Occupiers liability act 1984 Flashcards
Premises and Occupier? Trespasser?
They mean the same thing under both acts, use same cases
A trespasser is not a lawful visitor and therefore not in 1957 act, could be seen as a harsh approach
introduced a duty of common humanity towards trespassers’
Addie v Dumbreck
The defendant owned View Park Colliery which was situated in a field adjacent to a road. There was a fence around the perimeter of the field although there were large gaps in the fence. The field was often used as a short cut to a railway station where children would use it as a playground
The defendant would often warn people off the land but the attempts were not effective and no real attempt was made to stop people.
A child came on to the land and was killed when he climbed on to apparatus
No duty of care was owed to trespassers to ensure they were safe, the only duty was not to inflict harm wilfully
“In the present case, had the child been a licensee, I would have held the defenders liable; secus if the complainer had been an adult. But, if the person is a trespasser, then the only duty the proprietor has towards him is not maliciously to injure him; he may not shoot him; he may not set a spring gun, for that is just to arrange to shoot him without personally firing the shot. Other illustrations of what he may not do might be found, but they all come under the same head—injury either directly malicious or an acting so reckless as to be tantamount to malicious acting.”
British Railway Board v Herrington
A six year old boy was electrocuted and suffered severe burns when he wondered from a play park onto a live railway line. The railway line was surrounded by a fence however, part of the fence had been pushed down and the gap created had been used frequently as a short cut to the park. The defendant was aware of the gap in the fence which had been present for several months, but had failed to do anything about it. Under existing authority of Addie v Dumbreck no duty of care was owed to trespassers. However, the House of Lords departed from their previous decision using the 1966 Practice Statement and held that the defendant railway company did owe a duty of common humanity to trespassers.
Created the 1984 act as a result
Common sense and common humanity suggested if they were to build something as dangerous as an electric railway, in the line of where children played, they should take measures to protect children from dangers that were not obvious.
Investigated by the law commission report:
Passed the 1984 act and the duty of common humanity was replaced by a statutory duty
What is a trespasser?
A trespasser is someone who enters land or premises without permission. Their presence must either be unknown to the occupier of be objected to.
A person can enter land or premises as a visitor and then become a trespasser, i.e. certain areas staff only areas
Duty to trespassers:
Must overcome two hurdles
1st: the claim must arise out the state of premises not the dangerous actions of the claimants, otherwise there can be no liability Section 1(1)
2nd: duty will only be owed by an occupier to a trespasser if the conditions in Section 1(3) are satisfied
an occupier owes a duty if:
a) he is aware of the danger or has reasonable grounds to believe that it exists
b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger; and
c) the risk is one against which in all the circumstances of the case, he may reasonably be expected to offer the other some protection
The claimant must show that all 3 provision exist, if they cannot do this then the occupier owes no duty and the claim fails
Section 1(4) : to take such care as is reasonable in all the circumstances of the case to see that the trespasser does not suffer injury on the premises by reason of the danger concerned.
Look at likelihood of harm, the potential seriousness of the injury and how practical it was to take precautions against such harm occurring
Differences in duty of care in both acts
1957:
To take such care as is reasonable to see that the visitor will be reasonably safe in using the premises for the intended purpose
1984:
To take such care as is reasonable to see that the non visitor is not injured by the danger concerned
Damage to property
Unlike the 1957 act, the OLA1984 does not cover damage to property. An occupier will be liable for personal injury only. This act appears to have given a right to claim compensation to trespassers when they have been injured while trespassing.
Ratcliff v McConnell
A 19 year old student climbed the fence of his open air college swimming pool at night and dived into the pool, hitting his head on the ledge, he was seriously injured.
The CofA decided the occupier was not required to warn adult trespassers of the risk of injury against obvious dangers.
Donoghue v Folkstone Properties
The claimant was injured when he was trespassing on a slipway into a harbour and dived into the sea, hitting a grid pile used for morning boats. Visible at low tide. The injury happened in the middle of winter at around midnight, did not owe a duty of care to the claimant as they would not expect that a trespasser may be present at that time or year
Time of year and day changes duty of care
Tomlinson v Congleton Borough Council
The claimant visited a country park owned by the defendant estate. He choose to dive into a lake despite the presence of a sign forbidding swimming. He became a trespasser when he moved to a not permitted activity. Brought under OLA 1984, was going to turn it into marsh land, too costly and unnecessary - does not have to spend lots to make safe
Higgs v Foster
A police officer investigating a crime, entered the occupiers premises to carry out surveillance. He fell into an uncovered inspection pit suffering several injuries, causing him to retire from the police service. The police officer was judged to be a trespasser on the property, Although the occupier knew the pit was a potential hazard, they could not have anticipated his presence or in the vicinity so were not liable
Rhind v Astbury water park
The occupier did not know of a submerged fiberglass container resting on the bottom of a lake on its premises. Ignored a notice stating ‘private property, strictly no swimming’ and jumped into the lake and was injured by objects below the surface.
unaware of danger
S1(3)(c) requires the occupier to owe a duty of care if the risk is one against which in all circumstances of the case he may be expected to offer the other some protection
Keown v Coventry Healthcare NHS trust
An 11 year old boy climbed a fire escape on the exterior of a hospital to show off to his friends and fell. The CofA held that since the child appreciated the danger, it was not the stare of the premises but what the boy was doing on it. There was no danger due to the state of premises and the hospital was not liable.
As they did not know of dangerous objects, no duty was owed
Child knew it was dangerous
Baldaccino v West Wittering
On a summers day, a 14 year old boy climbed a navigational beacon sited off a beach as the tide was ebbing. He dived off the beacon, suffering neck injuries and tetraplegia. lawful visitor to the beach, trespasser to the beacon. No duty on the occupiers to warn against obvious dangers, did not result from state of premises
similar stance as adult to child
Defences: Warnings
Westwood v Post office
Under section 1(5) the duty may be discharged 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’
A warning sign may suffice, if it is clear enough that it is an obvious risk to the trespasser
