Occupiers Liability Trespasser

Intro

C may have a claim under the Occupiers’ Liability Act (OLA) 1984 for his injuries. OLA 1984 covers trespassers

Occupier

It must be proved there was an occupier: someone who has sufficient control over the premises (Harris v Birkenhead).

Trespasser

It must be proved there was a trespasser: a person who has exceeded their permission to be on the premises (The Calgarth)

Premises

It must be proved the damage occurred on D’s premises: S.1(2) defines premises as any land and buildings including any fixed or moveable structure.

State of the premises

The injury to C must be due to the state of the premises s.1(1) (keown v coventry)

Does a duty arise under s.1(3)

To establish whether a duty arises, 3 conditions must be met under s.1(3).
The occupier is aware of the danger or has reasonable grounds to believe it exists (s.1(3)(a)). This is a subjective test and is based on what the occupier knew (Rhind).
The occupier knows or has reasonable grounds to believe that the other is in the vicinity of the danger (s.1(3)(b)). This is a subjective test and is based on what the occupier knew (Swain).
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 (s.1(3)c)).This is a mixture of subjective and objective tests (Tomilson).

Duty under s.1(4)

Under s.1(4) ‘the duty is to take such care as is reasonable in all the circumstances of the case to see that the other does not suffer injury on the premises by reason of the danger concerned.’

Breach

D is expected to reach the standard of the reasonable occupier carrying out the activity (Blyth).

risk factors

Warnings or discouragements

Under s.1(5) the duty can be discharged by taking such steps as is reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.

Defences

Contributory negligence or consent
Ratcliff v Mcconnell - c climbed over a fence to get in and ignored signs prohibiting use of the pool. C had consented to the risk as he was aware of it and had accepted it.

Remedy

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)).