Liability of occupiers towards trespassers- (Act 1984 - Occupiers’ Liability)- FS

Question 1

What statutory framework governs the duty owed by occupiers to trespassers in modern English law?

Answer 1

The Occupiers’ Liability Act 1984 governs the duty owed by occupiers to trespassers, replacing the earlier common law duty of “common humanity” established in British Railway Board v Herrington.

Question 2

How does the Occupiers’ Liability Act 1984 define “occupier”?

Answer 2

The definition is not provided in the statute; it relies on case law, particularly Wheat v Lacon, which defines an occupier as someone with sufficient control over the premises.

Question 3

What is the definition of “premises” under the Occupiers’ Liability Act 1984?

Answer 3

Under Section 1 of the Act, “premises” includes any fixed or movable structure, including vehicles, vessels, and aircraft.

Question 4

Can a person be considered a trespasser even if the trespass was unintentional?

Answer 4

Yes. A person is a trespasser if they enter land without permission, whether intentionally or by mistake.

Question 5

Why does the 1984 Act not allow trespassers to claim for property damage?

Answer 5

This reflects a policy decision to limit the occupier’s liability and prevent trespassers from enjoying the same legal protections as lawful visitors.

Question 6

Under the Occupiers’ Liability Act 1984, what is the key factor in determining whether someone is a trespasser?

Answer 6

Whether the person entered without express or implied permission and whether the occupier would object to their presence.

Question 7

Under the Occupier’s Liability Act 1984, what kind of harm can trespassers claim for?

Answer 7

Trespassers can claim only for personal injury, not for damage to property.

Question 8

How do the Occupiers’ Liability Acts of 1957 and 1984 differ in their application?

Answer 8

The 1957 Act applies to lawful visitors, while the 1984 Act governs the duty owed to trespassers.

Question 9

What definitions are shared by both the 1957 and 1984 Occupiers’ Liability Acts?

Answer 9

Both Acts use the same definitions for “occupiers” and “premises.”

Question 10

According to Lord Dunedin’s definition, what constitutes a trespasser?

Answer 10

trespasser is someone who enters land without express or implied permission, and whose presence is unknown or objected to by the occupier.

Question 11

Does the 1984 Act impose an automatic duty of care to trespassers?

Answer 11

No. A duty of care arises only if a specific three-part test is satisfied.

Question 12

What is the first requirement in the three-part test to establish a duty of care to a trespasser?

Answer 12

The occupier must be aware of the danger or have reasonable grounds to believe that it exists.

Question 13

What is the second requirement in the three-part test under the 1984 Act?

Answer 13

he occupier must know or have reasonable grounds to believe that a trespasser is in the vicinity of the danger or may come into it.

Question 14

Why is the timing of a trespasser’s presence important in determining liability?

Answer 14

The occupier must have knowledge of the trespasser’s presence at the time of the accident, not just at other times.

Question 15

What is the third requirement in the three-part test under the 1984 Act?

Answer 15

The occupier must be reasonably expected to offer the trespasser some protection against the risk, considering all the circumstances.

Question 16

What factors are considered in determining whether protection is reasonably expected under the 1984 Act?

Answer 16

Factors include the likelihood and magnitude of harm, cost and practicality of precautions, and whether the risk was obvious or self-inflicted.

Question 17

What is the standard of duty owed under the Occupiers’ Liability Act 1984 if the three-part test is satisfied?

Answer 17

The occupier must take reasonable care in all the circumstances to ensure that the trespasser is not injured by the danger.

Question 18

In what situations may an occupier owe a higher duty of care to a trespasser under the 1984 Act?

Answer 18

A higher duty may be owed to children or inadvertent trespassers—those who did not intend to trespass but accidentally entered.

Question 19

What general negligence factors are used to assess breach under the 1984 Act?

Answer 19

The court considers the likelihood of harm, the magnitude of potential injury, and the cost and practicality of precautions.

