Lesson 124. Defences under the 1984 Act | OCR A-Level Law
For Specification H418
OCR A-Level Law | Free Revision Notes
Estimated study time: 35 minutes
This Defences under the 1984 Act A-Level Law revision page examines how an occupier may avoid or limit liability towards a trespasser. OCR requires knowledge of defences to claims under the Occupiers’ Liability Act 1984. The principal rules are effective warnings under s1(5), volenti non fit injuria under s1(6) and contributory negligence. You must distinguish a complete defence from a partial defence and recognise that obvious risks and foolhardy conduct may affect whether a duty arises rather than operating as separate defences.
Learning Objectives 🎯
By the end of this revision page, you should be able to:
Explain how an effective warning may limit or discharge an occupier's duty under s1(5).
Explain volenti non fit injuria under s1(6).
Explain contributory negligence and its effect on damages.
Distinguish complete and partial defences.
Identify when apparent "defence" arguments actually belong within the duty analysis under s1(3).
Apply the relevant defence to a trespasser scenario and reach a supported conclusion.
Revision Notes 📚
Where defences fit into a 1984 Act problem
Before considering defences, you would normally establish whether the occupier owes the trespasser a duty.
As covered in the statutory duty towards trespassers [Lesson 123. Occupiers’ Liability Act 1984], s1(3) requires consideration of whether:
D is aware of the danger or has reasonable grounds to believe it exists
D knows or has reasonable grounds to believe that C is or may come into the vicinity of the danger
the risk is one against which D may reasonably be expected to offer some protection.
If the duty arises, s1(4) requires D to take such care as is reasonable in all the circumstances to prevent injury from the danger concerned.
Only then, where appropriate, should you consider whether D can limit or avoid liability.
OCR's 2022 mark scheme identifies:
effective warnings under s1(5)
contributory negligence
volenti under s1(6)
as relevant ways in which liability may be limited.
The three key defence issues
A useful overview is:
Rule | Main question | Possible effect |
Warning, s1(5) | Was the warning effective enough to protect C from the danger? | May discharge or limit D's duty |
Volenti, s1(6) | Did C willingly accept the relevant risk? | Complete defence |
Contributory negligence | Did C's own lack of care contribute to the injury? | Partial defence, damages may be reduced |
The effect of each rule is different.
⚠️ Do not simply end every trespasser answer with:
“D can use warnings, volenti and contributory negligence.”
A defence should only be discussed where the facts support it.
Warnings under s1(5)
What does s1(5) do?
OCR identifies s1(5) as allowing an occupier to limit the scope of the duty through an effective warning.
The 2022 mark scheme identifies Westwood v Post Office as supporting authority.
The important point is:
The existence of a warning is not enough. The warning must actually be effective in relation to the danger.
OCR's specimen mark scheme states that a warning must be sufficient to enable the trespasser to be safe.
A warning can discharge the duty
Where the warning provides sufficient protection from the particular danger, the occupier may be able to argue that the duty has been discharged.
A warning can therefore have a very significant effect.
However, a court does not simply ask:
“Was there a sign?”
It asks:
Was what D did sufficient in the circumstances to protect C from the danger?
The practical effectiveness of the warning matters.
Warning versus notice
Not every notice is a warning of danger.
This distinction was specifically highlighted by OCR in its 2023 examiner report.
In the Henry and Felix scenario, the sign stated that the woodland was Private Land. Some candidates treated this as a safety warning.
OCR explained that it was not. The notice was relevant primarily because it demonstrated that Felix knew he was trespassing. It did not identify the danger which caused his injury.
Remember:
A notice about permission is not automatically a warning about danger.
Example
A sign says:
PRIVATE PROPERTY: NO ENTRY
This may help prove that C knew entry was unauthorised.
It does not necessarily tell C:
that a floor has collapsed
that a pool is empty
that machinery is unsafe
what steps are needed to avoid injury.
You must analyse the actual information provided.
