Occupiers' Liability Act 1984
Encyclopedia
The Occupiers' Liability Act 1984 (c. 3) is an Act
of the Parliament of the United Kingdom
that covers occupiers' liability for trespassers. In British Railways Board v Herrington 1972 AC 877, the House of Lords
had decided that occupiers owed a duty to trespassers, but the exact application of the decision was unclear. The matter was then referred to the Law Commission
for a report, and as a result the Occupiers' Liability Bill was introduced to Parliament by Lord Hailsham
on 23 June 1983. The Act was given the Royal Assent
on 13 March 1984 as the Occupiers' Liability Act 1984 and came into force on 13 May.
The Act extends the common duty of care to trespassers as well as visitors, providing that this duty is to be required when the occupier has actual or constructive knowledge that a danger exists and that a trespasser is or may be near it. Unlike the Occupiers' Liability Act 1957
, the 1984 Act only allows an injured trespasser to claim for death and personal injury, not for damage to personal property. The Act also makes amendments to the Unfair Contract Terms Act 1977
, with the stated intent of allowing additional educational and recreational use of land.
decided that a land owner could owe a duty to trespassers on his land, that duty being to avoid negligently injuring them. The application of this judgment was not certain (for example, whether or not actual knowledge of a trespasser was needed to create a duty), and it was referred to the Law Commission
by the Lord Chancellor
, Lord Hailsham
. In 1976, the Commission recommended the introduction of legislation that created a new duty of care to be owed to "uninvited visitors", something endorsed by the Pearson Commission
.
After accepting the recommendations, Lord Hailsham introduced the Occupiers' Liability Bill to the House of Lords
on 23 June 1983. The Bill was given the Royal Assent
on 13 March 1984, and came into law as the Occupiers' Liability Act 1984.
rejected this argument, saying that just because a defendant had tried to prevent people entering dangerous land did not mean that the "reasonable grounds to believe" have been satisfied. Under Section 1(2), the duty is owed when the occupier is the occupier of any fixed or moveable structure, including ships and aircraft; the same as in the 1957 Act.
Section 1(4) establishes the duty, which is the same as the "common duty of care" laid out in the Occupiers' Liability Act 1957
; that the occupier "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". If the duty of care is breached and the trespasser suffers injury, unlike the Occupiers' Liability Act 1957
, the 1984 Act only allows an injured trespasser to claim for death or personal injury, rather than damage to any personal property. The duty of care does not apply to those using a highway, thus preserving the criticised common law rule established in Greenhalgh v British Railways Board [1969] 2 QB 286.
, is covered in Section 1(6) of the Act, which provides that "no duty is owed ... to any person in respect of risks willingly accepted as his by that person". In Ratcliffe v McConnell [1999] the plaintiff, who was drunk, jumped into a swimming pool marked with warning signs, suffering serious injuries after hitting the bottom. The Court of Appeal held that, because of the circumstances (jumping into an obviously shallow pool with warning signs during the winter), the plaintiff should have known of the risk and, by acting, had accepted the risk. The Law Commission
had initially recommended that the Act contain provisions making it clear that a trespasser's awareness or acceptance of a warning sign was not conclusive evidence of acceptance of the risk, but this was not included.
is stated not to apply to the 1984 Act, only the common law rules and the 1957 Act, it would allow an occupier to completely exclude liability if true. A second view is that the duty of care cannot be excluded, since the stated aim of the Act was to uphold the common law principle of "duty of common humanity", which was unexcludeable because it was a minimum standard. The case of Baddeley v Earl Granville [1887] 19 QBD 423 implies that a statutory duty cannot be excluded, but there is no case law directly relating to the Act.
originally only allowed an occupier to exclude the common duty of care if the property is used for business purposes. Several organisations, including the National Farmers Union and the Country Land and Business Association
, argued that this was forcing landowners to exclude people completely for fear of being sued, thus hindering educational and recreational purposes as well as business ones. In response to this, Section 2 of the Act amends the 1977 Act to say that "breach of an obligation or duty towards a person obtaining access to the premises for recreational or educational purposes ... is not a business liability of the occupier unless granting that person such access for the purposes concerned falls within the business purposes of the occupier". This permits landowners to allow educational and recreational bodies access to their land without the risk of liability.
Acts of Parliament in the United Kingdom
An Act of Parliament in the United Kingdom is a type of legislation called primary legislation. These Acts are passed by the Parliament of the United Kingdom at Westminster, or by the Scottish Parliament at Edinburgh....
