 1984 Act if all three conditions specified in s 1(3) are satisfied:

• (a) Awareness of Danger: The occupier is aware of the danger or has reasonable grounds to believe it exists. This is focused on the occupier’s knowledge of the relevant danger. The occupier need not constantly patrol or inspect, but if facts are known that would alert a reasonable occupier to a hidden danger, the condition may be satisfied. Where a submerged hazard is unknown and there are no grounds to suspect it, the condition will not be met. Conversely, where routine operations or past incidents make a hazard clear, actual or constructive awareness can be established.

• (b) Knowledge of Trespasser: The occupier knows or has reasonable grounds to believe that the trespasser is in the vicinity of the danger concerned, or that they may come into the vicinity of the danger. This turns on evidence of actual trespassing or patterns of access. Prior incidents, reports of children getting onto roofs or into quarries, or a notorious local “hot spot” for swimming or climbing may suffice. A single, wholly unexpected and unprecedented entry may not.

• (c) Reasonableness of Protection: The risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer the trespasser some protection. This is an evaluative judgment considering the gravity and likelihood of injury, the nature of the danger and premises, the age and vulnerability of likely trespassers, the feasibility and cost of precautions, and the social value of the activity conducted on the land. So the more serious the potential injury and the more foreseeable the trespass, the stronger the case for some protective measure; and the less practicable or costly a measure, the less likely it is that reasonableness requires it.

These three requirements are cumulative: if any one is not met, no duty arises under the Act. Illustrations across the case law show how the conditions are applied: where an occupier knew children frequently entered and climbed, failure to take modest precautions could satisfy s 1(3)(c); where a hazard was unknown and unforeseeable, s 1(3)(a) could not be satisfied; where trespass was a once-off winter event with no history, s 1(3)(b) failed.

Nature of the Duty under Section 1(4)

Where the three conditions in s 1(3) are met, the duty owed under s 1(4) 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”.

This standard of “reasonable care” is context-sensitive. Important factors include:

• The nature of the premises (e.g., open countryside vs industrial or school premises).
• The degree of danger (hidden vs obvious; static vs transient).
• The magnitude and likelihood of harm (minor cuts vs catastrophic head injury).
• The practicality and cost of precautions (e.g., improved signage, fencing at hot spots, securing ladders).
• The likely characteristics of trespassers (children require greater anticipation than adults; the more vulnerable the group, the greater the care).
• The foreseeability and persistence of trespass (sporadic, highly unlikely intrusions demand less than regular, predictable incursions).
• The character of the entry (curious child, inadvertent walker, or deliberate criminal trespasser).
• The need not to require land to be made completely risk‑free (particularly with natural features), nor to compel closure of wide areas to prevent misuse by a few.

Courts emphasise that occupiers are not insurers of trespassers. The Act seeks to prevent serious harm where it is reasonably foreseeable and can be addressed by sensible, proportionate measures without imposing an impossible burden on landowners.

Discharging the Duty: Warnings (Section 1(5))

An occupier may be able to discharge the duty owed under s 1(4) by taking reasonable steps to warn the trespasser of the danger or to discourage them from incurring the risk (s 1(5) OLA 1984). Unlike the 1957 Act (under which a warning must enable the visitor to be reasonably safe), a warning to a trespasser need only be reasonable in the circumstances to alert or deter. The adequacy of a warning depends on the nature of the danger and the likely audience:

• For an adult trespasser, clear “No Swimming” or “Danger: Shallow Water/Hidden Objects” signs at obvious access points may suffice.
• For children, a simple sign may not be enough; physical measures (higher fencing, locked access ladders, tamper‑proofing) may be required where trespass is persistent and the danger severe. Conversely, where the danger is obvious to a reasonable child and precautions would be disproportionate, additional measures may not be required.

Deterrents contemplated by s 1(5) include obstacles and barriers. The law does not require an occupier to erect barriers everywhere that an accident could occur; the test remains reasonableness in all the circumstances.

Key Term: volenti (consent)
The complete defence whereby a claimant who knew of, understood, and voluntarily accepted a specific risk cannot complain of injury arising from that risk. Under OLA 1984, s 1(6) preserves this defence for trespassers.

Obvious Risks and Activities

The duty under OLA 1984 relates to dangers due to the state of the premises. An important distinction must be drawn between:

• A danger arising from the state of the land or structures (e.g., concealed underwater obstruction in a lake, fragile roof lights, unguarded drop on a ruined castle wall); and
• A risk created by what the claimant chose to do on the premises (e.g., running headlong down a steep bank, entering shallow water headfirst next to a sign, misusing a safe fire escape as a climbing frame).

Where the risk is obvious and arises from the claimant’s voluntary activity rather than any dangerous state of the premises, an occupier is rarely expected to take steps to protect against it. For example, adults choosing to enter shallow water headfirst in the face of clear warnings, or to climb secure structures for fun, may be held the authors of their own misfortune. That said, where the state of the premises includes a concealed hazard and the occupier knows of persistent trespass, especially by children, proportionate steps (site‑specific warnings, fencing, or restricting access) may be reasonable.

