Occupiers' liability - Duty owed to trespassers

Learning Outcomes

This article explores the duty of care owed by occupiers to individuals other than lawful visitors, primarily trespassers, under the Occupiers' Liability Act 1984. It explains the statutory preconditions for a duty to arise under s 1(3), the limited nature and scope of that duty under s 1(4), and the restriction of liability to personal injury. It analyses how the courts distinguish dangers arising from the state of the premises from risks created by the claimant’s own activities, and how this distinction controls the boundaries of liability. It reviews the range of measures occupiers may use to discharge or limit their duty, including warnings, physical deterrence and reliance on defences such as volenti, contributory negligence and, in some cases, exclusion of liability. It examines how judicial reasoning balances factors such as the obviousness and seriousness of the risk, the type of trespasser (adult thrill‑seeker versus child), patterns of trespass, and the cost and practicality of precautions. It applies these principles to SQE1-style problem scenarios, highlighting when no duty arises at all and when, despite a duty, policy considerations lead courts to deny recovery.

SQE1 Syllabus

For SQE1, you are required to understand the principles governing occupiers' liability towards non-visitors under the Occupiers’ Liability Act 1984 (OLA 1984), to distinguish this duty from the duty owed to lawful visitors under the OLA 1957, and to apply the specific conditions and scope of the 1984 Act to factual scenarios, with a focus on the following syllabus points:

• The definition of an occupier and premises (as under OLA 1957).
• The definition of a trespasser (non-visitor).
• The specific conditions under s 1(3) OLA 1984 for a duty to arise.
• The nature and scope of the duty owed under s 1(4) OLA 1984 (personal injury only).
• How an occupier might discharge the duty, including the use of warnings (s 1(5) OLA 1984).
• Relevant defences, particularly consent (volenti) (s 1(6) OLA 1984) and contributory negligence.
• The limitations on excluding liability under the OLA 1984.
• The distinction between dangers due to the state of the premises and risks caused by the entrant’s activities.
• How courts assess “reasonable expectation of protection” under s 1(3)(c), including obviousness of risk, type of trespasser, and cost/practicality of precautions.
• The position of users of highways and rights of way who are outside the statutory framework.

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 the Occupiers' Liability Act 1984, for which type of damage can a trespasser claim?
   1. Damage to personal property only.
   2. Personal injury only.
   3. Both personal injury and damage to property.
   4. Pure economic loss only.
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? (Select all that apply)
   1. The occupier must be aware of the danger.
   2. The occupier must know the trespasser is in the vicinity of the danger.
   3. The risk must be one against which the occupier might reasonably be expected to offer some protection.
   4. The trespasser must be a child.

3. True or false? An occupier can discharge their duty under the OLA 1984 simply by putting up a general warning sign like 'Danger'.

Introduction

While the Occupiers' Liability Act 1957 (OLA 1957) outlines the duty owed by occupiers to lawful visitors, a separate framework governs the duty owed to those entering premises without permission. These individuals, commonly referred to as trespassers, were historically afforded minimal protection at common law. The Occupiers' Liability Act 1984 (OLA 1984) was enacted to provide a limited duty of care towards such non-visitors in specific circumstances, primarily concerning personal injury resulting from the state of the premises. Understanding the scope and limitations of this duty is essential for advising clients and assessing liability in SQE1 scenarios.

Key Term: Trespasser
A person who goes onto land without any invitation or permission, whose presence is either unknown to the occupier or, if known, is objected to. This includes individuals who may have initially entered as visitors but then exceeded the scope of their permission.

OCCUPIERS' LIABILITY ACT 1984

The OLA 1984 establishes a framework for determining when an occupier owes a duty of care to persons other than lawful visitors, primarily concerning personal injury. It does not cover liability for damage to property belonging to trespassers.

Key Term: Occupiers' Liability Act 1984
Statute governing the duty of care owed by occupiers to persons other than lawful visitors (eg trespassers) in respect of personal injury caused by dangers relating to the state of the premises.

Who is an occupier and what are premises?

The definitions of 'occupier' (a person with sufficient control over the premises) and 'premises' (including land, buildings, and fixed or moveable structures) under the OLA 1984 are the same as those under the OLA 1957. An occupier is someone exercising control over the premises, and there can be more than one occupier simultaneously.

Key Term: Occupier
A person who has a sufficient degree of control over premises to justify imposing a duty of care towards those who come onto the premises.

Key Term: Premises
Includes land and buildings, as well as fixed or movable structures such as vessels, vehicles, or aircraft (s 1(2) OLA 1984 referring to s 1(3)(a) OLA 1957).

It is common in practice for control to be shared: for example, a landowner and a contractor may both be occupiers where each has sufficient control over different aspects of the site. The wide definition of “premises” means features such as ladders, fires escapes, embankments, and even inflatable structures can fall within the scope of the Acts.