The warning must relate to the danger
A warning is much more likely to be effective where it clearly communicates the particular risk.
Consider:
A trespasser enters an abandoned building. A sign outside simply says "Private Property".
Inside, there is an invisible hole in the floor.
The notice establishes that entry is unauthorised, but it does not necessarily warn C of the hidden floor danger.
By contrast, a clear warning identifying the unsafe floor would provide a stronger s1(5) argument.
Warning and reasonable safety
OCR's specimen Bilal problem is particularly useful.
Bilal was a hotel guest who deliberately entered the swimming pool area despite a notice stating that the pool was closed and guests were not permitted to enter overnight. The pool was empty and the area was dark.
OCR's specimen mark scheme reasoned that:
Bilal became a trespasser when he exceeded his permission
the requirements of s1(3) could be established
the notice was relevant under s1(5)
the warning could operate as a full defence because it was capable of keeping Bilal safe if he obeyed it.
The application is important.
The warning did not need to make the empty pool physically disappear.
It provided a way for Bilal to avoid the danger entirely, by not entering the closed area.
A weak warning may not be enough
Suppose D knows that an abandoned building contains a concealed fifteen-foot drop.
A tiny notice some distance away says:
“Take care.”
The existence of the notice does not automatically protect D.
Ask:
Does it communicate the nature of the danger?
Is it positioned where C can reasonably see it?
Does it enable C to avoid the danger?
Given the severity of the danger, was this warning enough?
The more serious or hidden the danger, the stronger the argument that a vague warning may not be sufficient.
Warning application structure
Use:
s1(5) rule → what warning was actually given → danger faced by C → effectiveness → conclusion
For example:
Section 1(5) allows D to limit the duty through an effective warning. Although the notice states that the land is private, it does not identify the concealed hole which causes C's injury. It is therefore unlikely to be sufficient to protect C from that danger, so D is unlikely to discharge the duty through the notice.
This is much stronger than:
“There was a sign, so D has a defence.”
Volenti non fit injuria
Section 1(6)
OCR identifies volenti non fit injuria under s1(6) of the Occupiers’ Liability Act 1984.
The supporting authority identified by OCR is Ratcliffe v McConnell.
The principle is based on the claimant's voluntary acceptance of the relevant risk.
In simple terms:
If C knowingly and willingly accepts the risk which causes the injury, D may have a complete defence.
Volenti is a complete defence
This is an important distinction.
If volenti succeeds:
D can avoid liability altogether in relation to the accepted risk.
This makes it different from contributory negligence, which merely reduces damages.
You should therefore be cautious before concluding that volenti applies.
Knowledge of danger
The first important issue is whether C knew about the relevant risk.
For example:
C knows that an empty swimming pool lies beyond a locked-off or clearly restricted area.
This may support knowledge.
However:
C knows only that the area is "private".
That does not necessarily prove that C knew of the particular physical danger inside.
Always identify what C actually knew.
Acceptance of danger
Knowledge alone does not necessarily establish volenti.
The stronger question is:
Did C willingly accept the relevant risk?
The facts should support both:
knowledge + voluntary acceptance
If C does not know of the risk, they cannot willingly accept it.
OCR's 2025 negligence mark scheme illustrates this general principle particularly clearly. It rejected volenti where the claimant was not even aware of the risk, let alone accepting it.
The same conceptual distinction is important under the 1984 Act.
Trespassing does not automatically equal volenti
This is a major point.
A claimant may deliberately trespass but not know of a hidden danger.
For example:
Alex deliberately enters private land but does not know that the floor of an abandoned shed is structurally unsafe.
Alex may have voluntarily accepted the fact that they were entering without permission.
That does not automatically mean Alex accepted the risk of the hidden floor collapsing.
Therefore:
Accepting the risk of trespassing is not necessarily the same as accepting the physical risk which causes the injury.
Worked volenti example
D owns a closed outdoor facility.
C is clearly informed of the precise danger within an area, understands that danger, nevertheless deliberately chooses to enter and exposes themselves to that very risk.
