OLA 1984
WHEAT V LACON defines an occupier - “if a person has any degree of control over the premises it is enough [to make them an occupier]
A03
original common law- trespassers not entitled to compensation, shown in ADDIE V DUMBRECK where there was no liability to a child killed when trespassing on a col one unless acting maliciously or recklessly
this was overruled (practice statement ‘57) in BRITISH RAILWAYS BOARD V HERRINGTON 1972 where occupier owed child trespasser a common duty of humanity if knew of danger and that trespass was likely
‘common duty of humanity’ was unclear- and so OLA 1984 was passed
DEFINITION OF A TRESSPASSER is under s1(3) of 1984 act - “an occupier of premises owes a duty to another (not being his visitor” so therefore a tresspasser is:
a person who has no permission to be on the occupiers premises, or
a lawful visitor who has gone beyond their permission to be on the premises- they have outstayed their welcome, they have been told to leave or have gone into an area where they aren’t supposed to be TOMLINSON- when he paddled in the lake, he was a lawful visitor, when he dived in and started swimming, he was a tresspasser.
under s1(1)(a) OLA 1984, a duty applies towards people other than lawful visitors (covered by ‘57 act) for: ‘injury on the premises by reason of any danger due to the state of the premises or things done or omitted to be done to them’
1984 only compensates personal injury and not property, reflecting view that trespassers deserve less protection than lawful visitors, by s(8) occupier will not be liable for any property damage, e.g clothes
STRICT LIABILITY TORT
Does the occupier have a duty of care?
Such a duty is not automatic: it arises only where the conditions set out in s1.3 are fulfilled
s1.(3)(a) occupier was aware of the danger or had reasonable grounds to believe it existed (Revill v Newbery, Rhind v Astbury Water Park)
s1.(3)(b) occupier knows or had reasonable grounds to believe that someone is in the vicinity of danger or may come into the vicinity of danger (donoghue, swain v natui ram puri)
s1.3( c ) the risk is one where it would be reasonable to expect the occupier to offer some protection (tomlinson, ratcliffe)
The duty owed under s1(4) is to: ‘take such care as is reasonable in the circumstances to see that he [the tresspasser] is not injured by reason of the danger’.
The standard of care is objective. What is required of the occupier depends on the circumstances of each case; the greater degree of risk, the more precautions the occupier will have to take. some factors to take into account include:
nature of premises
degree of danger
practicality of taking occupations
age of tresspasser
DEFENCES
Section 1 (5) provides that the occupier a discharge his duty to T by giving a warning of the danger, or in some way discouraging taking of the risk. In westwood v the post office 1973, in an action under a different act, an adult employee pf the P.O was injured when he entered an unlocked room which had a warning of danger on the outside. P.O was not liable as the notice was a sufficient warning to an adult.
Whether a warning will be sufficient against a child tresspasser may depend on the child’s age and understanding.
consent- s1 (6) RATCLIFF V MCCONNELL
nothing wrong with premises KEOWN
obvious risks BALDACCINO V WEST WITTERING
SWAIN V RAM PURI
facts- 9year old yo injured when climbed onto occupiers roof and fell.
principle- occupier must have reasonable grounds to believe that someone is in the vicinity of danger or may come into the vicinity of danger (s1.3b)
RATCLIFF V MCCONNELL
facts- 19year old student climbed fence of his corgis open-air swimming pool late at night and he dived into pool, hit his head on bottom and was seriously injured
principle- occupier does not have to warn adult trespassers of risk of injury against obvious dangers
DONOGHUE V FOLKESTONE PROPERTIES
facts- tresspasser seriously injured by diving into harbour at night in winter
principle- occupier does not have to warn tresspasser against obvious risks if the tresspasser enters at unforseeable time of day or year
TOMLINSON V CONGLETON BOROUGH COUNCIL
facts- trespasser injured swimming in lake
principle- occupier does not have to spend lots of money making premises safe from obvious dangers
RHIND V ASTBURY WATER PARK
facts- tresspasser injured by submerged objects in lake
principle- occupier does not owe a duty if he or she is unaware of the danger
KEOWN V COVENTRY HEALTHCARE NHS TRUST
facts- boy injured when falling of fire escape
principle- occupier not liable to child tresspasser if there is no danger from the state of premises
BALDACCINO V WEST WITTERING
facts- young boy climbed and dived off a beacon sited of a beach suffer serious injuries, lawful visitors to beach, tresspasser to beacon
principle- no duty on occupiers to warn against obvious dangers and injuries did not result from state of premises
SCOTT AND SWAIGNER V ASOCIATED BRITISH PORTS
HIGGS V FOSTER
facts- police officer fell into inspection pit
principle- occupier does not or a duty to trespassers he or she does not expect to enter premises
REVILL V NEWBERY
A 79 year old man, Ted, suffered a number of thefts from his allotment, so one night he sat in his shed with a loaded shotgun. When he heard noises outside the shed he poked the shotgun through a hole in the door and pulled the trigger, wounding P in the arm and chest. It was conceded that P was a trespasser and who intended to burgle the shed. P sued for his injuries and won £4000, his contributory negligence having been assessed at two‐thirds. D knew there was an imminent danger (a spray of shot) on his premises, and knew P was in the vicinity (even if not in the direct line of fire), and that was enough for him to owe a duty of care under 1984 act