The Occupiers’ Liability Act 1984 (OLA 1984) was introduced, generally speaking, to confirm situations where a duty of care might be owed by an occupier to an ‘unauthorised visitor’ or ‘trespasser’ as they are commonly known. For example, a person making a delivery over a private right of way would not be deemed a lawful visitor as they are technically uninvited and as such would not be able to sue the owner of the land under the preceding Occupiers’ Liability Act 1957 if he tripped over a defective manhole cover and injured him or herself. 1 When we think of the legal world as it is today it is quite extraordinary that the delivery person would be left with no recourse to compensate them for their injuries by suing an occupier or land owner.
There were, of course, some exceptions to prove the rule as in Thomas v British Railways Board 2 , where the railway owed a duty of care to trespassers (and anyone else) who used a public footpath and subsequently walked through a broken stile into the path of a train. The duty was to essentially reduce or avert the danger i.e. mend the broken stile.
S1 (3) of the Occupiers’ Liability Act 1984 tests for whether a duty of care is owed to a trespasser by asking the following:
(a) he is aware of the danger or has reasonable grounds to believe that it exists;
(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and
(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
We can see that subsections (a) and (b) are subjective and note that a duty will be owed where an occupier is aware of a danger or even should be aware that there is a possible danger so that ignorance of the danger does not extinguish any duty as in Harris v Birkenhead Corporation. 3 Subsection (c) is much more objective.
In light of the above, it follows that an occupier who owns land that is fenced off for example, but knows that there is a hole in that fence with jagged edges that children often go through to play on the other side, would owe those children a duty of care. The occupier is both aware of the danger and that children are in the vicinity of that danger so if they were to injure themselves on the jagged edges then they would be able to sue the occupier. If the occupier is not aware of the hole in the fence and is equally unaware that children make use of it on a regular basis, then there would be no duty of care owed per White v St Albans City & District Council 4 .
Interestingly, where a drunken man makes off from a taxi without payment over council parkland, which is arguably open to the general public as licensees, and trips over a dangerously low chain fence, thus injuring himself has no action as he is not a ‘visitor’ by using the park for non-recreational purposes, whether lawful or not. 5
The scope of the duty owed to non-visitors under the 1984 Act is, understandably, not overly onerous (as it would be unreasonable to expect a land owner to account for every particular danger on his or her land). Under Section 1(4) OLA 1984 the duty is ‘to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned’. So each case will turn on its facts to determine what exactly is ‘reasonable’. The duty will only be discharged when the occupier takes ‘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’. Thus a ‘danger – keep out sign’ may be sufficient to discharge any duty of care depending on the circumstances per Westwood v Post Office. 6
Further, the OLA 1984 makes no reference to the exclusion or restriction of any potential liability, which is a stark contrast to the Occupiers’ Liability Act 1957 where occupiers can restrict or exclude their duty to visitors.
Footnotes
1 Holden v White[1982] QB 679.
3 [1976] 1 All ER 341.
4 The Times, 12 March 1990.
5 Harvey v Plymouth City Council [2010] EWCA Civ 680.
6 [1973] 1 QB 591.
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