A structured analysis would be:
Knowledge
C knows of the specific danger.
Acceptance
C deliberately proceeds despite understanding that risk.
Voluntary choice
The facts indicate that C freely chooses to take the risk.
Conclusion
D has a strong argument under s1(6) that C willingly accepted the danger and that volenti applies.
When volenti is unlikely
The defence is much weaker where:
C did not know of the danger
the danger was hidden
C misunderstood the risk
the facts establish carelessness rather than genuine acceptance.
In those situations, contributory negligence may sometimes be a better argument if C nevertheless contributed to their injury.
Contributory negligence
The OCR specification expressly requires students to understand contributory negligence, including what it is and how it operates.
OCR also identifies contributory negligence as relevant to Occupiers’ Liability Act 1984 claims.
The defence arises where:
C's own conduct contributes to the injury suffered.
Unlike volenti, contributory negligence is a partial defence.
Effect of contributory negligence
Where C is contributorily negligent:
C's damages may be reduced.
The claim is not necessarily destroyed.
OCR identifies the Law Reform (Contributory Negligence) Act 1945 elsewhere in its tort materials, together with authorities including Sayers v Harlow UDC.
For this lesson, the key distinction is:
C contributed to the damage → possible reduction in damages
rather than:
C accepted the risk → possible complete defence
What sort of behaviour may be contributory negligence?
Look for facts showing that C failed to take reasonable care for their own safety.
Examples might include:
ignoring a relevant warning
proceeding carelessly despite appreciating some danger
acting in a way which increases the seriousness of the injury.
The key is that C's conduct must contribute to the harm.
OCR specimen example
In the Bilal hotel scenario, OCR's specimen mark scheme also recognised an alternative contributory-negligence argument.
Bilal read the notice telling guests not to enter the pool area but ignored it.
OCR treated that deliberate conduct as capable of supporting a reduction in damages because he contributed to his own injuries.
This demonstrates that the same factual feature, such as ignoring a warning, may be relevant in different ways depending on the legal argument.
Contributory negligence does not erase D's breach
Suppose D:
owes C a duty
breaches that duty
causes C injury.
C's own carelessness does not necessarily mean:
“D was never liable.”
Instead, the court may recognise shared responsibility.
This reflects the wider tort principle considered in fault and defences [Lesson 109. Theory of tort law].
Volenti and contributory negligence compared
This distinction is worth learning very securely.
Volenti | Contributory negligence |
C knowingly and willingly accepts the relevant risk | C fails to take sufficient care for their own safety |
Focuses on consent | Focuses on contribution to harm |
Complete defence | Partial defence |
Can defeat C's claim | Reduces damages |
Under the 1984 Act, linked to s1(6) | Operates through general tort principles |
OCR authority: Ratcliffe v McConnell | OCR authority includes Sayers v Harlow UDC |
💡 Revision shortcut:
Volenti = "I accept the risk."
Contributory negligence = "My conduct helped cause my loss."
In an exam, explain the law fully rather than relying only on the shortcut.
Warning and volenti compared
Warnings and volenti can also overlap factually, but they ask different legal questions.
Warning
Focuses on D:
Did the occupier take sufficient steps to warn C so that C could be safe?
Volenti
Focuses on C:
Did C understand and voluntarily accept the relevant danger?
A clear warning may provide evidence that C knew of the danger, which could strengthen a volenti argument.
However:
A warning does not automatically prove consent.
You must still establish voluntary acceptance.
Warning and contributory negligence compared
Again, the same facts may raise both issues.
Suppose C:
receives an effective warning
ignores it
suffers injury.
The warning may support D's argument that the duty was discharged under s1(5).
Alternatively, C's decision to ignore the warning may support an argument that C contributed to their own injury.
OCR's specimen Bilal material recognises both possible forms of reasoning.
Do not merge them into one rule.
Obvious risk is not necessarily a defence
A particularly important distinction is between:
a rule which means D does not owe the duty in the first place
a defence to liability after the duty has been established.
