Occupiers' liability - Defences and exclusion of liability

Learning Outcomes

This article examines occupiers’ liability defences and exclusion of liability under the Occupiers’ Liability Acts 1957 and 1984, including:

• The distinction between warnings that discharge the duty (no breach) and exclusions that limit or avoid liability despite breach, and the statutory control applicable to each
• Requirements and limits of consent (volenti) for visitors and trespassers, including capacity to consent, knowledge of the precise risk, and voluntariness, and typical contexts where it rarely succeeds (employees, rescuers, children)
• Contributory negligence under the Law Reform (Contributory Negligence) Act 1945, including typical percentage reductions for non-use of safety measures such as seatbelts and helmets
• Adequacy of warnings for different dangers and classes of entrants (adult visitors, children, skilled visitors, and trespassers) under s 2(4)(a) OLA 1957 and s 1(5) OLA 1984
• Effectiveness of exclusion notices or terms under s 2(1) OLA 1957, and the role of the Unfair Contract Terms Act 1977 (UCTA) and the Consumer Rights Act 2015 (CRA)
• The limited duty under OLA 1984 and the role of volenti, warnings, and contributory negligence in trespasser claims, including the significance of obvious risks and “state of the premises” versus activity dangers

SQE1 Syllabus

For SQE1, you are required to understand the defences applicable to claims under the Occupiers' Liability Acts 1957 and 1984, and the rules regarding the exclusion of liability. It is likely that you will need to identify the relevant defences in a scenario and advise on their potential success, or determine the validity of an exclusion clause, with a focus on the following syllabus points:

• The requirements for the defence of consent (volenti non fit injuria) in occupiers' liability claims.
• How contributory negligence can reduce damages awarded to a claimant.
• The role and adequacy of warnings in discharging the occupier's duty.
• The statutory limitations on excluding liability for death, personal injury, and other damage under UCTA 1977 and CRA 2015.
• Comparing the availability and application of defences under the 1957 Act and the 1984 Act.

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. Which defence operates as a complete bar to a claim under the Occupiers' Liability Acts?
   1. Contributory negligence
   2. Consent (volenti non fit injuria)
   3. Warnings
   4. Exclusion clause subject to reasonableness
2. Under the Occupiers' Liability Act 1957, can a business occupier exclude liability for death or personal injury caused by their negligence?
   1. Yes, if the exclusion clause is clearly worded.
   2. Yes, if the visitor agrees to it in writing.
   3. No, under any circumstances.
   4. Yes, if the clause satisfies the reasonableness test.
3. What is the primary effect of a successful plea of contributory negligence in an occupiers' liability claim?
   1. The claim is dismissed entirely.
   2. The occupier receives damages from the claimant.
   3. The claimant's damages are reduced.
   4. The occupier must provide additional warnings.

Introduction

Previous articles have explored the duties owed by occupiers to visitors (under the Occupiers’ Liability Act 1957) and non-visitors (under the Occupiers’ Liability Act 1984). However, even where an occupier is found to have breached the relevant duty of care, they may not be liable, or their liability may be reduced, if they can successfully raise a defence. Occupiers may also seek to prevent liability arising in the first place by excluding or limiting their duty through contractual terms or notices. This article examines the key defences available and the rules surrounding the exclusion of liability under both Acts.

The law distinguishes between three related but distinct mechanisms that can protect occupiers:

• No breach at all because the occupier has discharged the statutory duty (for example, by giving an adequate warning that, in the circumstances, made the visitor reasonably safe under s 2(4)(a) OLA 1957; or by reasonable steps to warn/discourage trespassers under s 1(5) OLA 1984).
• A complete defence even if there was breach, principally consent (volenti non fit injuria), which negates liability entirely where it applies.
• A partial defence, principally contributory negligence under the Law Reform (Contributory Negligence) Act 1945, which reduces damages to the extent the claimant’s own fault contributed to the damage.

Exclusion of liability operates differently. It does not say there was no breach; rather, it seeks to restrict or avoid liability in advance. Under s 2(1) OLA 1957, an occupier may “extend, restrict, modify or exclude” the duty “in so far as he is free to do so.” That freedom is tightly constrained for business occupiers and traders by UCTA 1977 and CRA 2015.

Defences to Claims by Visitors (OLA 1957)

Where a lawful visitor suffers injury due to the state of the premises, and the occupier is potentially in breach of the common duty of care under the OLA 1957, the occupier may rely on several defences.

Consent (Volenti non fit injuria)

Key Term: Volenti non fit injuria
A complete defence where the claimant voluntarily agrees to accept the full legal risk of harm arising from the defendant's negligence. The claimant must have full knowledge of the nature and extent of the risk.

