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Occupiers’ liability 239

The Occupiers’ Liability Act 1957 s. 2 requires occupiers of premises to take:

such care as in all the circumstances of the case is reasonable to see that the visitor will be reason-

ably safe in using the premises for the purposes for which he is invited or permitted by the

occupier to be there.

This standard of care is very similar to the standard required in the tort of negligence. In
some ways the statute has just extended the tort of negligence to cover injuries to lawful
visitors on premises.
The standard is not an absolute one. It varies with all the circumstances. Some people,
such as children, can be expected to be less careful than others, and a higher duty is there-
fore owed to them. Others, such as contractors, can be expected to look out for themselves
rather better than most people, especially if they have been warned of a particular danger.
Consequently, they are owed a lower duty. Sections 1 and 2 of the Compensation Act 2006,
considered on p. 231, will apply in assessing whether a duty of care has been breached.
Notices which warn of danger might mean that the occupier is not liable, but only if they
enable the lawful visitor to be reasonably safe in visiting the premises. Notices which go
further than mere warnings, and which try to restrict liability for injury to lawful visitors,
will be subject to the Unfair Contract Terms Act 1977. In Chapter 3 we saw that s. 2(1) of
that Act provides that liability in respect of death or personal injury caused by negligence
can never be excluded. We also saw that s. 2(2) provides that liability for damage other than
death or personal injury can be excluded, but only by a term or notice which is reasonable.
As far as the UCTA 1977 is concerned, liability under the Occupiers’ Liability Act 1957 is
liability in negligence.
Damages can be claimed only in respect of injuries or losses which were of a reasonably
foreseeable type. Volenti non fit injuria can be a complete defence and contributory neglig-
ence can reduce the amount of damages awarded.

Non-lawful visitors

Any person who enters the premises other than as a lawful visitor will do so as a non-
lawful visitor. Frequently, such non-lawful visitors will be trespassing children, and the
courts have recognised that even trespassers need considerable protection from inherently
dangerous things such as live railway lines.
Section 1(3) of the Occupiers’ Liability Act 1984 extends a statutory duty of protection to
trespassers. The occupier owes the duty to take such care as is reasonable to see that the
trespasser is not injured. The duty arises if three conditions are met:

(i) the occupier knows or ought to know that a danger exists;

(ii) the occupier knows or ought to know that the trespasser is in the vicinity of the danger;
and

(iii) the risk is one against which the occupier could, in all the circumstances of the case,
reasonably be expected to offer the trespasser some protection.

Sections 1 and 2 of the Compensation Act 2006, considered on p. 231, will apply in assessing
whether a duty of care has been breached.
Liability under the Occupiers’ Liability Act 1984 can arise only for personal injuries. The
Unfair Contract Terms Act 1977 does not apply to the duty of care created by the 1984 Act.
Notices and signs can therefore have the effect of excluding liability, even for death or
personal injury. However, notices will have this effect only if they reasonably give notice of