LAW OF TORT

TORTS AFFECTING LAND

OCCUPIERS’ LIABILITY

UNLAWFUL VISITORS AND THE OCCUPIERS’ LIABILITY ACT 1984 – SCOPE OF THE DUTY, EXCLUSION OF LIABILITY AND DEFENCES

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

INTRODUCTION

Who Are Unlawful Visitors?

• Unlawful visitors are persons who enter premises without permission.

• They are commonly known as trespassers.

• Historically, trespassers received very little protection under English law.

• The common law generally prioritised the rights of landowners.

Why Did The Law Change?

• The old law was viewed as harsh and unfair.

• Courts increasingly recognised that occupiers should sometimes owe duties even to trespassers.

• Pressure developed for reform.

• Parliament eventually introduced statutory protection.

HISTORICAL DEVELOPMENT

Traditional Common Law Position

General Rule

• Occupiers owed extremely limited duties to trespassers.

• Trespassers entered premises at their own risk.

Principle

• Landowners should generally be free from liability towards intruders.

Leading Case: Addie v Dumbreck

Facts

• Child trespassed onto land containing machinery.

• Child was killed.

Decision

• Occupier not liable.

Principle

• Occupier owed only duty not to deliberately or recklessly injure trespassers.

Significance

• Represented highly restrictive common law approach.

Change In Judicial Attitude

Leading Case: British Railways Board v Herrington

Facts

• Child entered railway line through damaged fence.

• Child seriously injured.

Decision

• Occupier liable.

Principle

• Occupier owed a duty of common humanity towards trespassers.

Significance

• Replaced harsh rule in Addie v Dumbreck.

• Paved way for statutory reform.

OCCUPIERS’ LIABILITY ACT 1984

Purpose Of The Act

Main Objective

• To provide protection for persons other than lawful visitors.

Effect

• Creates a statutory duty owed to trespassers and other unlawful visitors.

Scope

• Applies where the Occupiers’ Liability Act 1957 does not apply.

Who Is Protected?

Section 1(1)

Persons other than lawful visitors.

Examples

• Trespassers.

• Burglars.

• Persons exceeding permission granted.

• Individuals entering prohibited areas.

Relationship With The 1957 Act

Lawful Visitors

• Governed by Occupiers’ Liability Act 1957.

Unlawful Visitors

• Governed by Occupiers’ Liability Act 1984.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

WHEN DOES THE DUTY ARISE?

Section 1(3) Occupiers’ Liability Act 1984

Three Conditions Must Be Satisfied

REQUIREMENT 1

Occupier Must Be Aware Of The Danger

Section 1(3)(a)

Occupier:

• Knows of the danger.

or

• Has reasonable grounds to believe danger exists.

Meaning

• Actual knowledge sufficient.

• Constructive knowledge sufficient.

Constructive Knowledge

• Danger should reasonably have been known.

Examples

• Dangerous hole.

• Unsafe building.

• Exposed electrical equipment.

• Dangerous machinery.

REQUIREMENT 2

Occupier Must Know Or Have Reason To Believe Trespassers May Be Nearby

Section 1(3)(b)

Occupier:

• Knows trespassers may come into vicinity.

or

• Has reasonable grounds to believe this.

Importance

• Foreseeability of trespass is essential.

Leading Case: British Railways Board v Herrington

Principle

• Frequent child trespassing was foreseeable.

Significance

• Occupier knew children regularly entered area.

Examples

Likely Duty

• Frequently used shortcut.

• Gap in fence.

• Public regularly entering site.

Unlikely Duty

• Remote private land.

• No history of trespassing.

REQUIREMENT 3

Risk Must Be One Against Which Occupier May Reasonably Be Expected To Offer Protection

Section 1(3)(c)

Meaning

• Court considers overall circumstances.

Factors

• Seriousness of danger.

• Cost of precautions.

• Practicality of precautions.

• Nature of premises.

Importance

• Balances occupier interests and trespasser protection.

THE DUTY OWED

Section 1(4)

Nature Of Duty

Occupier must:

Take such care as is reasonable in all the circumstances.

Purpose

To see that trespasser:

Does not suffer injury because of the danger.

Important Difference From 1957 Act

1957 Act

• Visitor must be reasonably safe.

1984 Act

• Duty is narrower.

• Only reasonable protection against injury required.

Personal Injury

• Covered.

Death

• Covered.

Property Damage

Not Covered

• Occupiers’ Liability Act 1984 does not generally protect property.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

APPLICATION OF THE 1984 ACT

Leading Case: Revill v Newbery

Facts

• Elderly occupier confronted burglar.

• Occupier fired shotgun through shed door.

• Burglar injured.

