Unlawful Vistors

• Occupiers' liability


  Liability of an occupier to both visitors and persons other than visitors to their premises
• Occupiers Liability Act 1984 concerns the duty owed to persons other than visitors
• Person other than a visitor

  Often referred to as an 'unlawful visitor' or 'trespasser'
• Occupier


  Anybody who would be classified as an occupier under the Occupiers Liability Act 1957
• The common law was very harsh towards trespassers including children
• Addie v Dumbreck [1929]

  • No duty of care owed by occupiers to trespassers to ensure they were safe when coming onto the land, only duty not to inflict harm wilfully
• British Railways Board v Herrington [1972]

  • House of Lords held that a duty of care could be owed to trespassers, leading to the introduction of the Occupiers Liability Act 1984
• Statutory duty of care under Occupiers Liability Act 1984 s1(3)

  1. Occupier is aware of the danger or has reasonable grounds to believe it exists

  2. Occupier knows or has reasonable grounds to believe the other is in the vicinity of the danger or may come into the vicinity

  3. The risk is one against which, in all the circumstances, the occupier may reasonably be expected to offer the other some protection
• Duty owed under Occupiers Liability Act 1984 s1(4)

  To take care as is reasonable in all the circumstances to see that the person other than a visitor is not injured on the premises by the danger concerned
• Lord Hoffman: 'In the case of a lawful visitor, there is a duty, whereas in the case of a trespasser, there is none'
• Under Occupiers Liability Act 1957, a duty of care is owed to all visitors, whereas under Occupiers Liability Act 1984 a duty is owed only if certain conditions are met
• Tomlinson v Congleton Borough Council [2003]


  • Tomlinson, aged 18, ignored warning signs and dived into a lake, breaking his neck and becoming tetraplegic. The council was not liable under either the Occupiers Liability Act 1957 or 1984
• Lord Hoffman: 'It will be extremely rare for an occupier to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake on the land'
• Lord Hoffman: 'It is unjust that harmless recreation should be prohibited to comply with a legal duty to safeguard irresponsible visitors against obvious dangers'