Occupiers' Liability: Trespassers (1984 Act)

The Occupiers' Liability Act 1984 governs the duty of care owed by occupiers to persons other than visitors — primarily trespassers, but also persons entering land under a right of way or a private right of way, and persons exercising access rights under the Countryside and Rights of Way Act 2000 (CROW Act). This lesson examines the conditions under which a duty arises, the nature of the duty, the special position of child trespassers, available defences, and the differences between the 1957 and 1984 Acts.

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Background: From Herrington to the 1984 Act

Before the 1984 Act, the common law position was that occupiers owed very little duty to trespassers. The traditional approach was harshly expressed by Lord Hailsham: a trespasser entered at their own risk.

This approach was softened by the House of Lords in British Railways Board v Herrington [1972].

British Railways Board v Herrington [1972]

Aspect	Detail
Facts	A 6-year-old boy was seriously injured when he trespassed onto an electrified railway line. The fence between the public path and the railway was broken and in disrepair, and children were known to play in the area.
Decision	The House of Lords held that the railway owed a duty of "common humanity" to the child trespasser. The occupier was liable because it knew of the danger, knew children trespassed, and had failed to repair the broken fence.
Significance	Established that occupiers do owe some duty to trespassers, particularly child trespassers. This decision led to the enactment of the Occupiers' Liability Act 1984.

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When Does a Duty Arise? Section 1(3)

The 1984 Act does not automatically impose a duty on occupiers towards all trespassers. A duty only arises when three conditions are met under s1(3):

Condition	Requirement
s1(3)(a)	The occupier is aware of the danger or has reasonable grounds to believe that it exists
s1(3)(b)	The occupier knows or has reasonable grounds to believe that the other person is in the vicinity of the danger or may come into the vicinity of it
s1(3)(c)	The risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer some protection

All three conditions must be satisfied before a duty arises.

flowchart TD
    A["Does the occupier owe<br/>a duty under the<br/>OLA 1984?"] --> B{"s1(3)(a):<br/>Is D aware of the<br/>danger or has<br/>reasonable grounds<br/>to believe it exists?"}
    B -- No --> Z["NO duty arises"]
    B -- Yes --> C{"s1(3)(b):<br/>Does D know or have<br/>reasonable grounds to<br/>believe C is (or may<br/>come) in the vicinity?"}
    C -- No --> Z
    C -- Yes --> D{"s1(3)(c):<br/>Is the risk one<br/>against which D may<br/>reasonably be expected<br/>to offer protection?"}
    D -- No --> Z
    D -- Yes --> E["DUTY ARISES<br/>under s1(4)"]

    style A fill:#1a5276,color:#fff
    style E fill:#27ae60,color:#fff
    style Z fill:#c0392b,color:#fff

Key Cases on Section 1(3)

Swain v Natui Ram Puri [1996] — The claimant was injured while trespassing on a roof. The Court of Appeal held that the occupier had no reason to believe that anyone would climb onto the roof. Condition s1(3)(b) was not satisfied, and no duty arose.

Donoghue v Folkestone Properties Ltd [2003] — The claimant dived off a slipway into a harbour at night during winter and struck his head on an underwater object. The court held that the occupier had no reason to believe that anyone would be swimming in the harbour at night in midwinter. Condition s1(3)(b) was not satisfied.

Ratcliff v McConnell [1999] — A student dived into a college swimming pool at night (the pool was closed and locked). The court held that even though the occupier was aware of the danger (shallow water) and knew students might be tempted to use the pool, the student had voluntarily assumed the risk (volenti non fit injuria) and the claim failed.

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The Nature of the Duty: Section 1(4)

Where a duty arises under s1(3), the duty under s1(4) 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:

• The duty is to take reasonable care — it is not an absolute duty
• The duty covers personal injury only — unlike the 1957 Act, the 1984 Act does not cover damage to property (s1(8))
• The occupier must act reasonably in the circumstances — what is reasonable will depend on factors such as the nature and seriousness of the danger, the cost and difficulty of precautions, and whether the trespasser is an adult or a child

Feature	OLA 1957 (Visitors)	OLA 1984 (Non-visitors)
Duty owed to	Lawful visitors	Trespassers and other non-visitors
Duty triggered	Automatically — by visitor status	Only if s1(3) conditions are met
Scope of duty	s2(2): reasonable care for visitor's safety	s1(4): reasonable care to prevent injury
Type of loss	Personal injury AND property damage	Personal injury ONLY
Warnings	s2(4)(a): must enable visitor to be safe	s1(5): may discharge the duty
Exclusion	Limited by UCTA 1977	s1(6)(c): duty may be excluded by taking "reasonable steps"

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Children as Trespassers

Children frequently trespass — they may wander onto railway lines, building sites, or other dangerous places. The courts recognise that child trespassers require particular consideration, and the s1(3) conditions are generally more easily satisfied where children are concerned.

Keown v Coventry Healthcare NHS Trust [2006]