Occupiers' Liability Act 1984 - Trespassers

OLA 84 Background

Introduced to provide a limited statutory duty of care towards trespassers.

Original law was that there was no liability to trespassers from common law as seen in (Addie v Dumbreck). SC overused this in (British Railways Board v Herrington) using their practice statement.

Occupier

Definition (AO1)

Same meaning as OLA 57 - Sufficient degree of control

Premises

Definition (AO1)

Same as 57

Who is owed the duty under OLA 1984

Under s.1(1)(a) of OLA 84 -

A duty is owed to persons other than a visitor in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or the things done or omitted to be done on them.

Other than a visitor = A trespasser (without permission) - Irrelevant whether a person knows that he is trespassing.

A lawful visitor can turn into a trespasser by exceeding their permission.

Who is a trespasser

Other than a visitor = A trespasser (without permission) - Irrelevant whether a person knows that he is trespassing (Strict liability tort).

A trespasser can be said to be any person:

• Who enters without invitation or

• Whose presence is either unknown to O, or known to the occupier but he has objected in practical way such as locking a gate or by giving a verbal warning.

A lawful visitor can turn into a trespasser by exceeding their permission.

• In Space

• In time

• In purpose (Calgarth)

When will the duty arise

Rule (AO1)

Unlike 57, this act is not automatic and is subject to certain conditions in s.1(3) where a duty will arise if the occupier is:

a) Aware of the danger or has reasonable grounds to believe that it exists

b) Knows or has reasonable grounds to believe that the trespasser is in or 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.

All 3 criteria must be met to establish a DOC

Danger must arise from premises not from activity (Keown v Coventry NHS Trust)

Knows or has reasonable grounds to believe that the trespasser is in or may come into the vicinity of the danger

Case (AO3)

(White v St Albans City Council)

The reasonable O must have actual knowledge from which a reasonable person would infer that the danger exists, and that someone else is or may come into its vicinity.

The risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.

Case (AO3)

(Donoghue v Folkestone Properties)

C, who was trespassing, dived into a harbour owned by the D in the middle of night in winter and broke his neck.

Held that D did not owe a duty as he had no reasonable ground to believe that anyone would be in the vicinity of the danger, because it could not be anticipated that anyone would want to dive into a harbour at that time of the night and at that time of the year

What is the extent / Scope of the duty

Rule (AO1)

Under s.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”

No liability for damage to property.

What is the extent / Scope of the duty

Case (AO3)

(Ratcliff v McConnell)

C climbed the fence at his college in order to access the open air swimming pool at night. He jumped in to shallow water and was seriously hurt.

Held there was no requirement to warn adult trespassers of obvious risks such as a swimming pool having a shallow end.

Breach of Duty - Standard of Care

Definition (AO1)

s.1(4) requires the O to take such care as is reasonable in all the circumstances.

(Or has taken enough precautions to prevent trespassers)

Courts are generally in favour of the O.

Breach of Duty - Standard of Care

Factors to consider (AO2)

• Nature of the danger (i.e. hidden or obvious and the degree of danger)

• The age of the trespasser (i.e. adult or child)

• Nature of the premises (how dangerous are they? a private house? an electrified railway line

• The extent of the risk (i.e. is there a high or low likelihood of injury)

• The gravity of the potential injury

• The cost and practicability of precautions (i.e. how easy would it be to remove or reduce the risk and what would such measures cost?)

• The foreseeability of the trespasser (i.e. the more likely people are to trespass. the more precautions must be taken)

Breach of Duty - Standard of Care

Case (AO3)

(Platt v Liverpool City Council)

C was killed when the derelict building in which he was trespassing collapsed. D had secured the building with an eight-foot-high metal fence with wooden posts sunk in concrete.

Held that D was not liable as there was nothing more they could reasonably have done.

Breach of Duty - Warnings

Definition (AO1)

Under s.1(5)

Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, 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.

Breach of Duty - Warnings

Case (AO3)

(Westwood v Post Office)

A PO employee was injured when he entered as a trespasser an unlocked room which had a notice on the door saying ‘Only authorised attendant is permitted to enter’. The notice was held to be a sufficient warning to an adult.

Breach of Duty - Children

Definition (AO1)

As with 57 Act, warnings may be insufficient to avoid liability regarding children.

Since children can be unpredictable, it is not necessary for an O to be able to foresee the extent of the harm a child might come to.

Breach of Duty - Children

Case (AO3)

(Jolley v Sutton London Borough Council)

D left a dangerously derelict boat abandoned on a beach that they owned. Two boys decided to restore it but became injured.

Held that only the kind of injury need be foreseeable, not what the children were doing when it happened.

Damage (Causation)

Rule

Same as negligence

Defences

• Consent (Ratcliff v McConnell)

• Exclusion Notices

• Warnings

• Contributory negligence. (Young v Kent County Council)

Damages (Compensation)

Rule (AO1)

• A trespasser may only claim for personal injury suffered,

• not property damage - s.1(8)