When does a duty arise? (s 1(3) OLA 1984)

Unlike the automatic common duty of care owed to visitors under the OLA 1957, a duty under the OLA 1984 only arises if all three of the following conditions, set out in section 1(3), are met:

1. Awareness of the danger: The occupier is aware of the danger or has reasonable grounds to believe it exists. This is a subjective test based on the occupier's actual or imputed knowledge.
2. Knowledge of the trespasser's presence: The occupier knows or has reasonable grounds to believe that the non-visitor is in the vicinity of the danger concerned or that they may come into the vicinity of the danger. Again, this relates to the occupier's knowledge.
3. Reasonable expectation of protection: The risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer the non-visitor some protection. This is an objective test, balancing factors like the nature of the premises, the degree of risk, the practicality of precautions, and the potential nature of the trespasser (e.g., child vs. adult).

If any one of these conditions is not met, no duty of care is owed to the trespasser under the Act.

These statutory conditions are the gateway to liability. Courts look for evidence that the occupier had knowledge of the danger and facts indicating trespassers were, or were likely to be, in proximity to the danger. For example, occasional trespassers in summer may be within contemplation, whereas midnight swimming in midwinter may not be (Donoghue v Folkestone Properties). Similarly, the occupier’s lack of knowledge of a hidden hazard (such as a submerged container in a lake) can defeat the first condition (Rhind v Astbury Water Park Ltd).

The third condition is often determinative. It asks, in all the circumstances, whether some protection is reasonably to be expected. This involves weighing:

• The obviousness of the risk. Obvious shallow water and the known risks of headfirst entry reduce the expectation that occupiers must guard against such risks.
• The seriousness and likelihood of injury. Higher likelihood or severity may justify precautions even where risks are natural.
• The type of trespasser. Young children may require a greater level of protection than adults engaging in thrill-seeking.
• The practicality and cost of precautions. Reasonable steps are required; physically fencing a large natural feature might be impracticable, whereas targeted signage or barriers at specific danger points may be reasonable.

Key Term: State of the premises
Dangers arising from the physical condition or features of the land or structures on it, as opposed to risks created solely by the entrant’s activities.

This “state of the premises” focus is essential. If the injury is due to what the trespasser did (for instance, headfirst entry into shallow water) rather than a defect or hidden danger in the premises, the claim will generally fail on scope even if s 1(3) conditions are satisfied.

The Nature of the Duty (s 1(4) OLA 1984)

If the three conditions in section 1(3) are satisfied, section 1(4) states that the duty owed is 'to take such care as is reasonable in all the circumstances of the case to see that [the non-visitor] does not suffer injury on the premises by reason of the danger concerned'.

Key points about this duty:

• Standard of Care: The standard is 'reasonable care in all the circumstances'. This is generally a lower standard than the common duty of care owed to visitors, reflecting the fact that the entrant is present without permission. What is 'reasonable' depends on the specific facts.
• Scope: The duty relates only to personal injury (including death), not damage to property (s 1(8) OLA 1984).
• Source of Danger: The duty relates to dangers due to the state of the premises or things done or omitted to be done on them, not to dangers arising from the trespasser's own activities (Tomlinson v Congleton BC).

Tomlinson is the leading modern authority on both s 1(3)(c) and s 1(4). The House of Lords stressed that occupiers are not required to make natural features of land entirely risk-free or prevent adults from undertaking obvious risky activities. An occupier’s duty is not a duty to prevent all accidents; it is to take reasonable steps to reduce risks posed by the state of the premises.

Discharging the Duty (s 1(5) OLA 1984)

An occupier may be able to discharge the duty owed under the OLA 1984 by taking reasonable steps to give warning of the danger concerned or to discourage persons from incurring the risk (s 1(5)).

• Warnings: The effectiveness of a warning will depend on the circumstances. A simple sign may be sufficient for an adult trespasser regarding an obvious danger, but might be inadequate for a child or for a hidden danger. The warning must be clear enough to alert the trespasser to the specific risk.
• Discouragement: This could involve physical barriers like fences or locked gates. The adequacy of such measures depends on the nature of the risk and the type of trespasser anticipated.

Key Term: Warning
A step taken to alert entrants to the presence and nature of a danger so they can avoid or reduce the risk; under s 1(5), a warning that is reasonable in the circumstances may discharge the duty.

A targeted sign explaining, for example, “Hidden drop—No entry beyond barrier” will usually be more effective than a generic “Danger” notice. Where children are anticipated, reliance on a sign alone may be insufficient; deterrence may require physical measures that make access difficult.

Key Term: Volenti (consent)
A complete defence where the claimant knowingly and willingly assumes the specific risk that materialises.

