Occupiers liability (trespassers)

What tests remain from the 1957 Act?

The test for premises, occupier, and lawful visitor remains the same as the 1957 Act.

When does the 1984 Act apply?

The 1984 act applies where the visitor is a trespasser - A trespasser is a person who is not a lawful visitor.
They have a general duty under S1(1(a) if the person is injured due to any danger as a result of things done or omitted to be done on the premises - Notice, this impose a general duty to protect trespassers from specific dangers on the land; therefore, the danger must be identified in advance.

When will a duty of care be owed?

A duty is only owed under S 1(3) OLA 1984 if is aware (subjective) or has reasonable grounds to believe both that:
- 1(3)(a) OLA 1984 - the danger exists.
- 1(3)(b) that another was in the vicinity of the danger or may come into that vicinity.
- Once this is established the final test that must be satisfied is:
- 1(3)(b) - the risk is one in which all the circumstances, the occupier may be reasonably expected to offer some protection.

How to establish whether a danger exists or there is a reasonable ground (s) to believe it exits (S1(3)(a) OLA 1984

Rhind V Astbury water park - establishes the ratio that the occupier does not need to go and inspect their land to find dangers.
However, once it is known, or based on what D knew they had reasonable grounds, it will then move to the next question.

How to establish whether the occupier was aware or had reasonable grounds to believing the danger existed S(1)(3)(b) OLA 1984

Donoghue V Folkstone set the ratio that the courts will consider the time of the trespass (both in terms of the hour and time of year) basically the occupier will only owe a duty of care if they were aware of the trespassers presence.
Higgs V Foster sets the ratio that a risk a person may trespass does not automatically satisfy this requirement. There must be separate evidence D knew or had reasonable grounds to know of the potential trespassers (however D having a security camera up, or some form of device, doesn’t mean that they know of will have known of the trespassers presence).

How do the courts establish whether the risk was one a person should guard against?

This moves back to an objective test and the occupiers view is no longer relevant.
Ratcliffe V McConnell: - The courts have made clear that there’s no need to warn against obvious dangers. In Ratcliffe, the claimant dived into a shallow pool - after hours - and was injured as a result.
Tomlinson V Congleton Borough Council: - The courts will also take into account social and economic factors (would imposing the duty mean that many people lose out on a benefit?)
Note, a person’s age is not taken into account in establishing whether the risk us one to be guarded against - this is usually relevant in the context of children who may be using the premises in an unexpected way which would not originally be dangerous.

How to discharge the duty; the occupier must prove they kept the trespasser reasonable safe from the danger

As in Tomlinson V Congleton Borough Council the court will consider: the nature of the premises (What is the premises?), the degree of the danger (How dangerous is it?), the practicality of taking precautions (How easy would it be to do?) and the age of the trespasser (How old are they?, this relates to children).

What are the effects of warning notices?

A warning notice can discharge the duty if in all the circumstances it warns of the danger or in some way discourages the taking of the risk.
A warning sign on an unlocked door is enough for an adult, but may not be in the context of children (given their age and understanding).

Possible defences