Trespasser Flashcards
Occupier’s liability is governed by the
Occupier’s Liability Act 1957 (lawful visitors) and the Occupier’s Liability Act 1984 (non-lawful visitors: trespassers).
C may bring an action against D under the
OLA 1984, prompted by British Railways v Herrington which established a duty of common humanity owed to a trespasser.
A trespasser is not
defined in the Act, and the common law definition established 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.
A lawful visitor under the 1957 Act can
become a trespasser when they go beyond their permission.
D must be the
occupier, with control of the premise wheat v E. Lacon and co
premises must fall within
the very wide definition of fixed or moveable structure following Wheeler v Copas
Here, C is a trespasser as they
do not have permission to be on D’s property (Tomlinson v Congleton BC) because
Here D is the occupier as they
have control of the
Here D is the occupier of premises
as the
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.
Here C’s injury was caused by a danger due to
the state of D’s premises because
Under Section 1(3)
the occupier will only owe a duty of care if 3 conditions are met
Firstly D must be
aware of the danger or have reasonable grounds to believe it exists Rhind v Astbury Water Park.
Here D was aware of the danger
as
Secondly 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 - Higgs v Foster there is no duty to an unexpected trespasser.
Here D knew that C was in or may come into the building site
because
Thirdly
the risk is one against which D may be expected ton offer some protection t c - Ratcliff v McConnell. They do not have to offer protection in respect of obvious danger s. If D has offered all reasonable protection it is unlikely a duty will be owed.
Thirdly
the risk is one against which D may be expected ton offer some protection t c - Ratcliff v McConnell. They do not have to offer protection in respect of obvious danger s. If D has offered all reasonable protection it is unlikely a duty will be owed.
Here D is/is not expected to
offer protection against the danger because
To conclude all 3 conditions are met so
D will owe a duty of care to C
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
This is an objective
test and D’s standard of care will be compared to the reasonable occupier Vaughan v Menlove, Bylth v Birmingham waterworks or reasonably competent professional occupier Bolam v Friern HMC
Factors may be considered such as the
degree of the danger and the cost practicality of reducing the risk of harm Tomlinson v Congleton BC and the age of the trespasser especially where there is an allurement Jolly v Sutton)
The occupier does not have to offer protection to
adults in respect of obvious dangers as in Ratcliff v McConnell and this may apply to older children Baldaccion v West Wittering
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
Here has fallen below the standard of care of a reasonable occupier
because
To conclude D
will
