What duty does an occupier of premises owe to lawful visitors and to trespassers?
Occupiers liability: the duty owed to lawful visitors under the Occupiers Liability Act 1957 (the common duty of care, children, skilled visitors and independent contractors) and the duty owed to trespassers under the Occupiers Liability Act 1984.
An Eduqas A-Level Law guide to occupiers liability. Explains the common duty of care to lawful visitors under the 1957 Act and the conditional duty to trespassers under the 1984 Act, with worked scenario answers and the AO2 application the paper rewards.
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What this dot point is asking
Eduqas tort requires you to know occupiers liability: the duty owed to lawful visitors under the Occupiers Liability Act 1957 (the common duty of care, and the special rules for children, skilled visitors and independent contractors) and the duty owed to trespassers under the Occupiers Liability Act 1984. The skill is to decide which Act applies and apply its rules to a scenario (AO2).
The answer
Who is an occupier and who is a visitor
The common duty of care to visitors (1957 Act)
The Occupiers Liability Act 1957 s2(2) imposes the common duty of care: to take such care as is reasonable to see that the visitor is reasonably safe in using the premises for the purposes for which they are invited or permitted to be there. The duty relates to the state of the premises, not necessarily to what the visitor chooses to do. A warning of a danger discharges the duty under s2(4)(a) if, in all the circumstances, it was enough to keep the visitor reasonably safe (Roles v Nathan).
The duty to trespassers (1984 Act)
The Occupiers Liability Act 1984 was passed after British Railways Board v Herrington recognised a limited "duty of common humanity" to trespassers. Under s1(3) a duty is owed only if: (a) the occupier is aware of the danger or has reasonable grounds to believe it exists; (b) the occupier knows or has reasonable grounds to believe the trespasser is or may come into the vicinity of the danger; and (c) the risk is one against which, in all the circumstances, it is reasonable to offer some protection. If a duty arises, it is to take reasonable care to see that the trespasser is not injured (s1(4)). The Act covers personal injury only (not property), the duty can be discharged by warnings or barriers (s1(5)), and there is no liability for obvious risks that an adult willingly accepts (Tomlinson v Congleton Borough Council, diving into a shallow lake).
Examples in context
A strong answer first classifies the entrant and then applies the correct statute.
Try this
Q1. Explain the common duty of care owed to lawful visitors under the Occupiers Liability Act 1957. [10 marks]
- What the marker wants. Precise AO1: the s2(2) duty to take reasonable care to keep the visitor reasonably safe for the purpose of the visit, the special rules for children (s2(3)(a)), skilled visitors (s2(3)(b)) and independent contractors (s2(4)(b)), and warnings under s2(4)(a).
Q2. A teenager climbs into a closed and fenced building site at night and is injured by an unguarded trench. Advise on the occupier's liability. [20 marks]
- Cue. An AO2 application: the teenager is a trespasser, so the 1984 Act applies; run the s1(3) conditions (was the occupier aware of the danger and that trespassers might enter the fenced site at night?); consider whether the fencing discharged the duty (s1(5)) and whether the risk was obvious (Tomlinson), then conclude.
Exam-style practice questions
Practice questions written in the style of WJEC Eduqas exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
Eduqas Component 2 2022 (scenario)20 marksA supermarket leaves a spillage on the floor without a warning sign. Ivan, a customer, slips and breaks his wrist. Separately, a child climbs over a low fence into the stockroom and is hurt by machinery. Advise on the supermarket's liability under the occupiers liability legislation. [a scenario in the style of Component 2; the real paper tariff is 25, here split between visitor and trespasser, AO1 and AO2]Show worked answer →
A mainly AO2 scenario splitting a lawful visitor from a trespasser.
Ivan (lawful visitor, 1957 Act). The supermarket is the occupier (Wheat v Lacon) and Ivan is a lawful visitor. It owes the common duty of care under s2(2): to keep him reasonably safe for the purpose of his visit. A spillage with no warning is a breach; a warning sign might have discharged the duty under s2(4)(a) if it made the visitor reasonably safe (Roles v Nathan). Ivan can claim for his injury.