In the duty owed to trespassers [Lesson 123. Occupiers’ Liability Act 1984], you learned that s1(3)(c) asks whether the risk is one against which D may reasonably be expected to offer protection.
OCR identifies obvious risks and foolhardy pursuits as relevant at this stage.
For example:
An experienced adult deliberately climbing a very tall tree at night may be taking such an obvious risk that the occupier cannot reasonably be expected to protect them.
If so:
The duty may fail under s1(3)(c).
That is different from saying:
“D owes and breaches the duty but has the defence of obvious risk.”
Foolhardy conduct is not automatically contributory negligence
Similarly, the fact that C is doing something foolish may affect whether a duty arises under s1(3)(c).
OCR identifies Donoghue v Folkestone Properties for the principle that an occupier may expect a trespasser not to engage in obviously foolhardy pursuits or risks which their expertise should make clear.
The first legal question may therefore be:
Was D reasonably expected to protect C from this risk at all?
Only if liability is established should you move to any separate defence supported by the facts.
The order matters
A clear 1984 Act answer should avoid jumping straight to defences.
Use:
Status → s1(3) duty → s1(4) breach → relevant defence
This matters because if:
s1(3)(c) is not satisfied
then:
D owes no statutory duty
and a separate defence may not need to be considered.
For example, in the 2023 Henry and Felix problem, OCR concluded that Henry was unlikely to owe Felix a duty because s1(3)(c) was not satisfied. The question expressly instructed candidates not to discuss defences.
Choosing the correct defence
Use the scenario facts as clues.
Fact | Possible legal issue |
D has clearly warned C about the specific danger | s1(5) |
Notice only says "Private Property" | Status, not necessarily a safety warning |
C knows the exact physical danger and willingly takes it | Volenti, s1(6) |
C knows nothing about the hidden danger | Volenti unlikely |
C acts carelessly and helps cause the injury | Contributory negligence |
C ignores a relevant warning | Warning effectiveness and/or contributory negligence |
C undertakes an obviously foolhardy activity | May be relevant to s1(3)(c) before reaching defences |
C is trained or experienced in relation to an obvious danger | May be relevant to whether protection is reasonably expected |
The correct approach is selective, not exhaustive.
Worked example 1: effective warning
Riverside Ltd knows that the floor inside an unused warehouse is unsafe.
It places a clear barrier immediately outside the entrance stating:
DANGER: FLOOR HAS COLLAPSED. DO NOT ENTER. SERIOUS FALL RISK.
Kai deliberately climbs over the barrier and enters.
Assume a duty under s1(3) would otherwise arise.
Apply s1(5)
The warning:
identifies the particular danger
explains the nature of the risk
is positioned directly at the entrance
gives Kai a clear means of staying safe by not entering.
There is therefore a strong argument that D has taken effective steps to protect Kai from the danger.
Conclusion
Riverside has a strong s1(5) argument that the duty has been discharged.
Worked example 2: ineffective warning
A collapsed floor is hidden inside a dark building.
The only notice says:
PRIVATE LAND
Tariq enters and falls through the floor.
Apply s1(5)
The sign shows Tariq may know he lacks permission.
However, it gives no information about:
the collapsed floor
the danger of falling
how he can avoid that particular hazard other than the general prohibition on entry.
Following the distinction highlighted by OCR's 2023 examiner report, this should not automatically be treated as an effective warning of danger.
Conclusion
D would need a stronger factual basis to establish that this notice discharged the safety duty under s1(5).
Worked example 3: volenti
A trespasser is clearly informed that a disused structure is unstable and may collapse if climbed.
The trespasser fully understands the warning but says that they enjoy taking such risks and deliberately climbs it.
Assume D otherwise owes and has breached a duty.
Knowledge
C is aware of the precise danger.
Acceptance
C deliberately decides to take that danger.
Voluntary nature
There is no suggestion that C had to expose themselves to the risk.