Decision

• Burglar recovered damages.

Principle

• Trespassers still protected against unreasonable conduct.

Significance

• Demonstrates that even criminals may recover.

Leading Case: Ratcliff v McConnell

Facts

• Student trespassed into swimming pool area.

• Dived into shallow water.

• Serious injury suffered.

Decision

• Claim failed.

Principle

• Risk was obvious.

Significance

• Occupier not liable for obvious dangers voluntarily accepted.

Leading Case: Tomlinson v Congleton Borough Council

Facts

• Claimant ignored warning signs.

• Dived into lake.

• Suffered serious injury.

Decision

• Claim failed.

Principle

• Risk arose from claimant’s actions rather than state of premises.

Significance

• Leading modern authority.

WARNINGS

Section 1(5)

General Rule

Occupier may discharge duty by:

• Taking reasonable steps.

or

• Providing warnings.

Requirement

Warning Must Be Reasonable

• Warning must adequately protect against danger.

Examples

• Signs.

• Fences.

• Barriers.

• Notices.

Purpose

• Reduce risk of injury.

• Demonstrate reasonable precautions.

EXCLUSION OF LIABILITY

General Rule

Unlike the 1957 Act:

• The 1984 Act contains no specific provision regarding exclusion clauses.

Common Law Position

Occupier May Attempt To Exclude Liability

Through:

• Notices.

• Warning signs.

• Contractual provisions.

Practical Limitation

• Courts scrutinise attempts carefully.

• Reasonableness often important.

Relationship With Statute

Unfair Contract Terms Act 1977

May affect effectiveness of exclusion clauses in some situations.

DEFENCES

VOLENTI NON FIT INJURIA

Meaning

“To a willing person, no injury is done.”

Requirements

Knowledge Of Risk

• Claimant understood danger.

Voluntary Acceptance

• Claimant freely accepted risk.

Leading Case: Ratcliff v McConnell

Principle

• Voluntary acceptance defeated claim.

Effect

• Complete defence.

• Claim fails entirely.

CONTRIBUTORY NEGLIGENCE

Statutory Authority

Law Reform (Contributory Negligence) Act 1945

Definition

• Claimant contributes to own injury through failure to take reasonable care.

Effect

• Damages reduced.

• Reduction depends upon claimant’s share of responsibility.

Examples

• Ignoring warnings.

• Reckless behaviour.

• Entering obviously dangerous areas.

ILLEGALITY

Ex Turpi Causa Non Oritur Actio

Meaning

No action arises from a dishonourable cause.

General Principle

• Illegal conduct may reduce or defeat claims.

Leading Case: Revill v Newbery

Importance

• Illegality does not automatically prevent recovery.

Court Must Balance Circumstances

• Each case assessed individually.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

POLICY CONSIDERATIONS

Why Protect Trespassers?

Humanitarian Concerns

• Human life should be protected.

Fairness

• Some dangers extremely serious.

Social Responsibility

• Occupiers should act reasonably.

Why Restrict Liability?

Personal Responsibility

• Trespassers knowingly enter without permission.

Property Rights

• Occupiers should not face excessive burdens.

Economic Concerns

• Unlimited liability undesirable.

Floodgates

• Excessive litigation must be avoided.

COMPARISON: OLA 1957 VS OLA 1984

AO2 APPLICATION

Step 1

• Identify occupier.

Step 2

• Determine whether claimant is lawful or unlawful visitor.

Step 3

• Apply Section 1(3) requirements.

Step 4

• Determine whether statutory duty arises.

Step 5

• Assess reasonableness of precautions.

Step 6

• Consider warnings.

Step 7

• Consider defences.

Step 8

• Reach conclusion.

AO3 EVALUATION

Strengths Of The 1984 Act

Greater Fairness

• Protects vulnerable individuals.

Humanitarian Approach

• Recognises value of human life.

Flexible Standard

• Reasonableness allows justice.

Criticisms

Uncertainty

• Reasonableness difficult to predict.

Burden On Occupiers

• Some believe trespassers receive excessive protection.

Complex Distinctions

• Difference between lawful and unlawful visitors can create difficulties.

EXAM QUICK REVISION SHEET

Key Statute

• Occupiers’ Liability Act 1984

Section 1(3) Requirements

Occupier Knows Danger Exists

Occupier Knows Trespassers May Be Nearby

Protection Reasonably Expected

Duty

Section 1(4)

• Reasonable care to prevent injury.

Key Cases

• Addie v Dumbreck

• British Railways Board v Herrington

• Revill v Newbery

• Ratcliff v McConnell

• Tomlinson v Congleton Borough Council

Main Defences

• Volenti.

• Contributory Negligence.

• Illegality.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.