Volenti under s 1(6) preserves the common law defence of voluntary assumption of risk. It may overlap with s 1(5): a clear warning makes it easier for an occupier to argue that a trespasser understood and accepted the risk.

Worked Example 1.1

A disused quarry owned by Quarry Ltd has steep cliffs and deep water. Quarry Ltd is aware that local teenagers sometimes ignore 'No Entry' signs and swim there in summer. One evening, Maya (17) climbs the fence and jumps into the water from a cliff, hitting submerged rocks hidden below the surface. Quarry Ltd knew the rocks were there but had taken no steps beyond the signs. Is Quarry Ltd likely to owe Maya a duty under the OLA 1984?

Answer:
Quarry Ltd likely owes a duty. (a) They are aware of the danger (submerged rocks). (b) They have reasonable grounds to believe trespassers (teenagers) may come into the vicinity of the danger (the quarry water near the cliffs). (c) Given the known danger (hidden rocks) and known trespassers (teenagers, who might be less cautious), it may be reasonable to expect Quarry Ltd to offer some protection beyond standard 'No Entry' signs, perhaps specific warnings about submerged rocks or better fencing near dangerous areas. Therefore, a duty under s 1(3) likely arises. Whether it was breached depends on if the existing signs were sufficient warning in the circumstances.

Worked Example 1.2

Farmer Giles owns fields containing an old, derelict barn with a rotten roof. He knows local children sometimes play there despite 'Keep Out' signs. Leo (10) climbs onto the barn roof, which collapses, causing him serious injury. Farmer Giles argues Leo consented to the risk. Is this defence likely to succeed?

Answer:
Unlikely. While Leo trespassed, it is difficult to argue a 10-year-old fully appreciated and voluntarily accepted the specific risk of a roof collapse (as required for volenti). The court would assess Leo's understanding based on his age. Contributory negligence is a more likely defence, potentially reducing damages based on what level of care is reasonable for a 10-year-old.

Worked Example 1.3

A coastal landowner maintains a slipway. In midwinter, Evan dives off the slipway into the sea at night and is injured when he strikes a submerged obstruction. The landowner knows that in summer people sometimes swim nearby, but has no prior history of winter swimming. Is a duty likely to arise under s 1(3)?

Answer:
Unlikely. The occupier may be aware of general swimming activity in summer, but not of winter night-time headfirst entry. Without reasonable grounds to believe trespassers would come into the vicinity of the danger at that time, s 1(3)(b) is not satisfied. In addition, the risk largely arose from Evan’s own activity (headfirst entry into unknown shallow water at night), rather than a hidden defect known to the occupier.

Worked Example 1.4

A hospital owns a building with an external fire escape. The structure is sound. A child trespasser climbs the fire escape to play and falls due to misjudging his movements. The child’s parents claim the fire escape was dangerous. Does the hospital owe a duty?

Answer:
Probably not. Where the danger arises from the manner in which the child used a non-dangerous feature (climbing it to play), the injury is due to the child’s activity rather than the state of the premises. The s 1(4) duty targets hazards due to the premises’ condition; a properly maintained fire escape is not a hidden danger merely because it can be misused.

Defences

Even if a duty is owed and breached, the occupier may have defences.

• Consent / Volenti Non Fit Injuria (s 1(6) OLA 1984): The Act explicitly preserves the defence of volenti non fit injuria (voluntary assumption of risk). If a trespasser fully understands and willingly accepts the specific risk which causes their injury, the occupier may have a complete defence. This was successfully argued in Ratcliff v McConnell where a student trespassing in a closed swimming pool at night was injured jumping into the shallow end.
• Contributory Negligence: The Law Reform (Contributory Negligence) Act 1945 applies. If the trespasser failed to take reasonable care for their own safety, and this contributed to their injuries, their damages may be reduced.

Key Term: Contributory negligence
A partial defence reducing damages to reflect the claimant’s share of responsibility for their injuries.

• Exclusion of Liability: The OLA 1984 is silent on exclusion clauses. Unlike the OLA 1957 (where exclusions are subject to UCTA 1977 and CRA 2015), those statutory controls do not generally apply in favour of trespassers. Many commentators and decisions treat the statutory duty under the 1984 Act as capable of exclusion or limitation in principle; otherwise trespassers would be in a better position than visitors. However, any purported exclusion must be reasonable in the circumstances, clearly brought to the entrant’s attention before encountering the risk, and cannot undermine other duties (such as duties owed to employees or lawful visitors). The legal position remains uncertain and fact-specific.

Key Term: Exclusion of liability
A notice or term by which an occupier seeks to restrict or avoid liability; effectiveness depends on adequate notice and, for visitors, statutory controls; for trespassers, the 1984 Act is silent and courts assess reasonableness case by case.