Section 2(5) OLA 1957 preserves the common law defence of volenti non fit injuria (consent). For the defence to succeed, the occupier must prove that the visitor:

1. Had full knowledge of the precise risk involved; and
2. Voluntarily agreed to accept that risk.

Mere knowledge of a danger does not automatically imply consent to the legal risk. For example, an employee who knows their workplace is dangerous but continues to work there out of economic necessity is unlikely to be held to have voluntarily accepted the risk (Smith v Baker & Sons [1891] AC 325). Similarly, the defence is unlikely to succeed against rescuers acting under a legal, social, or moral duty (Haynes v Harwood [1935] 1 KB 146), or where the claimant cannot be said to have genuinely chosen to run the risk (e.g., where a person is acting under pressure, compulsion, or lacks capacity to consent).

Capacity and context matter. Children, and those lacking capacity under the Mental Capacity Act 2005, cannot usually give valid consent. Spectators and participants in sports may be taken to accept the ordinary risks of the activity (Wooldridge v Sumner [1963] 2 QB 43; Condon v Basi [1985] 1 WLR 866), but not risks created by negligent conduct going beyond the rules or ordinary incidents of the activity. The line is drawn between “ordinary risks” (potentially consented to) and risks introduced by unreasonable conduct (not consented to).

There is also a specific statutory restriction: in road traffic cases involving motor vehicles where compulsory insurance applies, a passenger’s consent is ineffective by statute (Road Traffic Act 1988, s 149). That provision does not apply to other contexts.

Worked Example 1.1

Rhea visits an outdoor activity centre run by Adventure Ltd. Before undertaking a high-ropes course, she signs a form acknowledging the natural risks of falling and confirming she participates willingly. She ignores specific safety instructions given by the instructor about clipping her harness correctly onto the safety line. She falls and is injured. Adventure Ltd had ensured the course was properly maintained and the instructor was competent. Can Adventure Ltd rely on the defence of consent?

Answer:
Adventure Ltd might argue Rhea consented by signing the form and participating willingly. However, while she consented to the natural risks, she likely did not consent to risks created by ignoring specific safety instructions. The better argument for Adventure Ltd might be contributory negligence, based on Rhea ignoring the instructions. The success of volenti would depend on whether the court considers she accepted the specific risk arising from her own failure to follow instructions, which is less likely than acceptance of risks natural to the activity itself.

Contributory Negligence

Key Term: Contributory negligence
A partial defence where the claimant’s own lack of reasonable care for their safety contributes to the damage suffered. Liability is apportioned between the claimant and defendant according to their respective fault.

If a visitor fails to take reasonable care for their own safety and this contributes to their injury, their damages may be reduced under the Law Reform (Contributory Negligence) Act 1945. This is a partial defence, meaning it reduces the amount of damages payable rather than defeating the claim entirely. The court assesses the extent to which the visitor’s fault contributed to the harm and reduces the damages accordingly.

In road traffic settings, the Froom v Butcher guidelines often guide the reduction for non-use of seatbelts: around 25% if injuries would have been avoided entirely by wearing a belt; around 15% if injuries would have been less severe; and 0% if wearing a belt would have made no difference. Similar reasoning may be applied to cycle or motorcycle helmets, or other obvious personal protective equipment, where evidence supports a causal contribution.

Children are assessed by the standard of a reasonable child of the same age (Mullin v Richards [1998] 1 WLR 1304), and it will often be inappropriate to make significant reductions for very young children. Skilled visitors—those “exercising their calling”—may be expected to guard against ordinary professional risks under s 2(3)(b) OLA 1957; their failure to do so may sound in contributory negligence where the risk is one they should have managed.

Warnings

As discussed previously, an occupier can discharge the common duty of care by giving an effective warning (s 2(4)(a) OLA 1957). A warning must be sufficient, in all the circumstances, to enable the visitor to be reasonably safe. If an adequate warning is given, the occupier is deemed not to have breached their duty, and therefore no question of defences arises. However, simply putting up a sign does not automatically absolve the occupier; its effectiveness depends on the specific danger, the type of visitor, and the clarity of the warning.