The child (trespasser, 1984 Act). The child entering the stockroom is a trespasser, so the 1984 Act applies. A duty arises only if the occupier knows of the danger (the machinery), knows or has reasonable grounds to believe the trespasser may come into its vicinity, and the risk is one against which it is reasonable to offer protection (s1(3)). If a low fence made child entry foreseeable, a duty may arise (compare British Railways Board v Herrington; allurement to children); the occupier may discharge it by warnings or barriers (s1(5)). The 1984 Act covers personal injury only.
A top answer applies the correct Act to each claimant and runs the statutory conditions on the facts.
Eduqas Component 3 2021 (essay)20 marksAnalyse and evaluate the law on occupiers liability to trespassers. [an essay in the style of Component 3; the real paper tariff is 25, AO1 and AO3]Show worked answer →
A mainly AO3 essay. Explain the 1984 Act, then evaluate the balance it strikes.
The law. The Occupiers Liability Act 1984 followed British Railways Board v Herrington, which recognised a limited duty of common humanity to trespassers. The Act imposes a duty only where the three s1(3) conditions are met, and limits recovery to personal injury (not property).
Evaluation. Strengths: it protects vulnerable trespassers, especially children, while not making occupiers insurers; warnings and barriers can discharge the duty; and Tomlinson v Congleton confirms occupiers are not liable for obvious risks willingly run by adults, protecting freedom of action. Weaknesses: the conditions are uncertain (when does the occupier have reasonable grounds to believe?); the line between visitor and trespasser can be fine; and some think trespassers deserve less protection.
A top answer explains the conditional duty and evaluates the balance between protecting entrants and not over-burdening occupiers, then concludes.
Related dot points
- Liability in negligence: the duty of care (Donoghue v Stevenson and the Caparo test), breach of duty (the reasonable person and the risk factors), and damage (factual causation by the but for test and remoteness under The Wagon Mound).
An Eduqas A-Level Law guide to liability in negligence. Explains the duty of care, breach and the risk factors, and causation and remoteness of damage, with worked scenario answers and the AO2 application the paper rewards.
- Nuisance and the rule in Rylands v Fletcher: private nuisance (unlawful interference with the use and enjoyment of land, the factors and defences), public nuisance, and the rule in Rylands v Fletcher (a non-natural use, the escape of a dangerous thing and foreseeable damage).
An Eduqas A-Level Law guide to nuisance and the rule in Rylands v Fletcher. Explains private and public nuisance, the relevant factors and defences, and strict liability for an escape, with worked scenario answers and the AO2 application the paper rewards.
- Vicarious liability: the requirement of a relationship of employment (the tests for employee status), a tort committed by the employee, and that the tort was committed in the course of employment (the close connection test).
An Eduqas A-Level Law guide to vicarious liability. Explains the tests for employee status, the requirement of a tort, and the close connection test for the course of employment, with worked scenario answers and the AO2 application the paper rewards.
- Defences and remedies in tort: the defences of consent (volenti non fit injuria), contributory negligence and necessity, and the remedies of compensatory damages (special and general) and injunctions.
An Eduqas A-Level Law guide to the defences and remedies in tort. Explains consent, contributory negligence and necessity, and compensatory damages and injunctions, with worked scenario answers and the AO2 application the paper rewards.
- The scenario application question (AO2): the IRAC structure (issue, rule, application, conclusion), identifying the legal issues in a factual problem, applying authority to the facts, and reaching a reasoned conclusion.
An Eduqas A-Level Law guide to the scenario application question (AO2). Explains the IRAC structure, identifying the issues, applying the law to the facts and reaching a conclusion, with worked examples and the technique the Component 2 paper rewards.
Sources & how we know this
- Eduqas A Level Law (A150) specification — WJEC Eduqas (2017)