2B.3.2 Occupier’s Liability Act 1984 (trespassers) Flashcards
Occupiers’ Liability Act 1984
Provides that an occupier of premises owe a duty of care to trespassers who are injured on the occupier’s property and if this duty is beached and the visitor is injured, they are entitled to compensation.
Changes to the law on OLA to trespassers
The House of Lords used the 1966 Practice Statement to change the law and introduced a duty of ‘common humanity’ in British Rail Board v Herrington.
Does the OLA 1984 apply to harm or property damage?
Only applies to personal injury or death - no damage to property (unlike OLA 1957)
Under s1(3) OLA 1984, a duty is owed to a trespasser if…
1) The occupier is aware of danger or has reasonable grounds to believe it exists;
2) The occupier has reasonable grounds to believe that the claimant is/may come into the vicinity of the danger; and
3) The risk is one which the claimant should expect some protection (magnitude).
Duty owed to a trepsasser
Under s1(4) OLA 1984, the Occupier has a duty to ‘take such care as is reasonable in the circumstances to see that trespassers are not injured by reason of the danger.’
The standard of care is objective. What is required of the occupier depends on the circumstances of each case. The greater the degree of risk, the more precautions the occupier will have to take.
Factors to be taken into account include the:
- Nature of the premises
- Degree of danger
- Practicality of taking precautions
- Age of the trespasser
These two provisions appear to give trespassers the right to claim compensation when they have been injured while trespassing. However, a number of court decisions have restricted when an occupier owes a duty to trespassers and, if a duty is owed, whether the occupier is liable.
Definition of a trespasser
A trespasser is:
* A person who has no permission or authority to be on the occupier’s premises.
or
* A visitor who has gone beyond their permission to be on the premises. - They have outstayed their welcome, they have been told to leave or have gone into an area where they are not supposed to be.
Cases involving adult trespassers
- The occupier will not be liable if the trespasser is injured by an obvious danger, as in the case of Ratcliffe v McConnell.
- The time of day and the time of year when the accident happened can be relevant for deciding whether the occupier owes a duty of care, as seen in the case of Donoghue v Folkestone Properties.
- An occupier does not have to spend lots of money in making premises safe from obvious danger, as seen by Tomlinson v Congleton.
- The occupier will not be liable if they had no reason to suspect the presence of a trespasser. Case: Higgs v Foster
- The occupier will not be liable if they were not aware of the danger, or had no reason to suspect the danger existed. Case: Rhind v Astbury Water Park (2004).
[Cases involving adult trespassers]
Ratcliffe v McConnell (1999)
The claimant climbed a fence and jumped into a swimming pool, hitting their head on the bottom and was seriously injured.
Held: an occupier was not required to warn adult trespassers of the risk of injury arising from obvious dangers. In this case, there was no hidden danger because the risk was obvious.
[Cases involving adult trespassers]
Donoghue v Folkestone Properties (2003)
The claimant was injured when he trespassed in a harbour. He divided into the sea and hit his head on a grid pile used for mooring boats, suffering serious injuries. The pile would have been visible at low tide. The incident took place in the middle of winter about midnight.
Held: the occupier did not owe the claimant a duty of care under the 1984 act as they could not expect a trespasser would be present, or jump into the harbour, at that time of day or year.
[Cases involving adult trespassers]
Tomlinson v Congleton Borough Council (2003)
The council owned a park with a lake, with obvious warning signs in place – prohibiting swimming and diving. Ignoring the signs, the), dove in and struck his head at the bottom, causing severe spinal injury and paralysis.
A 3-stage test was created:
1) The occupier owes a duty for state of premises.
2) The occupier doesn’t owe duty for risky actions the claimant chose to do.
3) It is not reasonable for the Council to spend a lot of money preventing visitors suffering injury by an obvious danger.
[Cases involving adult trespassers]
Higgs v Foster
A police officer investigating a crime entered the occupier’s premises to carry out surveillance. He into an uncovered inspection pit suffering severe injuries, causing him to retire. The police officer was judged to be a trespasser on the premises.
However, even though the occupier knew of the pit, the occupier could not have anticipated his presence on the premises, so they were not liable.
[Cases involving adult trespassers]
Rhind v Astbury Water Park (2004)
The claimant ignored a sign prohibiting swimming and jumped into a lake. He was inured by objects below the surface. The occupiers did not know of a submerged fibreglass container resting on the bottom of a lake.
Held: there is no obligation on the occupier to check for hidden dangers. This is different from a duty under the 1957 Act where the occupier should ensure that the visitor will be reasonably safe.
Cases involving child trespassers
The same statutory rules and judges’ approach apply to child visitors as for adult visitors.
- An occupier will not be liable if there was no danger due to the state of the premises, and the danger instead was caused by the trespasser’s act. | Case: Keown v Coventry Healthcare NHS Trust (2006)
- There is no duty on the occupier to warn against obvious dangers.| Case: Baldaccino v West Wittering (2008)
Keown v Coventry Healthcare NHS Trust (2006)
An 11-year-old boy fell from a fire escape on the exterior of a hospital when he was showing off to his friends.
Held: It was not the state of the premises that was the problem, it was what the boy was doing on it. The hospital was not liable as there was no danger due to the state of the premises.
Baldaccino v West Wittering (2008)
A 14-year-old boy climbed a navigational beacon sited off a beach as the tide was ebbing. He dived off the beacon, suffering severe neck injuries. He was a lawful visitor to the beach but a trespasser to the beacon.
His claim failed as there was no duty on the occupier to warn against obvious dangers, and the injuries did not result from the state of the premises.