Additional points:

• Illegality (ex turpi causa): Separate from occupiers’ liability, the common law defence may arise in exceptional cases where a claimant’s criminal conduct is closely connected to the injury. Courts treat this defence cautiously and often prefer contributory negligence to avoid denying a remedy altogether. Its availability depends on the nexus between the illegal activity and the harm suffered.

Worked Example 1.5

A local authority manages a park with a lake. It places multiple signs stating “Danger—No swimming or headfirst entry. Shallow water.” Despite this, Alex ignores the signs, runs into the lake, and dives, sustaining a serious spinal injury. The council admits it knew people occasionally swam but had erected signs and patrolled during peak times. Is the council liable?

Answer:
Likely no liability. The risk arose from Alex’s own activity (headfirst entry into shallow water), which is an obvious danger. S 1(3)(c) is unlikely to require further protection in these circumstances, and the council’s targeted warnings are reasonable steps under s 1(5). Volenti may also be arguable given the clear warning and obviousness of the risk.

Practical Factors Courts Consider Under OLA 1984

Courts repeatedly emphasise that the 1984 Act is not designed to impose a counsel of perfection. Reasonableness is assessed in context:

• Obvious dangers: Natural features like cliffs, rivers, and shallow lakes present risks which adult trespassers are expected to appreciate.
• Hidden dangers: Submerged hazards, concealed drops, fragile roofs, or disguised defects warrant targeted warnings or barriers if trespass is foreseeable.
• Children: Anticipated child trespassers may require greater precautions; signs may be ineffective for very young children, and physical deterrents may be appropriate.
• Knowledge and foreseeability: A history of trespass in proximity to the danger strengthens the case for precautions; isolated or seasonal use may affect what is reasonable.
• Cost and practicality: Measures must be proportionate. Expensive works to neutralise obvious, low-likelihood risks are not usually required; practical steps such as more specific signage or strengthening fences at known hotspots may suffice.
• Desirable activities: Consideration may be given to whether imposing further precautions would unduly deter desirable activities on the land, though this cannot trump safety where hidden hazards exist.

Key Term: Warning
Under s 1(5), a reasonable warning may discharge the duty. It must be sufficiently clear and proximate to the danger; generic or poorly located notices will be less effective, particularly for children.

Intersections with Visitors and Highways

Not every non-visitor is a trespasser within the meaning of the 1984 Act. Persons using a public right of way (eg a highway maintained at public expense) fall outside both Acts and look to the Highways Act or common law for protection. By contrast, those exercising certain access rights under countryside legislation may be treated as non-visitors with a limited duty owed under the 1984 Act. Always identify the entrant’s legal status: visitor, non-visitor within the Act, or user of a public highway.

Exam Warning

Do not confuse the duty owed under OLA 1984 with the common duty of care under OLA 1957. The 1984 Act duty is more limited: it arises only if the s 1(3) conditions are met, it only covers personal injury, and the standard of 'reasonable care in the circumstances' is generally lower. Always identify the claimant's status (visitor or non-visitor) first.

A second common error is to lose sight of scope. The 1984 duty addresses dangers due to the state of the premises; if the injury arises primarily because of the trespasser’s own risky activity on otherwise non-dangerous premises, liability will not follow.

Key Point Checklist

This article has covered the following key knowledge points:

• The Occupiers' Liability Act 1984 governs the duty owed by occupiers to non-visitors (including trespassers) regarding personal injury.
• The duty under OLA 1984 is not automatic; it arises only if the conditions in s 1(3) are met (occupier's knowledge of danger, occupier's knowledge of trespasser's presence, reasonable expectation of protection).
• If a duty arises, the occupier must take such care as is reasonable in the circumstances to see the non-visitor is not injured by the danger (s 1(4)). This duty does not extend to property damage.
• The duty relates to dangers due to the state of the premises, not the trespasser's own risky activities.
• An occupier can potentially discharge the duty through adequate warnings or discouragement (s 1(5)).
• The defence of consent (volenti) is preserved by s 1(6) OLA 1984.
• Contributory negligence can reduce a trespasser's damages.
• The ability to exclude liability under the OLA 1984 is legally uncertain; any purported exclusion must be reasonable and clearly brought to attention.
• Courts weigh obviousness of risk, knowledge of trespass, the type of trespasser (adult/child), and the practicality/cost of precautions when deciding what is reasonable.
• Users of public highways are outside the scope of both Occupiers’ Liability Acts and are protected by different legal regimes.

Key Terms and Concepts

• Trespasser
• Occupiers' Liability Act 1984
• Occupier
• Premises
• State of the premises
• Warning
• Volenti (consent)
• Contributory negligence
• Exclusion of liability