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
that covers occupiers' liability for trespassers. In British Railways Board v Herrington 1972 AC 877, the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
had decided that occupiers owed a duty to trespassers, but the exact application of the decision was unclear. The matter was then referred to the Law Commission
Law Commission (England and Wales)
In England and Wales the Law Commission is an independent body set up by Parliament by the Law Commissions Act 1965 in 1965 to keep the law of England and Wales under review and to recommend reforms. The organisation is headed by a Chairman and four Law Commissioners...
for a report, and as a result the Occupiers' Liability Bill was introduced to Parliament by Lord Hailsham
Quintin Hogg, Baron Hailsham of St Marylebone
For the businessman and philanthropist, see Quintin Hogg Quintin McGarel Hogg, Baron Hailsham of St Marylebone, KG, CH, PC, QC, FRS , formerly 2nd Viscount Hailsham , was a British politician who was known for the longevity of his career, the vigour with which he campaigned for the Conservative...
on 23 June 1983. The Act was given the Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
on 13 March 1984 as the Occupiers' Liability Act 1984 and came into force on 13 May.
The Act extends the common duty of care to trespassers as well as visitors, providing that this duty is to be required when the occupier has actual or constructive knowledge that a danger exists and that a trespasser is or may be near it. Unlike the Occupiers' Liability Act 1957
Occupiers' Liability Act 1957
The Occupiers' Liability Act 1957 is an Act of the Parliament of the United Kingdom that covers occupiers' liability. The result of the Third Report of the Law Reform Committee, the Act was introduced to Parliament as the Occupiers' Liability Bill and granted the Royal Assent on 6 June 1957,...
, the 1984 Act only allows an injured trespasser to claim for death and personal injury, not for damage to personal property. The Act also makes amendments to the Unfair Contract Terms Act 1977
Unfair Contract Terms Act 1977
The Unfair Contract Terms Act 1977 is an Act of Parliament of the United Kingdom which regulates contracts by restricting the operation and legality of some contract terms. It extends to nearly all forms of contract and one of its most important functions is limiting the applicability of...
, with the stated intent of allowing additional educational and recreational use of land.
Background
Originally, a trespasser on property had to prove that he was intentionally or recklessly injured, as in Addie v Dumbreck [1929] AC 358. This was seen as unfair, particularly in cases where the trespasser was a child or had only accidentally trespassed. In British Railways Board v Herrington [1972] AC 877, the House of LordsJudicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
decided that a land owner could owe a duty to trespassers on his land, that duty being to avoid negligently injuring them. The application of this judgment was not certain (for example, whether or not actual knowledge of a trespasser was needed to create a duty), and it was referred to the Law Commission
Law Commission (England and Wales)
In England and Wales the Law Commission is an independent body set up by Parliament by the Law Commissions Act 1965 in 1965 to keep the law of England and Wales under review and to recommend reforms. The organisation is headed by a Chairman and four Law Commissioners...
by the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
, Lord Hailsham
Quintin Hogg, Baron Hailsham of St Marylebone
For the businessman and philanthropist, see Quintin Hogg Quintin McGarel Hogg, Baron Hailsham of St Marylebone, KG, CH, PC, QC, FRS , formerly 2nd Viscount Hailsham , was a British politician who was known for the longevity of his career, the vigour with which he campaigned for the Conservative...
. In 1976, the Commission recommended the introduction of legislation that created a new duty of care to be owed to "uninvited visitors", something endorsed by the Pearson Commission
Pearson Commission
The Royal Commission on Civil Liability and Compensation for Personal Injury, better known as the Pearson commission was a United Kingdom royal commission, established in 1973 under the chairmanship of Lord Pearson...
.
After accepting the recommendations, Lord Hailsham introduced the Occupiers' Liability Bill to the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
on 23 June 1983. The Bill was given the Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
on 13 March 1984, and came into law as the Occupiers' Liability Act 1984.
Duty of care
Section 1 establishes the duty of care, which is owed to "persons other than [the occupier's] visitors", referring to trespassers. Under Section 1(3) of the Act, the duty is owed when the occupier is aware of the danger, or has reasonable grounds to believe it exist, knows or has reasonable grounds to believe that the trespasser is near or may come to be near the danger and the risk is one which an occupier may reasonably be expected to protect visitors from. This clause was first considered by the courts in White v The Council of the City and District of St. Albans [1990], where the claimant had taken a shortcut across the defendant's fenced-off land and fell into a trench. He argued that the defendant taking precautions to stop people getting into the dangerous area meant that he believed somebody was likely to do so, and was therefore liable. The Court of AppealCourt of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
rejected this argument, saying that just because a defendant had tried to prevent people entering dangerous land did not mean that the "reasonable grounds to believe" have been satisfied. Under Section 1(2), the duty is owed when the occupier is the occupier of any fixed or moveable structure, including ships and aircraft; the same as in the 1957 Act.