Conclusion
D has a strong argument that C willingly accepted the relevant risk and that volenti under s1(6) applies.
Worked example 4: no volenti but possible contributory negligence
A trespasser knows that an area contains general hazards but does not know that a concealed hole lies beneath loose material.
C nevertheless runs through the area carelessly and suffers more serious injuries because of their speed.
Volenti
C does not know about the concealed hole.
It is therefore difficult to say C willingly accepted that specific risk.
Contributory negligence
C's careless running may have contributed to the occurrence or seriousness of the injuries.
This may support contributory negligence.
Conclusion
Volenti is unlikely, but a reduction in damages through contributory negligence may be possible if C's conduct contributed to the harm.
Worked example 5: two possible arguments
Oak Park owns an unused swimming facility.
A large sign states:
POOL EMPTY. SERIOUS RISK OF INJURY. NO ENTRY.
A 25-year-old trespasser reads it, deliberately enters and dives into the empty pool.
Assume duty and breach would otherwise be established.
Three issues arise.
Warning
The warning identifies:
that the pool is empty
the serious danger
that entry is prohibited.
This creates a strong s1(5) argument.
Volenti
C reads and understands the precise warning but deliberately takes the very risk identified.
This may support volenti under s1(6).
Contributory negligence
At the very least, C's behaviour strongly contributes to the injuries and may support contributory negligence.
Conclusion
D may have several alternative arguments, although you should explain the legal basis and effect of each rather than simply listing all three.
Complete problem-solving method
When a question asks about defences under the 1984 Act, use this structure.
Step 1: Check what the question gives you
Does it already establish:
occupier status?
trespasser status?
the existence of a duty?
breach?
Do not repeat issues that OCR has removed.
Step 2: Identify the factual trigger
Look for:
a warning
knowledge of danger
deliberate acceptance
careless claimant behaviour.
Step 3: Select the legal rule
Use:
s1(5) for an effective warning
s1(6) for volenti
contributory negligence where C contributed to the harm.
Step 4: Apply every relevant requirement
Do not give bald conclusions such as:
“There is a warning so D wins.”
Explain why the warning is or is not effective.
Step 5: State the effect
Is it:
a complete defence?
a partial defence?
a discharge or limitation of the duty?
Step 6: Reach an overall conclusion
State what is likely to happen to the claim.
A complete worked scenario
Westmoor Ltd owns a disused leisure centre.
A damaged stairway inside the building leads to a twenty-foot drop. Westmoor knows that teenagers regularly enter the building without permission.
A sign fixed beside the entrance states:
DANGER: STAIRWAY COLLAPSED. DO NOT ENTER BUILDING. RISK OF SERIOUS FALL.
Seventeen-year-old Luca reads the sign but enters anyway. He knows that the staircase has collapsed but decides that he can jump across the gap. He attempts the jump, falls and suffers serious injuries.
Assume that Westmoor owes Luca a duty under s1(3).
Warning under s1(5)
The warning is:
prominently placed
specific
directed at the exact danger
capable of keeping Luca safe if followed.
Westmoor therefore has a strong argument that the warning was effective under s1(5).
Volenti under s1(6)
Luca:
reads the warning
knows the staircase has collapsed
appreciates the serious fall risk
deliberately attempts to jump across the gap.
These facts strongly suggest that he willingly accepted the relevant danger.
Volenti may therefore provide Westmoor with a complete defence.
Contributory negligence
Alternatively, Luca's conduct clearly contributed to his injuries.
If volenti were not established, contributory negligence may justify a reduction in damages.
Conclusion
Westmoor has strong arguments for avoiding or limiting liability. The effective warning may discharge its duty and the evidence of Luca knowingly choosing to take the precise risk strongly supports volenti. At minimum, Luca's own conduct provides a substantial basis for contributory negligence.
Do not double-count the same fact
A single fact can be relevant to several legal issues, but explain its significance separately.
For example:
“C read the warning.”
This could show:
For s1(5)
The warning reached C and may have been effective.