Worked Example 1.1

A disused quarry, owned by Quarry Ltd, is known locally as a spot where teenagers trespass to swim in the water-filled pit, despite 'No Trespassing' signs. The water contains hidden underwater rocks. Quarry Ltd is aware of both the trespassing and the hidden rocks. Liam, 17, ignores the signs, jumps into the water, hits a hidden rock and suffers serious injury. Does Quarry Ltd owe Liam a duty under OLA 1984?

Answer:
Quarry Ltd likely owes Liam a duty.
(a) They are aware of the danger (hidden rocks).
(b) They know teenagers trespass and swim there (reasonable grounds to believe a trespasser may be in the vicinity of the danger).
(c) Given the severity of the risk (serious injury/death from hidden rocks) and the known trespassing by teenagers, it is likely reasonable to expect Quarry Ltd to offer some protection (e.g., better fencing, more prominent warnings specifically about hidden rocks).
Therefore, a duty under s 1(4) arises. Whether Quarry Ltd breached that duty depends on the reasonableness of their existing precautions.

Worked Example 1.2

Continuing from Worked Example 1.1, Quarry Ltd had placed signs stating 'DANGER - DEEP WATER - NO SWIMMING'. Liam saw these signs but chose to jump anyway. Would the warning signs be sufficient to discharge Quarry Ltd's duty?

Answer:
Potentially not. While the signs warn against swimming and deep water, they do not specifically mention the hidden rocks, which is the actual danger that caused Liam's injury. A court might find that the warning was not sufficient in the circumstances to alert Liam to the specific risk he encountered (s 1(5) OLA 1984). Furthermore, the case law suggests liability is less likely where the injury results from the claimant's own risky activity rather than a danger due to the state of the premises; however, the hidden rocks here do relate to the state of the premises. The adequacy of the warnings and the feasibility of further measures (e.g., fencing known entry points) are key.

Worked Example 1.3

A 10‑year‑old climbs a hospital’s external fire‑escape ladder after hours and falls. The structure itself is sound and safe for its intended use by adults in emergencies. The hospital knows occasional children play on the grounds but has had no reports of climbing. Is the hospital liable under OLA 1984?

Answer:
Likely not. The duty only arises if the occupier is aware of the danger or has reasonable grounds to believe it exists (s 1(3)(a)) and knows or has reasonable grounds to believe children may come into its vicinity (s 1(3)(b)). A safe fire escape is not dangerous in itself for its intended use; the risk materialised because of the child’s misuse. Even if s 1(3) is satisfied, s 1(4) asks what is reasonable: where the structure is not dangerous in itself and persistent climbing was not known, additional measures beyond ordinary security may not be required. Clear “No unauthorised access” signs and routine security may suffice.

Worked Example 1.4

In mid‑winter, late at night, an adult enters the water headfirst from a harbour slipway into deep water and hits a submerged object. The harbour authority knew that people swam in summer but had no history of winter swimming. Are the s 1(3) conditions met?

Answer:
Probably not. As to s 1(3)(a), the authority may not have known of the specific submerged object. As to s 1(3)(b), knowledge that people enter the water in summer does not necessarily translate into reasonable grounds to believe trespassers would be in the vicinity in winter at night. Without satisfying s 1(3)(b), no duty arises. Even if a duty did arise, the obviousness of the risk and the claimant’s timing and choice would weigh strongly against breach.

Worked Example 1.5

A householder sleeps in a shed with a shotgun after repeated burglaries. At 3 a.m., a trespasser tries to break in and is shot and injured. Does OLA 1984 apply?

Answer:
No, not to the shooting. The injury was caused by the occupier’s activity (the deliberate discharge of a firearm), not by a danger due to the state of the premises (s 1(1)). Any liability must be analysed under the ordinary law of negligence and trespass to the person, where considerations such as the reasonableness of self‑defence and contributory negligence arise. The 1984 Act does not regulate deliberate acts of this kind.

Worked Example 1.6

A local authority manages a country park with a ruined wall bordering a steep drop. There is an obvious gap where parapet stones are missing. A teenager trespasses after closing time, climbs onto the wall and falls. Several incidents of after‑hours trespass are known. How is breach under s 1(4) assessed?

Answer:
The court will weigh the obviousness and seriousness of the risk, the foreseeability of after‑hours trespass (which is known), and the practicality and cost of precautions. If modest measures such as targeted signage at access points and repairing or fencing the gap are feasible, failure to adopt them may be unreasonable. However, land need not be made completely risk‑free, and an obvious, deliberate risk‑taking act by a trespasser outside opening hours will still be relevant to breach and causation.

