Occupiers' liability: the duty to lawful visitors under the Occupiers' Liability Act 1957 and the duty to trespassers under the Occupiers' Liability Act 1984.

What this dot point is asking

OCR Component 2 Section B requires you to know occupiers' liability: when the occupier of premises is liable for injury caused by the state of the premises. There are two statutes: the Occupiers' Liability Act 1957 (duty to lawful visitors) and the Occupiers' Liability Act 1984 (duty to trespassers). The skill is to identify the claimant's status and apply the right Act for AO2.

The answer

The occupier and lawful visitors (1957 Act)

The 1957 Act contains special rules:

• Children (s2(3)(a)). An occupier must be prepared for children to be less careful than adults, so premises must be reasonably safe for a child of that age; an allurement (something tempting and dangerous) increases the duty (Glasgow Corporation v Taylor, poisonous berries).
• Tradespeople (s2(3)(b)). A person exercising a trade should guard against risks of their calling (Roles v Nathan, chimney sweeps and carbon monoxide).
• Warnings (s2(4)(a)). A sufficient warning discharges the duty if it makes the visitor reasonably safe.
• Independent contractors (s2(4)(b)). The occupier is not liable for a contractor's bad work if it was reasonable to entrust the work to a contractor and the occupier checked it was competently done (Haseldine v Daw; contrast Woodward v Mayor of Hastings).

Trespassers (1984 Act)

The Occupiers' Liability Act 1984 imposes a more limited duty to trespassers (and other non-visitors). Under s1(3) the duty arises only if:

1. the occupier is aware of the danger or ought to know of it;
2. the occupier knows or ought to know a trespasser may come into the vicinity of the danger; and
3. the risk is one against which, in all the circumstances, it is reasonable to offer some protection.

If the duty arises, s1(4) requires the occupier to take reasonable care to see that the trespasser is not injured by the danger. The duty may be discharged by a warning or by taking reasonable steps to deter (s1(5)). The courts are reluctant to impose liability for obvious risks, especially where the trespasser chose to take the risk (Tomlinson v Congleton, diving into a shallow lake; contrast British Railways Board v Herrington, a child on a railway line).

Examples in context

A strong answer never mixes the two Acts: it fixes each claimant's status first.

Try this

Q1. Explain the duty owed to trespassers under the Occupiers' Liability Act 1984. [12 marks]

• What the marker wants. Precise AO1: the duty arises only if the three s1(3) conditions are met (awareness of the danger, knowledge a trespasser may come into the vicinity, a risk it is reasonable to guard against), and is then to take reasonable care to prevent injury (s1(4)); obvious risks usually impose no duty (Tomlinson).

Q2. A child wanders into a building site through a gap in the fence and is injured by an attractive but dangerous machine. Advise on the occupier's liability. [20 marks]

• Cue. An AO2 application: if the child is a trespasser, apply the 1984 Act s1(3) conditions (knowledge of children entering, an allurement, a risk it is reasonable to guard against), drawing on the allurement principle (Glasgow Corporation v Taylor) and BRB v Herrington, and conclude on liability.