For volenti
C may have had knowledge of the risk.
For contributory negligence
Ignoring the warning may show failure to take reasonable care.
Do not simply repeat the same sentence three times.
Explain what the fact proves for each different rule.
Defences and personal responsibility
These rules reflect an important theme of tort law.
The Occupiers’ Liability Act 1984 offers some legal protection to people who are on premises without permission, but it does not remove their own responsibility for how they behave.
This connects with fault and personal responsibility in tort [Lesson 109. Theory of tort law].
For example:
an effective warning allows C to avoid the danger
volenti recognises deliberate acceptance of risk
contributory negligence recognises shared responsibility.
These rules therefore prevent liability resting entirely on the occupier regardless of the trespasser's conduct.
1957 and 1984 Act defences
Some broad concepts occur under both occupiers’ liability regimes, but the statutory provisions must not be confused.
You studied lawful-visitor defences in limitations and defences for lawful visitors [Lesson 122. Defences under the 1957 Act].
For the 1984 Act, focus particularly on:
s1(5) warnings
s1(6) volenti
contributory negligence.
Do not import provisions such as:
s2(3)(b) skilled visitors
s2(4)(b) independent contractors
into a 1984 Act trespasser claim simply because you remember them from the previous topic.
Preparing for evaluation
The way these defences operate is also important when deciding whether the 1984 Act is fair.
They can be viewed as protecting occupiers from excessive liability because:
occupiers can warn trespassers of danger
people who willingly take risks may be prevented from recovering
claimants who contribute to their own injuries may have damages reduced.
OCR's 2022 evaluation mark scheme specifically recognises warnings, volenti, obvious dangers and claimant foolhardiness as features which can make the Act fairer to occupiers.
You will consider this fully in fairness and competing interests in occupiers’ liability [Lesson 125. Evaluating occupiers’ liability].
Key Words 🔑
Key word | Student-friendly definition | How it may be used in an exam |
Warning | Information about a danger which may limit or discharge the occupier's duty if it is sufficiently effective. | Applied under s1(5). |
Volenti non fit injuria | A complete defence where C knowingly and willingly accepts the relevant risk. | Applied under s1(6). |
Contributory negligence | A partial defence where C's own conduct contributes to the injury. | Used to reduce C's damages. |
Complete defence | A defence capable of preventing C from recovering for the claim. | Used to describe the potential effect of volenti. |
Partial defence | A defence which reduces C's recovery rather than destroying the whole claim. | Used to describe contributory negligence. |
Hints from the Examiner Reports 💡
Examiner hint: Be selective. OCR repeatedly warns against the "shotgun" approach of writing everything known about an area of law regardless of relevance.
If the scenario contains no warning, do not automatically write a paragraph on s1(5).
Examiner hint: Read notices accurately. OCR's 2023 report specifically identified candidates treating a "Private Land" notice as a warning when it contained no actual warning about the danger.
Ask what information the notice really communicates.
Examiner hint: Use statutory sections accurately. OCR gives credit for relevant statutory provisions in Occupiers’ Liability Act questions in the same way that appropriate case authority supports other legal principles.
For this lesson, know s1(5) and s1(6).
Examiner hint: Explain the law and then apply it. OCR's reports repeatedly identify bald assertions and purely common-sense narrative as weaker AO2.
Use:
legal rule → fact → explanation → conclusion
Examiner hint: Follow the question rubric. In the 2023 trespasser problem, OCR expressly excluded defences, and candidates received no credit for discussing them.
If the question says “do not consider defences”, stop before this lesson's material.
Common Mistakes ⚠️
Mistake: Treating every sign as an effective warning
Why this is incorrect: A notice may concern permission rather than the danger itself.
How to improve: Ask whether the warning actually communicates the relevant danger and is sufficient to protect C.
Mistake: Assuming “Private Property” proves s1(5)
Why this is incorrect: OCR has specifically warned that a notice establishing trespasser status does not automatically constitute a warning of danger.
