OL Trespassers

Question 1

1. Is D an occupier

Answer 1

Wheat v Lacon: Can be multiple occupiers
Harris: No need to be physical possession
Bailey v Armes: Can be no occupier

Question 2

2. Did it happen on ‘premises’

Answer 2

s.1(3): Fixed or moveable structure, including aircraft or vessels
Wheeler v Copas: Can be a ladder

Question 3

3. Is claimant a lawful visitor

Answer 3

Invitee/licensee (s.1(2) OLA 1957)
Statutory right (s.2(5) OLA 1957)
Contractual Permission (s.5(2) OLA 1957)
BRB v Herrington - duty of common humanity, risks higher for children

Question 4

4. Visitor is a trespasser - does defendant owe them a duty

Answer 4

OLA 1984 - s.1(3): D owes a duty if:
1. D is aware of the danger
2. D is aware of the risk of trespass
3. Is it the kind of risk we could expect D to prevent
s.1(4) / Ratcliff v McConnell: standard of care is objective

Question 5

4(1). D is aware of the danger

Answer 5

Rhind v Astbury Waterpark - D not aware of container in lake, no liability

Question 6

4(2). D is aware of risk of trespass

Answer 6

Donoghue v Folkestone - D did not expect anyone to dive off harbour at midnight in winter, no liability
Higgs v Foster - D could not have anticipated presence of police officer, no liability

Question 7

4(3). Is it the kind of risk we could expect D to prevent

Answer 7

Tomlinson v Congleton - Cost too high to expect D to pay

Question 8

5. Is it personal injury or property damage

Answer 8

s.1(1)(a) - personal injury ONLY

Question 9

6. Has the defendant taken reasonable care

Answer 9

s.1(4) OLA 1984: If D has done what was reasonable there is no liability
Tomlinson / Ratcliff: Risk was obvious, D had no need to warn against it

Question 10

Do any defences apply

Answer 10

Contributory negligence: Law reform (Contributory negligence) act
Consent: smith v baker
Warning signs used: Westwood v post office - will be effective as long as it clearly warns of danger (may be different for adults and children)