Question 20

Can an occupier be in breach even if they took some precautions?

Answer 20

Yes, if the precautions taken are not reasonable or inadequate in light of the foreseeable risk, an occupier may still be found in breach.

Question 21

What is the significance of there being no history of previous trespassers when assessing breach?

Answer 21

If there is no evidence of prior trespassing, the likelihood of harm may be considered low, making breach less likely.

Question 22

What role does the feasibility of precautions play in determining breach?

Answer 22

If simple and low-cost precautions could have prevented the harm, failure to take them increases the likelihood of a breach finding.

Question 23

Under section 1 of the 1984 Act, how can an occupier discharge their duty to trespassers?

Answer 23

By taking reasonable steps to warn of the danger or to discourage persons from incurring the risk.

Question 24

How is warning under the 1984 Act different from the 1957 Act?

Answer 24

Under the 1984 Act, a warning can also serve to discourage trespass, not just to inform of the danger, thereby discharging the duty.

Question 25

Are physical barriers considered adequate warnings under the 1984 Act?

Answer 25

Yes, physical barriers like fencing can be sufficient to discourage entry and may discharge the occupier’s duty if proportionate to the risk.

Question 26

Is an occupier liable if a trespasser ignores adequate warning signs and suffers injury?

Answer 26

Likely not liable, as the occupier has discharged their duty by providing a reasonable warning and discouragement from entry.

Question 27

How do the courts view allurements to children in the context of breach under the 1984 Act?

Answer 27

If the premises contain features that are likely to attract children, the occupier must take extra precautions, as children may not appreciate the risks, increasing the chance of being found in breach.

Question 28

Under the Occupiers’ Liability Act 1984, once a duty of care is breached towards a trespasser, what two key legal elements must still be established for a successful claim?

Answer 28

Causation and remoteness must be established. These are assessed in the same way as in a general negligence claim, meaning it must be shown that the occupier’s breach caused the injury and that the injury was not too remote a consequence of that breach.

Question 29

What principle governs the assessment of causation and remoteness in a claim under the 1984 Act?

Answer 29

The principles used are identical to those in general negligence claims: factual causation (the “but for” test) and legal causation (the harm must not be too remote from the breach).

Question 30

What is the statutory defense of consent under the Occupiers’ Liability Act 1984, and when is it successfully raised?

Answer 30

Consent (volenti non fit injuria) under Section 1 of the 1984 Act is a complete defense. It applies when a trespasser is fully aware of the specific risk and voluntarily accepts it. Full knowledge and voluntary acceptance of the risk are essential.

Question 31

What are the requirements for a trespasser’s conduct to meet the legal threshold for consent under the 1984 Act?

Answer 31

The trespasser must have had actual knowledge of both the nature and extent of the risk and must have voluntarily accepted that risk. Mere awareness is insufficient without voluntary acceptance.

Question 32

How is contributory negligence applied in the context of a claim under the Occupiers’ Liability Act 1984?

Answer 32

If a trespasser’s own negligence contributes to their injury alongside the occupier’s breach, damages may be reduced proportionately. The usual rules of contributory negligence from general negligence law apply.

Question 33

What effect does a finding of contributory negligence have on the liability of an occupier under the 1984 Act?

Answer 33

It results in a partial defense. The court will apportion liability between the occupier and the trespasser, reducing the damages payable to reflect the trespasser’s share of responsibility for the harm

Question 34

Is the defense of illegality available to an occupier under the 1984 Act?

Answer 34

No, illegality is not a defense under the Occupiers’ Liability Act 1984. The focus remains on whether a duty was owed, breached, and whether any applicable defenses like consent or contributory negligence apply.

Question 35

in assessing contributory negligence for a trespasser injured by an obvious hazard, what standard does the court apply?

Answer 35

The court assesses whether a reasonable person in the trespasser’s position would have noticed and avoided the hazard. If the hazard was obvious and the trespasser failed to take reasonable care, contributory negligence will apply