Occupiers Liability (Tresspasser) Flashcards
What case established a duty of common humanity owed to a trespasser?
British Railways Board v Herrington
This case prompted the Occupiers Liability Act 1984.
How is a trespasser defined?
A trespasser is defined in Addie v Dumbreck as someone who goes on land without any sort of permission and whose presence is unknown to the occupier or, if known, is objected to.
Can a lawful visitor become a trespasser?
Yes, a lawful visitor under the 1957 Act can become a trespasser when they go beyond their permission.
Example: C is a trespasser because he climbed over the wall at night.
Who must be the occupier in a trespasser liability case?
D must be the occupier, as established in Wheat v Lacon.
Example: D is the occupier as they have control of the house where the injury occurred.
What is the definition of ‘premises’ in occupiers’ liability?
‘Premises’ must fall within the very wide definition of fixed or moveable structure following Wheeler v Copas.
Example: D is the occupier of premises as the cottage is a fixed structure.
What duty of care is owed to a trespasser under the OLA 1984?
Under Section 1(1) of the OLA 1984, a duty of care is owed by an occupier to a trespasser in respect of injury caused by a danger due to the state of the premises.
Example: C’s broken leg was caused by danger due to the state of D’s premises because the climbing frame was broken.
What are the three conditions under Section 1(3) for an occupier to owe a duty of care?
The occupier will only owe a duty of care if three conditions are met:
1. D must be aware of the danger or have reasonable grounds to believe it exists.
2. D must have known or had reasonable grounds to believe that C (or any trespasser) was in, or may come into, the vicinity of the danger.
3. There is no duty to an ‘unexpected trespasser’.
What is the first condition under Section 1(3)(a)?
D must be aware of the danger or have reasonable grounds to believe it exists, as established in Rhind v Astbury Water Park.
Example: D was aware of the danger as he put up a warning sign about the broken swing.
What is the second condition under Section 1(3)(b)?
D must have known or had reasonable grounds to believe that C (or any trespasser) was in, or may come into, the vicinity of the danger, as established in Higgs v Foster.
What is the occupier’s duty under S1(3)(c)?
The risk is one against which D may be expected to offer some protection to C.
Example: Ratcliff v McConnell
Are occupiers required to protect adults from obvious dangers?
No, occupiers do not have to offer protection to adults regarding ‘obvious dangers’.
Example: Ratcliff v McConnell
Do occupiers owe a duty of care to older children?
This may apply to older children.
Example: Scott v Associated British Ports
What can be expected of a trespasser regarding dangerous activities?
The occupier is entitled to expect that a trespasser will not engage in foolhardy activities or be unaware of the danger due to expertise.
Example: Donoghue v Folkestone Properties
What happens if D has offered all reasonable protection?
If D has offered all reasonable protection, it is unlikely a duty will be owed.
What must an occupier do under Section 1(4)?
The occupier must take such care as is reasonable in all the circumstances to prevent injury to trespassers by reason of the danger concerned.
What is the standard of care under Section 1(4)?
This is an objective test and D’s standard of care will be compared to the reasonable occupier.
Examples: Vaughan v Menlove, Blyth v Birmingham
What factors may be considered in determining the standard of care?
Factors may include the degree of danger, cost and practicality of reducing risk, and the age of the trespasser.
Examples: Tomlinson v Congleton BC, Jolley v Sutton
What happens if D has not taken all precautions?
D has fallen below the standard of a reasonable occupier.
What is the effect of an oral or written warning under Section 1(5)?
An oral or written warning can be a full defense if it is effective.
Example: Westwood v Post Office
How does a warning’s effectiveness vary?
A warning may be less effective in respect of a child, depending on their age and understanding.
What does the Law Reform (Contributory Negligence) Act 1945 provide?
It provides that any damages can be reduced according to the extent to which the claimant has contributed to their own injuries, with even 100% a possibility.
Example: In Sayers v Harlow, damages were reduced as the claimant partly caused his own injuries by not wearing a helmet.
What is volenti non fit injuria?
Volenti non fit injuria (consent) is a full defence under Section 1(6), where the claimant fully understood the nature of the risk and exercised free choice.
Example: In Ratcliff v McConnell, the claimant fully understood the risk when swimming in the pool and exercised free choice.
What can be claimed under Section 1(8) as a remedy?
A claim can be made for personal injury, not damage to property.
The court may award compensatory damages under the DAMAGES ACT 1996 to put the claimant in their pre-tort position.
What types of losses can be claimed?
Pecuniary (financial) losses such as medical bills can be claimed as special damages, and non-pecuniary (non-financial) losses such as loss of amenity can be claimed as general damages.
What is the duty of the claimant regarding loss?
The claimant is under a duty to mitigate loss, which means to keep the loss to a reasonable level.
This involves applying the losses suffered and the damages received as a result.
