Ocuupiers’ Liability Act ( Trespassers ) Flashcards
What case established the duty of “common humanity” owed to trespassers under the OLA 1984?
C may bring an action against D under the OLA 1984 prompted by BRITISH RAILWAYS BOARD v HERRINGTON which established a ‘duty of common humanity owed to a trespasser.
How is a trespasser defined in common law according to ADDIE v DUMBRECK?
A trespasser is not defined in the Act, and the common law definition stabilised in ADDIE v DUMBRECK is used : “someone who goes on land without any sort of permission and whose presence is unknown to the occupier or, if known, is objected to”.
How can an unlawful visitor become a trespasser?
A lawful visitor under the 1957 Act can become a trespasser when they go beyond their permission.
What must the defendant be?
D must be the occupier, with control of the premises. (WHEAT v E.LACON and CO)
What definition must ‘premises’ fall within?
‘Premises’ must fall within the very wide definition of fixed or moveable structure following WHEELER v COPAS.
What is the duty owed to trespassers under Section 1(1) of 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”, set out in KEOWN v COVENTRY NHS TRUST.
Under Section 1(3) of the OLA 1984, what is the first condition for an occupier to owe a duty of care?
- D must be aware of the danger or have reasonable grounds to believe it exists (RHIND v ASTBURY WATER PARK)
Under Section 1(3) of OLA 1984, what is the second condition for an occupier to owe a duty of care?
- D must know or have reasonable grounds to believe that C (or any trespasser) was in or may come into the vicinity of the danger. (HIGGS v FOSTER). There is no duty to an ‘unexpected trespassers’.
Under Section 1(3) of OLA 1984, what is the third condition for an occupier to owe a duty of care?
- The risk is one against which D may be expected to offer some protection to C (RATCLIFF v MCCONNELL). They don’t have to offer protection in respect of ‘obvious dangers’.
Under Section 1(4) what is the duty of care owed by an occupier?
Under Section 1(4), the occupier must “take care as is reasonable in all the circumstances” to prevent injury to trespassers “by reason of the danger concerned”.
What test is used on determine if an occupier’s care was reasonable under Section 1(4)?
This is an objective test and D’s standard of care will be compared to the reasonable occupier (VAUGHAN v MENLOVE, BLYTH v BIRMINGHAM WATERWORKS) or reasonably competent professional occupier (BOLAM v FRIERN BARNET HMC).
What factors can be considered when determining the reasonableness of an occupier’s duty of care?
Factors may be considered such as the degree of danger and the cost and practicality of reducing the risk of harm, (TOMLINSON v CONGLETON BC) and the age of the trespasser especially where their is an allurement (JOLLEY v SUTTON).
Does the occupier have to protect adults from obvious dangers?
The occupier does not have to offer protection to adults in respect for ‘obvious dangers’, as in RATCLIFF v MCCONNELL, and this may apply to older children (BALDACCINO v WEST WITTERING).
How is the behaviour of the trespasser considered under occupiers’ liability?
The occupier is entitled to expect that a trespasser will not engage in foolhardy activities, or where expertise should make them aware of the danger, (DONOGHUE v FOLKESTONE PROPERTIES).
(IF RELEVANT: DEFENCES) Under Section 1(5) of the OLA 1984, when can a warning act as a full defence?
Under S.1(5), an oral or written warning can be a full defence if it is effective, (WESTWOOD v POST OFFICE). A warning may be less effective in respect of a child, depending on their age and understanding.