Section 1(4) establishes the duty, which is the same as the "common duty of care" laid out in the Occupiers' Liability Act 1957
Occupiers' Liability Act 1957
The Occupiers' Liability Act 1957 is an Act of the Parliament of the United Kingdom that covers occupiers' liability. The result of the Third Report of the Law Reform Committee, the Act was introduced to Parliament as the Occupiers' Liability Bill and granted the Royal Assent on 6 June 1957,...
; that the occupier "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". If the duty of care is breached and the trespasser suffers injury, unlike the Occupiers' Liability Act 1957
Occupiers' Liability Act 1957
The Occupiers' Liability Act 1957 is an Act of the Parliament of the United Kingdom that covers occupiers' liability. The result of the Third Report of the Law Reform Committee, the Act was introduced to Parliament as the Occupiers' Liability Bill and granted the Royal Assent on 6 June 1957,...
, the 1984 Act only allows an injured trespasser to claim for death or personal injury, rather than damage to any personal property. The duty of care does not apply to those using a highway, thus preserving the criticised common law rule established in Greenhalgh v British Railways Board [1969] 2 QB 286.
Acceptance of risks
The trespasser's acceptance of a risk, known as the defence of volenti non fit injuriaVolenti non fit injuria
Volenti non fit injuria is a common law doctrine which means that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they will not be able to bring a claim against the other party in tort or delict...
, is covered in Section 1(6) of the Act, which provides that "no duty is owed ... to any person in respect of risks willingly accepted as his by that person". In Ratcliffe v McConnell [1999] the plaintiff, who was drunk, jumped into a swimming pool marked with warning signs, suffering serious injuries after hitting the bottom. The Court of Appeal held that, because of the circumstances (jumping into an obviously shallow pool with warning signs during the winter), the plaintiff should have known of the risk and, by acting, had accepted the risk. The Law Commission
Law Commission (England and Wales)
In England and Wales the Law Commission is an independent body set up by Parliament by the Law Commissions Act 1965 in 1965 to keep the law of England and Wales under review and to recommend reforms. The organisation is headed by a Chairman and four Law Commissioners...
had initially recommended that the Act contain provisions making it clear that a trespasser's awareness or acceptance of a warning sign was not conclusive evidence of acceptance of the risk, but this was not included.
Warnings
Section 1(5) of the Act covers warnings. It states that the occupier discharges his duty "by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk". However, simply providing a warning sign is not enough; the sign must be clear enough to ensure that the risk is obvious to the trespasser. Whether or not the warning sign makes the risks obvious is dependant on the trespasser; warning notices are often considered inadequate for children, who may be either unable to read or unable to appreciate the danger.Exclusion of liability
The 1984 Act includes no statements in regards to whether duty can be excluded by the occupier. This is sometimes suggested to mean that it is possible, since there are no provisions forbidding it. This is taken to weaken the Act if true; since the Unfair Contract Terms Act 1977Unfair Contract Terms Act 1977
The Unfair Contract Terms Act 1977 is an Act of Parliament of the United Kingdom which regulates contracts by restricting the operation and legality of some contract terms. It extends to nearly all forms of contract and one of its most important functions is limiting the applicability of...
is stated not to apply to the 1984 Act, only the common law rules and the 1957 Act, it would allow an occupier to completely exclude liability if true. A second view is that the duty of care cannot be excluded, since the stated aim of the Act was to uphold the common law principle of "duty of common humanity", which was unexcludeable because it was a minimum standard. The case of Baddeley v Earl Granville [1887] 19 QBD 423 implies that a statutory duty cannot be excluded, but there is no case law directly relating to the Act.
Unfair Contract Terms Act 1977
The Unfair Contract Terms Act 1977Unfair Contract Terms Act 1977
The Unfair Contract Terms Act 1977 is an Act of Parliament of the United Kingdom which regulates contracts by restricting the operation and legality of some contract terms. It extends to nearly all forms of contract and one of its most important functions is limiting the applicability of...
originally only allowed an occupier to exclude the common duty of care if the property is used for business purposes. Several organisations, including the National Farmers Union and the Country Land and Business Association
Country Land and Business Association
The Country Land and Business Association is a voluntary organisation in the United Kingdom.-Membership:...
, argued that this was forcing landowners to exclude people completely for fear of being sued, thus hindering educational and recreational purposes as well as business ones. In response to this, Section 2 of the Act amends the 1977 Act to say that "breach of an obligation or duty towards a person obtaining access to the premises for recreational or educational purposes ... is not a business liability of the occupier unless granting that person such access for the purposes concerned falls within the business purposes of the occupier". This permits landowners to allow educational and recreational bodies access to their land without the risk of liability.