In British Railways Board v Herrington 1972 AC 877, the House of Lords had decided that occupiers owed a duty to trespassers, but the exact application of the decision was unclear.

The matter was then referred to the Law Commission for a report, and as a result the Occupiers' Liability Bill was introduced to Parliament by Lord Hailsham on 23 June 1983.

This clause was first considered by the courts in White v The Council of the City and District of St. Albans [1990], where the claimant had taken a shortcut across the defendant's fenced-off land and fell into a trench.

The Court of Appeal rejected this argument, saying that just because a defendant had tried to prevent people entering dangerous land did not mean that the "reasonable grounds to believe" have been satisfied.

[10] The duty of care does not apply to those using a highway, thus preserving the criticised common law rule established in Greenhalgh v British Railways Board [1969] 2 QB 286.

In Ratcliff v McConnell [1999] the plaintiff, who had been drinking (but was not drunk) jumped into a swimming pool marked with warning signs, suffering serious injuries after hitting the bottom.

It states that the occupier discharges his duty "by taking 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".

[16] The Unfair Contract Terms Act 1977 originally only allowed an occupier to exclude the common duty of care if the property is used for business purposes.