Several principles are worth emphasising:

• A general warning may suffice where the risk is obvious to an adult visitor; there is no obligation to warn against purely obvious dangers (Darby v National Trust [2001] EWCA Civ 189; Staples v West Dorset DC [1995] 93 LGR 536).
• Where a danger is not obvious or presents a latent hazard, a clear and appropriately placed warning will often be necessary and may discharge the duty (English Heritage v Taylor [2016] EWCA Civ 448, concerning a sheer drop at a castle).
• The adequacy of warnings must be assessed against the likely readers. Warnings directed at children may need to be more prominent, clearer, or supplemented by physical measures (barriers, cordons) where reasonable, bearing in mind s 2(3)(a) which recognises that children will be less careful than adults.
• The occupier can also rely on the visitor’s own skill where the risk is one ordinarily incident to their calling (s 2(3)(b)), making a general warning sufficient for a professional who should appreciate the risk (Roles v Nathan [1963] 1 WLR 1117, chimney sweeps and carbon monoxide warnings).

Exclusion of Liability (OLA 1957)

Section 2(1) OLA 1957 allows an occupier to ‘extend, restrict, modify or exclude’ their duty to visitors by agreement or otherwise, in so far as they are free to do so. This means occupiers can use notices or contract terms to limit or completely exclude their liability. However, this freedom is significantly restricted by legislation, primarily the Unfair Contract Terms Act 1977 (UCTA) and the Consumer Rights Act 2015 (CRA).

Statutory Controls

The ability to exclude liability depends heavily on whether the occupier is acting in the course of a business and the type of harm suffered.

• UCTA 1977: Controls exclusion of negligence liability in a “business liability” context, and where terms/notices are used against non-consumers.
• CRA 2015: Controls contractual terms and consumer notices used by “traders” against consumers.

Key Term: Reasonableness test (UCTA)
Under UCTA 1977, a term or notice excluding or restricting liability (other than for death or personal injury) is only effective if it is fair and reasonable having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made (s 11). For non-contractual notices, the court assesses whether it is fair and reasonable to allow reliance on the notice (s 11(3)).

Key Term: Fairness test (CRA)
Under CRA 2015, a term or consumer 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 (s 62). Unfair terms/notices are not binding.

• UCTA 1977: This applies mainly to business occupiers dealing with other businesses or non-consumers. Under UCTA s 2(1), a business occupier cannot exclude or restrict liability for death or personal injury resulting from negligence (which includes breach of the common duty of care). For other types of damage (e.g., property damage), liability can only be excluded or restricted if the term or notice satisfies the reasonableness test (UCTA s 2(2) and s 11). Reasonableness is assessed by reference to factors including the parties’ bargaining strength, availability of alternatives, practicability of obtaining insurance, and whether the term was brought fairly and prominently to the attention of the other party. Judicial discussions in Smith v Eric S Bush and Harris v Wyre Forest DC (in the valuation context) illustrate the approach to reasonableness and prominence.
• CRA 2015: This applies where the occupier is a “trader” and the visitor is a “consumer.” Under CRA s 65(1), a trader cannot exclude or restrict liability for death or personal injury resulting from negligence. For other damage, any attempt to exclude or restrict liability is subject to the fairness test (CRA s 62). The CRA applies to “consumer notices” as well as contract terms: a notice is widely defined and includes signage and announcements addressed to consumers, whether or not incorporated into a contract.

Private occupiers (e.g., householders) are generally not subject to UCTA or CRA and have greater freedom to exclude liability, provided clear and sufficiently prominent steps are taken to bring the exclusion to the visitor’s attention. However, the line between private and business/trader use may be fact-specific (e.g., running events or charging admission may indicate business/trader status).

Effective exclusion requires clarity and prominence. A term or notice must be comprehensible, unambiguous, and drawn to the attention of the visitor before or at the time of entry/use. In addition, where the CRA applies, transparency and prominence are important to any fairness assessment.

Worked Example 1.2

A privately-owned stately home opens its gardens to the public a few weekends a year without charge, as part of a local tradition. At the entrance, a large sign states: “Visitors enter at their own risk. The owners accept no liability for any injury or damage howsoever caused.” A visitor trips on an uneven, historic stone step and suffers a broken wrist. Is the exclusion likely to be effective?

Answer:
If the owners are not acting in the course of business and are not “traders” dealing with consumers, UCTA and CRA controls are unlikely to apply. At common law, a clear exclusion can be effective, provided it is brought to the visitor’s attention before entry and unequivocally covers negligence. The wording here is wide and prominent. The owners may be able to rely on the exclusion in principle. If, however, they were charging admission or running the opening as part of a commercial enterprise, UCTA/CRA would very likely apply; any attempt to exclude liability for personal injury would be void.

Worked Example 1.3

A commercial car park displays large signs at every entrance and at payment machines stating: “Management accepts no liability for loss or damage to vehicles or contents however caused.” A customer’s car is damaged when a section of the car park’s wall collapses due to negligent maintenance. The customer sues for property damage. Can the operator rely on the exclusion?

