OLA 1984

s1(8)

Occupiers have No Duty for the Property of Trespassers

British Rail Board v Herrington

Introduced the Common humanity owed towards trespassers + Lead to the introduction of the OLA 1984

A six year old boy was badly burned when he trespassed onto an electrified railway line through vandalised fencing. The British Rail was aware of gaps in the fencing and that children played in the area. The HOL established a duty of common humanity owed when an occupier knew of danger and of the likelihood of the trespass

Who is a Duty owed to

What section states this

1(1)(a)

1) Trespassers

2) Those who exceed their permission

Can only claim for Personal Injury not Property damage

Revill v Newbery

Duty is owed to Trespassers Breaking in with Criminal Intent

Requirements to owe a Duty of Care to a Trespasser

s1(3)(b)

a) He is Aware /has Reasonable Grounds to believe the Danger exists - Rhind v Astbury

b) He knows/has Reasonable Grounds to believe the other is in or may come into the Vicinity of the Danger - Higgs v Foster

c) The risk is one which, in all the circumstances of the case, he may be expected to offer the other some protection from - Tomlinson v Congleton

Donoghue v Folkestone - Time of day/year can also be considered

Greater the Risk = Greater the Precautions necessary

Donoghue v Folkestone Properties

Time of Day + Year the accident happened is relevant when considering liability

1(3)(b)

Case

Occupier must know or have reasonable grounds to believe a trespasser is in or may come in the vicinity

Higgs v Foster - No duty because D Did not know or have reasonable grounds to believe trespasser would be there

What actually is the duty owed under 1(4)

To "Take such care as is reasonable in the circumstances to see that a trespasser is not injured by reason of the danger"

Ratcliff v McConnell

Not Required to warn adult trespassers of Obvious Dangers

What did Tomlinson v Congleton Establish

Relates to 1(3)c

1. Risk must be one D is reasonably expected to offer some protection

2. Occupier is not expected to spend lots of money to make premises safe from Obvious Dangers

Reinforces Ratcliffe v McConnell

Higgs v Foster

1(3)(b)

Occupier will not be liable if he had no reason to suspect the presence of a trespasser

Rhind v Astubury

1(3)(a)

Occupier must be aware of the danger to be liable

O did not know of the submerged container resting at the bottom of the lake. Rhind ignored the warning signs and jumped in the lake and was injured by objects submerged below the surface. The occupier did not know of the danger no duty was owed

Keown v Coventry NHS

1. Child must appreciate danger

2. Danger must arise from State of Premises

An 11 year old boy climbed a fire escape to show off to his friends and fell.. The COA held that, since the child appreciated the danger, it was not the state of the premises at fault but the child. There was no danger due to the state of the premises and the hospital was not liable.

Baldaccino v West Wittering

There is no duty to warn children against obvious danger

Two cases showing the approach to children is the same as for adults

Keown v Coventry NHS

1. Child must Appreciate the Danger

2. Injury must arise from State of the Premises

Baldaccino v West Wittering - No duty to Warn Children against Obvious Danger

Two cases show if the injury does not arise from the state of the premises, the occupier cannot be liable

Keown v Coventry NHS

Baldaccino v West Wittering

What are the defences to claims by a trespasser

1. Contributory negligence

2. Consent (Volenti) s1(6)

3. Warning notice - s1(5) Westwood v Post office

Whether a warning is sufficient for a child trespasser is up to the age and understanding of the child

Children

Section + Cases

Same laws from s2(3)(a) OLA 1957 apply - Occupier must be prepared for children to be less careful

1. Glasgow Corporation v Taylor - Occupier is expected to guard against allurement

2. Jolley v Sutton - Not required to foresee exactly how harm may occur from Allurement

3. Phipps v Rochester - Parents are expected to supervise young children

Keown v Coventry

Baldaccino v West Wittering

Occupier

Same Definition as 1957 act

Wheat v E. Lacon - Occupier is someone who has sufficient control over the premises

- Can be more than one occupier

Harris v Birkenhead Corporation - Occupier means Legal Control even if not in Physical Possession of the premises at the time of incident

AMF International - Occupier is who has control of premises at the time of incident

Which section says Warning of the risk can remove liability

s1(5)

1(3)(c)

Case

3rd requirement for an occupier to be liable

The risk must be one D is reasonably expected to offer some protection + not risk from claimants own actions

Tomlinson v Congleton Borough Council - Risk was obvious, not expected to offer protection

1(3)(a)

Occupier must be aware of or have reasonable grounds to believe the danger exists

Rhind v Astbury