How to improve: Separate:
permission notice from safety warning.
Mistake: Saying any warning automatically defeats the claim
Why this is incorrect: The warning must be sufficiently effective.
How to improve: Apply the warning to the particular danger and ask whether it could reasonably enable C to remain safe.
Mistake: Assuming trespass equals volenti
Why this is incorrect: A person may deliberately trespass without knowing about or accepting a hidden danger.
How to improve: Ask separately whether C knew and willingly accepted the specific risk.
Mistake: Treating knowledge and consent as the same thing
Why this is incorrect: Knowing that a risk exists does not necessarily mean C voluntarily accepted it.
How to improve: Establish:
knowledge + voluntary acceptance.
Mistake: Saying contributory negligence is a complete defence
Why this is incorrect: Contributory negligence is partial.
How to improve: Conclude that C's damages may be reduced.
Mistake: Treating volenti and contributory negligence as interchangeable
Why this is incorrect: They involve different legal principles and consequences.
How to improve: Remember:
Volenti = consent
Contributory negligence = contribution
Mistake: Calling obvious risk a defence without considering s1(3)(c)
Why this is incorrect: An obvious risk may mean that D was not reasonably expected to provide protection in the first place.
How to improve: Deal with obvious or foolhardy risks at the appropriate duty stage before considering separate defences.
Mistake: Applying 1957 Act provisions to a trespasser
Why this is incorrect: Rules such as those for skilled visitors and independent contractors arise under the 1957 Act.
How to improve: Keep your statutory provisions separated by Act.
Mistake: Writing about a defence when the question excludes it
Why this is incorrect: OCR may expressly tell candidates not to consider defences.
How to improve: Read the final sentence of every problem question before planning your answer.
Exam-Style Questions ✍️
Question 1
Identify the section of the Occupiers’ Liability Act 1984 dealing with warnings. (1 mark)
Question 2
Explain when a warning may limit an occupier's liability under the Occupiers’ Liability Act 1984. (4 marks)
Question 3
Explain volenti non fit injuria under s1(6) of the Occupiers’ Liability Act 1984. (4 marks)
Question 4
Distinguish volenti from contributory negligence. (4 marks)
Question 5
A notice at the entrance to private woodland states only:
“PRIVATE LAND: NO PUBLIC ACCESS.”
A trespasser enters and is injured by a concealed dangerous structure.
Explain whether the notice necessarily provides the occupier with a defence under s1(5). (4 marks)
Question 6
An occupier places a clear notice immediately outside a dangerous building stating:
“DANGER: FLOOR COLLAPSED. DO NOT ENTER. SERIOUS FALL RISK.”
A trespasser reads the warning, deliberately enters and is injured by the collapsed floor.
Apply s1(5) and s1(6) to the scenario. (6 marks)
Question 7
A trespasser does not know that a concealed danger exists, but behaves carelessly while crossing the premises and this carelessness contributes significantly to the injuries suffered.
Explain which defence is most likely to be relevant. (5 marks)
Question 8
Lakeside Ltd owns a closed leisure centre. The building contains an empty indoor swimming pool which is difficult to see because the room is dark.
Lakeside knows that people sometimes enter the premises without permission. It places a large notice across the pool-room entrance stating:
“POOL EMPTY. DANGER OF SERIOUS INJURY. NO ENTRY.”
Eighteen-year-old Tariq enters the building without permission. He reads the notice but decides to enter the pool room anyway. He knows the pool is empty but thinks he can jump safely from the diving platform onto the pool floor. He jumps and suffers serious injuries.
Assume that Lakeside owes Tariq a duty under s1(3) and that breach under s1(4) would otherwise be established.