Answer:
This is a business occupier engaging with a non-consumer or possibly a consumer. The exclusion of personal injury would be void. In respect of damage to property, UCTA s 2(2) permits exclusion only if reasonable. The factors include prominence of the notice, the operator’s ability to insure the risk, and the relative bargaining position. Clear and prominent signage is a starting point, but not conclusive. The collapse of a structure under control of the occupier points to a non-delegable responsibility and easy insurability. It is unlikely to be reasonable to allow the operator to exclude liability in these circumstances.

Exam Warning

Do not confuse a warning notice intended to discharge the duty of care (s 2(4)(a) OLA 1957) with a notice intended to exclude liability (s 2(1) OLA 1957). A warning aims to make the visitor safe; an exclusion notice aims to remove liability even if the visitor is injured due to the occupier's breach. The validity of exclusion notices is subject to UCTA/CRA.

Defences to Claims by Non-Visitors (OLA 1984)

The OLA 1984 governs the duty owed to persons other than visitors, primarily trespassers. If the conditions for owing a duty under s 1(3) are met and that duty is breached, the occupier may still rely on certain defences.

The duty is narrower than under the 1957 Act. It arises only if the occupier knows or has reasonable grounds to believe the danger exists; knows or has reasonable grounds to believe that the trespasser is in the vicinity of the danger; and the risk is one against which, in all the circumstances, the occupier may reasonably be expected to offer some protection. The injury must be due to the “state of the premises” rather than the claimant’s activity (Tomlinson v Congleton BC [2004] 1 AC 46; Keown v Coventry Healthcare NHS Trust [2006] 1 WLR 953).

Consent (Volenti non fit injuria) (Non-Visitors)

Section 1(6) OLA 1984 expressly preserves the defence of volenti. If a trespasser appreciates the full nature and extent of the risk and willingly accepts it, the occupier will have a complete defence (Ratcliff v McConnell [1999] 1 WLR 670; a student climbing into a closed swimming pool at night and entering shallow water headfirst). This is more likely to apply where the risk is obvious, such as leaping into shallow or unknown water (Tomlinson). Courts will ask whether the risk arose from the claimant’s choice to engage in an obviously dangerous activity, rather than from the state of the premises.

Worked Example 1.4

Leo, aged 19, climbs over a high fence into a disused quarry late at night, ignoring several prominent 'Danger - Keep Out' signs. He knows the quarry contains deep water pools from local reputation. He jumps into a pool from a ledge and hits submerged rocks, suffering serious injury. The quarry owner was aware that people sometimes trespassed but considered the fence and signs sufficient deterrent. Can the owner rely on the defence of consent?

Answer:
Yes, it is highly likely the owner can rely on volenti. Leo is a trespasser who deliberately ignored clear warnings. He was aware of the general danger (deep water) and chose to jump in anyway, especially late at night. The court would likely find he willingly accepted the risk of hitting submerged objects, an obvious danger associated with jumping into unknown water.

Warnings (Non-Visitors)

Section 1(5) OLA 1984 states that the duty may be discharged by taking reasonable steps to give warning of the danger or discourage persons from incurring the risk. The standard required for warnings to trespassers is generally more limited than for visitors; a clear and suitably placed “Danger” or “Keep Out” sign may suffice for an adult trespasser concerning an obvious risk. Physical measures (fencing, barriers) may be appropriate, particularly where children are likely to trespass, but reasonableness is assessed in context—high fences, warning signs, and some deterrent measures will usually suffice for obvious natural features.

Contributory Negligence (Non-Visitors)

Although not explicitly mentioned in the 1984 Act, case law confirms that the Law Reform (Contributory Negligence) Act 1945 applies. If a trespasser fails to take reasonable care for their own safety, their damages can be reduced (Revill v Newbery [1996] QB 567). That case also demonstrates that criminality does not automatically bar recovery; the ex turpi (illegality) defence is not lightly applied in negligence unless the injury is inextricably linked to the illegality and public policy requires disallowing the claim.

Exclusion of Liability

The OLA 1984 is silent on whether an occupier can exclude the duty owed to trespassers. There is no definitive appellate authority, and academic opinion is divided. Given that the 1984 Act imposes a basic level of duty for humanitarian reasons, it is arguable that excluding this limited duty might be contrary to public policy, but the position remains uncertain. Practically, many occupiers use signage that functions as warnings and discouragement (which may discharge the duty under s 1(5)) rather than attempting a formal exclusion. UCTA and CRA will rarely assist because a trespasser is unlikely to be a “customer” or “consumer,” so statutory fairness/ reasonableness controls would not usually apply in this context.

