Law, Occupiers Liability Act 1984: Trespasser

Is there a duty?

An occupier… 

 

 

 

 

 

A non-lawful visitor/trespasser… 

 

 

 

 

 

Premises… 

 

Claimant’s injury is due to the state of the premises s.1(1) 

Consider Keown v Coventry HCT - An 11-year-old boy climbed the outside of a fire escape at hospital premises, fell and suffered serious injuries. The Court of Appeal held the NHS Trust not liable under the Occupiers' Liability Act 1984, finding the danger arose from the boy's own activity rather than from the state of the premises.

Here in this case…….

Is there a duty under section 1(3)(a)(b) and (c)? 

Section 1(3)(a) - The occupier is aware of the danger or has reasonable grounds to believe it exists. This is a subjective test and is based on what the occupier knew

 

Section 1(3)(b) - The occupier knows or has reasonable grounds to believe that the other [the trespasser] is in the vicinity of the danger. This is a subjective test and is based on what the occupier knew. 

 

Section 1(3)(c) - The risk is one against which, in all the circumstances of the case, he/she may reasonably be expected to offer the other some protection.  

This is a mixture of subjective and objective tests. All the circumstances of the case could include: 

• The purpose of the entry 

 

• The age and capabilities of the trespasser 

 

• The financial resources of the occupier 

 

• The nature of the premises and what precautions were practical.                       

The duty under section 1(4) 

What is the duty? 

To take such care that is reasonable in ALL circumstances of the case to ensure a trespasser doesn’t become injured whilst on the premises

Breach 

What standard must defendant occupier reach? (Blyth) 

The occupier must reach the standard of a reasonable occupier (Blyth)

When deciding this the court will look at the usual risk factors, and others: 

• Likelihood of someone trespassing (here the court would also consider the attractiveness of the danger – it was an allurement, and the likely age of any trespassers); 

• Seriousness of potential injury; 

• Cost and practicality of taking precautions; 

• Obviousness of the danger. 

 

Apply the risk factors – were there any reasonable steps that defendant occupier could have been taken? 

Here, defendant … 

Warnings or discouragement under s.1(5) 

Note under S.1(5) the duty may be discharged by taking reasonable steps to give a warning or to discourage people from taking the risk. 

Here, the defendant had warnings (add detail if relevant), or discouraged trespasser by… 

Defences 

Contributory Negligence (Law reform act 1945)

Consent (Volenti)

Remedies 

The claimant’s remedy is damages. The occupier is liable for damage including death and personal injury, but not damage to property (s.1(8)).