Further guidance on s 1(3): practical markers from the cases

• s 1(3)(a) (danger awareness): hidden dangers known to the occupier—such as submerged hazards in popular bathing spots—support liability; entirely unknown and unsuspected hazards do not.
• s 1(3)(b) (knowledge of trespass): a history of trespass in the vicinity, evidence of curiosity hotspots (e.g., roofs, quarries) or prior incidents generally suffices; one‑off, unforeseeable entries may not.
• s 1(3)(c) (reasonableness to offer protection): small, inexpensive steps to address a severe, foreseeable risk—especially to children—are often reasonable; expensive, impractical steps to guard against extremely unlikely misuse (e.g., fencing miles of coastline) are not.

Exam Warning

Remember that the OLA 1984 only covers personal injury. Claims for damage to a trespasser's property (e.g., clothing torn on barbed wire) are not recoverable under this Act (s 1(8)). Also distinguish liability arising from the state of the premises (covered by the Act) from liability for activities carried out on the premises (which would fall under general negligence or intentional torts). Be alert to entrants who begin as visitors and become trespassers by straying into prohibited areas or by engaging in prohibited activities; a claim will then fall under the 1984 Act, not the 1957 Act.

Defences

If a duty is owed and breached under the OLA 1984, the occupier may still rely on certain defences:

• Consent (volenti non fit injuria): Explicitly preserved by s 1(6) OLA 1984. If the trespasser fully understood and voluntarily accepted the specific risk, the occupier may have a complete defence. This is a high threshold: general awareness of risk is insufficient; the evidence must show informed and voluntary acceptance of the particular risk that materialised.

• Contributory Negligence: If the trespasser failed to take reasonable care for their own safety, their damages may be reduced under the Law Reform (Contributory Negligence) Act 1945. Reductions are common where claimants chose to ignore clear warnings, took obvious risks (such as entering unknown water headfirst), or were intoxicated. The reduction will reflect the contribution to the damage, not to the mere occurrence of the accident.

• Exclusion of Liability: The 1984 Act is silent on exclusion. Statutory controls on exclusion for negligence (UCTA 1977 and the Consumer Rights Act 2015) regulate business occupiers’ attempts to exclude or restrict liability to visitors, but do not generally apply to trespassers. It is often said that because visitors cannot have liability for death or personal injury excluded in most business‑to‑consumer contexts, trespassers should not be in a better position; accordingly, it is thought that an occupier can, in principle, seek to exclude or limit liability to trespassers by clear notices. However, exclusions will be read strictly, cannot legitimise deliberate or reckless harm, and will be assessed against the backdrop of the s 1(3) gateway and the s 1(4) reasonableness standard. In practical terms, clear and targeted warning/deterrent signage is usually more effective than broad exclusionary language.

• Illegality (ex turpi causa): Although not a defence under the Act itself, illegality may in some cases defeat a claim at common law where the injury is inextricably linked to the claimant’s serious criminal conduct. Its application is highly fact‑sensitive and separate from the statutory scheme.

The same public policy considerations that inform defences feed back into the s 1(4) assessment of reasonableness: where the risk is obvious and created by the claimant’s choice to engage in dangerous activity, and where adequate warnings have been provided, it will generally not be reasonable to require occupiers to do more.

Key Point Checklist

This article has covered the following key knowledge points:

• The Occupiers' Liability Act 1984 governs the duty owed by occupiers to persons other than visitors (primarily trespassers).
• The duty under the 1984 Act concerns injury or death caused by a danger due to the state of the premises or things done/omitted on them; property damage is excluded (s 1(8)).
• A duty only arises if all three conditions under s 1(3) are met: the occupier’s awareness (actual or constructive) of the danger; knowledge/reasonable grounds to believe trespassers are or may come into its vicinity; and that it is reasonable in all the circumstances to expect the occupier to offer some protection.
• If a duty arises, the standard of care under s 1(4) is to take such care as is reasonable in all the circumstances to prevent injury by the relevant danger. Reasonableness is informed by the gravity and likelihood of harm, the nature of the premises and the danger, the characteristics of likely trespassers (e.g., children), prior trespass, and the practicality and cost of precautions.
• Warnings and deterrents (s 1(5)) may discharge the duty if reasonable in the circumstances. Signs are more likely to suffice for adults; for children and persistent trespass, barriers or targeted physical measures may be required.
• Occupiers are generally not liable for injuries resulting solely from obvious risks associated with the claimant’s voluntary activities, as distinct from dangers in the state of the premises.
• Defences of consent (s 1(6)) and contributory negligence apply. While the 1984 Act is silent on exclusion of liability, it is generally thought possible to exclude or limit duties to trespassers by clear notices, subject to strict scrutiny and public policy constraints.
• Persons using public rights of way fall outside both the 1957 and 1984 Acts. Some categories of non‑visitors are included with limitations (e.g., access land), but the core focus remains trespassers.
• Visitors who exceed their permission become trespassers; any claim for injury after the point of exceedance is governed by the 1984 Act, not the 1957 Act.

Key Terms and Concepts

• Occupier
• Premises
• Trespasser
• volenti (consent)