Worked Example 1.5

An electricity sub-station is enclosed by a two-metre fence with prominent “Danger—High Voltage—Keep Out” signs. Teenagers scale the fence to retrieve a football and one is electrocuted. The authority operating the sub-station had received occasional reports of trespass. Would a defence succeed?

Answer:
The authority is likely to succeed by showing it took reasonable steps to warn and to discourage trespass (s 1(5)): the danger is obvious, signage is prominent, and there is a substantial fence. The claimant’s own conduct may also lead to a significant reduction for contributory negligence. Volenti may apply if the claimant appreciated and chose to run an obvious risk. Much turns on the precise facts, including the clarity and positioning of warnings and the foreseeability of child trespass.

Additional Applications and Nuances

Children, obvious dangers, and warnings

For visitors, s 2(3)(a) OLA 1957 requires occupiers to be prepared for children to be less careful than adults. The younger the child, the greater the degree of precaution that may be reasonable—particularly where alluring hazards are concerned (e.g., derelict boats or construction sites: Jolley v Sutton LBC [2000] 1 WLR 1082). In contrast, for older children, obvious dangers (railway lines, open water) will often require no more than clear warnings and reasonable measures to prevent access (Titchener v BRB [1983] 1 WLR 1427; Bourne Leisure v Marsdon [2009] EWCA Civ 671).

For trespassers, the 1984 Act demands reasonableness in all the circumstances and recognises that the duty is limited. The burden on occupiers is heavier where they know children frequent the area and are at risk; reasonable protection might require more than signage alone—but not an absolute guarantee of safety.

Skilled visitors and warnings

Under s 2(3)(b) OLA 1957, occupiers can expect persons exercising a trade to appreciate and guard against special risks ordinarily incident to it. Appropriate warnings may suffice for such professionals—particularly where the risk relates to their skill (Roles v Nathan). This does not give occupiers carte blanche to be negligent; it moderates the content of the duty and informs whether a warning was “enough to make the visitor reasonably safe.”

The Compensation Act 2006 and desirable activities

When assessing breach (and whether a warning was sufficient), courts may consider whether imposing an onerous standard would discourage socially valuable activities (Compensation Act 2006, s 1). While this does not change the standard of care, it can shape the assessment of what reasonable steps consisted of in the circumstances. It does not protect against negligence where straightforward, low-cost precautions were omitted.

Worked Example 1.6

A coastal path features a sloping, algae-covered rock outcrop used by visitors to sit and watch the sea. An adult visitor slips on the obviously slick surface and suffers injury. There are no warning signs. Can the occupier rely on the obvious nature of the risk?

Answer:
Likely yes. For an adult visitor, the risk of slipping on obvious, naturally slippery rocks at the coast is apparent. There is generally no duty to warn of obvious risks. The occupier could argue there was no breach (not a defence strictly, but a failure of the claimant to establish breach), as in Staples v West Dorset DC. If a particular latent hazard existed (e.g., concealed drop), the absence of a warning might be problematic (English Heritage v Taylor).

Summary of Defences

Key Point Checklist

This article has covered the following key knowledge points:

• Occupiers may rely on the general defences of consent (volenti non fit injuria) and contributory negligence against claims under both the OLA 1957 and the OLA 1984.
• Consent requires the claimant to have full knowledge of the risk and to have voluntarily accepted it. It is a complete defence but difficult to establish, especially against employees or rescuers, and is unavailable by statute in certain road traffic contexts.
• Contributory negligence applies where the claimant’s carelessness contributes to their injury, resulting in a reduction in damages. The standard is adjusted for children and skilled visitors.
• Warnings can discharge the occupier's duty under both Acts if they are adequate for the circumstances (s 2(4)(a) 1957 Act; s 1(5) 1984 Act). There is no general duty to warn of obvious dangers to adults; latent hazards are different.
• Occupiers can exclude liability to visitors under the 1957 Act (s 2(1)), but this is heavily restricted by UCTA 1977 and CRA 2015, especially regarding death and personal injury caused by negligence. Clarity, prominence, and statutory controls are critical.
• It is uncertain whether liability to trespassers under the 1984 Act can be excluded; warnings and discouragement are the usual route to discharging the duty.
• The Compensation Act 2006 allows courts to consider the effect of precautions on desirable activities when judging breach and the adequacy of warnings; it does not lower the standard of care where reasonable steps could have been taken.

Key Terms and Concepts

• Volenti non fit injuria
• Contributory negligence
• Reasonableness test (UCTA)
• Fairness test (CRA)