Occupier's Liability(Trespasser)

Occupiers' Liability is governed by the Occupiers' Liability Act 1957 and the Occupiers' Liability Act 1984.

C may bring an action against D under the OLA 1984, prompted by British Railways Board v Herrington which established a 'duty of common humanity' owed to a trespasser.

A trespasser is not defined in the Act, the common law definition established in Addie v Dumbreck is used: "someone who goes on land without any sort of permission and whose presence is unknown to the occupier or, if known, is objected to".

A lawful visitor under the 1957 Act can become a trespasser when they go beyond their permission.

Here, C is a trespasser as they do not have permission to be on D's property, as inTomlinson v Congleton BC, because [application]

D must be the occupier, with control of the premises, as in Wheat v E. Lacon and Co. Here[application]

'Premises' must fall within the very wide definition following Wheeler v Copas. Here, [application]

Under Section 1(1) of the OLA 1984 a duty of care is owed by an occupier to a trespasser in respect of injury caused by a "danger due to the state of the premises" set out in Keown vCoventry NHS Trust. Here[application]

Under Section 1(3), the occupier will only owe a duty of care if 3 conditions are met:

Firstly, D must be aware of the danger or have reasonable grounds to believe it exists, setout in Rhind v Astbury Water Park.Here[application]

Secondly, D must have known or had reasonable grounds to believe that was in, or may come into, the vicinity of the danger, as in Higgs v Foster. There is no duty to an "unexpected trespasser".

Thirdly, the risk is one against which D may be expected to offer some protection to C, as in Ratcliff v McConnell. They do not have to offer protection in respect of 'obvious dangers'. Here[application]

To conclude, all 3 conditions are met, so D will owe a duty of care to C.

Under Section 1(4) the occupier must "take such care as is reasonable in all the circumstances" to prevent injury to trespassers "by reason of the danger concerned"

This is an objective test and D's standard of care will be compared to the reasonable occupier (Vaughan v Menlove, Blyth v Birmingham Waterworks) or reasonably competent professional occupier (Bolam v Friern Barnet HMC).

Factors may be considered such as the degree of danger and the cost and practicality of reducing the risk of harm, as in Tomlinson v Congleton BC, and the age of the trespasser especially where there is an allurement, as in Jolley v Sutton.

The occupier does not have to offer protection to adults in respect of 'obvious dangers', as in Ratcliff v McConnell, and this may apply to older children as in Baldaccino v West Wittering.

The occupier is entitled to expect that a trespasser will not engage in foolhardy activities, or where expertise should make them aware of the danger, as in Donoghue v Folkestone Properties. Here[application]

Under Section 1(5), an oral or written warning can be a full defence if it is effective, as in Westwood v Post Office. A warning may be less effective in respect of a child, depending on their age and understanding.

Here [eg. a small notice not an effective warning with regard to a child of 8 when the climbing frame was so dangerous].

Volenti non fit injuria (consent) is a full defence under Section 1(6), where the claimant fully understood the nature of the risk rather than just being aware of its existence, andexercised free choice, as in Ratcliff v McConnell.

IF RELEVANT: Here, [eg. C did fully understand the nature of the risk when he swam in the pool and clearly exercised free choice when accepting the risk, so D can rely on the defence of volenti].

TO CONCLUDE, [eg. D will / will not be liable BUT the defence of.... may apply].

As a REMEDY, under Section 1(8), a claim can be made for personal injury, not damage to property.

For C's personal injury [say what it is] the court may award compensatory damages under the DAMAGES ACT 1996, where the aim is to put the claimant in their pre-tort position.

Pecuniary (financial) losses will be claimed, such as medical bills. Non-pecuniary (nonfinancial) losses will be claimed, such as loss of amenity for the loss of chance to enjoy hobbies/activities.

General damages (cannot be precisely calculated) may be awarded for loss of amenity, painand suffering, a 'tariff' award for the injury itself and future loss of earnings and medical care after the trial. Special damages (can be calculated precisely) may be awarded for loss of earnings and medical care up to the trial.

C is under a duty to mitigate loss, which means to keep the loss to a reasonable level by seeking prompt medical treatment.Here[application]