Advise Lakeside Ltd whether it has any defences or other arguments limiting liability under the Occupiers’ Liability Act 1984. (20 marks)
Answers and mark scheme
Question 1
1 mark
Section 1(5). (1)
Question 2
4 marks
Award credit for:
identifying s1(5) (1)
explaining that an occupier may limit or discharge the duty through an effective warning (1)
the warning must be sufficient in relation to the particular danger (1)
OCR identifies Westwood v Post Office as supporting authority (1)
Question 3
4 marks
Award credit for:
identifying s1(6) (1)
explaining that volenti concerns C's voluntary acceptance of the relevant risk (1)
C must know of and willingly accept that risk (1)
it can operate as a complete defence, with Ratcliffe v McConnell as relevant OCR authority (1)
Question 4
4 marks
Award credit for:
volenti concerns C's voluntary acceptance of risk (1)
volenti can operate as a complete defence (1)
contributory negligence concerns C contributing to their own injury through their conduct (1)
contributory negligence is partial and can reduce damages (1)
Question 5
4 marks
Award credit for:
recognising that s1(5) requires an effective warning of danger (1)
the notice establishes that C knows entry is unauthorised (1)
it does not identify the concealed dangerous structure or explain the physical risk (1)
therefore, it does not necessarily discharge the occupier's duty under s1(5) (1)
Question 6
6 marks
A strong response should explain:
s1(5) allows an effective warning to limit or discharge D's duty (1)
the notice identifies the precise danger, a collapsed floor and serious fall risk (1)
C reads the warning, so it has successfully communicated the danger (1)
D therefore has a strong argument that the warning was sufficient (1)
under s1(6), C's knowledge and deliberate decision to enter may also demonstrate voluntary acceptance of the relevant risk (1)
D therefore has a strong alternative volenti argument (1)
Question 7
5 marks
Award credit for:
volenti is unlikely because C does not know of the concealed danger (1)
without knowledge, C cannot willingly accept that particular risk (1)
contributory negligence is therefore more relevant (1)
C's own careless conduct contributed significantly to the injuries (1)
if established, damages may be reduced rather than the claim necessarily being defeated (1)
Question 8
20 marks
A strong response should concentrate on the defences and limitations actually raised by the scenario.
Warning under s1(5)
Section 1(5) allows an occupier to limit or discharge its duty through an effective warning.
OCR identifies Westwood v Post Office as relevant authority.
The warning is large and situated directly at the pool-room entrance.
It specifically states that the pool is empty.
It identifies a danger of serious injury.
It tells Tariq not to enter.
Tariq actually reads the warning.
The warning therefore appears capable of enabling Tariq to remain safe by staying outside the dangerous room.
Lakeside has a strong argument that its duty has been discharged or liability limited through s1(5).
Volenti under s1(6)
Volenti non fit injuria applies where C knowingly and willingly accepts the relevant risk.
Ratcliffe v McConnell is relevant OCR authority.
Tariq knows the pool is empty.
He has expressly read the warning of serious injury.
Despite that knowledge, he deliberately enters.
He then voluntarily jumps from the diving platform into the empty pool.
These facts strongly support both knowledge and voluntary acceptance of the precise danger which causes his injuries.
Lakeside therefore has a strong argument that volenti provides a complete defence.
Contributory negligence
Contributory negligence is a partial defence where C's own conduct contributes to the injury.
Tariq ignores a clear warning and deliberately jumps into an empty pool.
His conduct therefore plainly contributes to his injuries.
If Lakeside cannot establish a complete defence, contributory negligence provides a strong alternative argument.
Its effect would be to reduce Tariq's damages.
Overall conclusion
Lakeside has strong arguments limiting or avoiding liability.
The warning is highly specific, prominent and actually read by Tariq, so it is likely to be effective under s1(5).
Tariq's knowledge of the empty pool and deliberate decision to jump into it also create a particularly strong volenti argument under s1(6) because he appears knowingly and voluntarily to accept the exact risk which causes his injuries.
If neither argument completely defeats the claim, Tariq's conduct provides a strong basis for contributory negligence, which could substantially reduce his damages.
A high-level answer should distinguish clearly between the different legal effects of s1(5), volenti and contributory negligence rather than treating them as three identical defences.
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