OLA - Non-visitors
Non-visitors
Duty of care to non-visitors
Warnings
Defences
Would be a trespasser and until 1984, any accident they were involved in would have been dealt with by common law which only had limited duties on occupiers to take safety precautions to protect them.
Lord Moulton's quote in Addie & sons Ltd v Dumbreck (1929) was "no duty to take reasonable care for protection pr even protect him from danger... came on to the premises at own risk ... occupier liable only where injury is due to some wilful act involving something more than the absence of reasonable care"
Basically occupiers were only liable if they purposely harmed the trespasser
Who is a non-visitor
Old law classed anyone on a premise without permission as a trespasser and the 1984 Act calls them non-visitors but this means the same
People who go onto land without permission either accidentally or on purpose
Can become a non-visitor from a visit if they extends their right and snoop around parts of a premise without permission
s.2(4) states that occupiers have a duty to take such care as is reasonable in all circumstances of the case to see that the non-visitor does not suffer injury on the premises by reason of the danger concerned
Tomlinson v Congleton
Claimed that the beach should have been planted over but the HOL disagreed saying that the duty was to do what was reasonable which the defendants did by putting signs up and there was a social value to allow access to it for the public who would use it responsibly and it would cost more to make the beach unusable
Child non-visitors are expected to be treated with a greater precaution than adult ones under 1984 Act as well.
Keown v Coverty Healthcare NHS Trust (2006)
COA held that precautions considered reasonable for the safety of adult non-visitors might not be sufficient for children
The duty owed by occupiers under both Acts are similar but there are two major differences
when the duty applies
the type of harm covered
Under the 1957 Act an occupier always owes a duty of care to a visitor, however, under the 1984 Act a non-visitor must prove 3 extra elements before a duty will apply to them. These are:
the occupier knows or has reasonable grounds to believe that the non-visitor is in the vicinity of the danger or might come into the danger
the risk is one against which in all the circumstances of the case, the occupier may reasonably be expected to offer the non-visitor some protection
the occupier is aware of a danger on their premise or has reasonable ground to believe that a danger exists
Rhind v Astbury Water Park (2004)
Container was lying on the bed of a lake but was invisible from the surface - COA held that the defendants did not know about it nor have reasonable grounds to think it was there so they weren't liable
If it is not clear then the court will look at what the defendant did know to determine if there was a reasonable ground
Swain v Natui Ram Puri (1996)
Claimants claimed that the defendant must have known children might try to climb onto the roof and breached duty by taking no precautions - COA disagreed stating that "reasonable grounds to believe" meant that defendants had to know about actual facts which provided grounds for belief not that in the circumstances they ought to have known. No evidence of previous trespass & having fences around the factory that were high there was no reasonable ground to believe the children would get in
Higgs v Foster (2004)
Judge found that even though the defendants knew of the put and the premise was only partly fenced, the pit was right at the back of the premise and had nothing there to attract anyone so it was not reasonably foreseeable that someone would trespass there
Scott v Associated British Ports (2000)
Court held that the defendant did not owe a duty to the victim of the first accident because at the time, they were unaware that children were getting onto the land and playing on the railway. After the first incident, they were aware. They had reasonable grounds to suspect a risk for non-visitors and owed a duty for the second victim. They had not breached a duty though as it was believed the boys would have found a way onto the land whether they did the precautions or not.
Courts consider costs and practicality of taking precautions and the effect of activities taking place on the premises
Tomlinson v Congleton
Held: "unjust that the harmless recreation of responsible parents and children ... should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them"
The Act provides that a warning about the risk can be enough to count as taking reasonable care.
s1(5) states that an occupier can fulfil their duty towards non-visitors by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk
Under 1984 Act all the occupier has to do is take reasonable steps to warn the claimant of the danger or discourage them from taking said risk
1984 Act only provides one defence: Volenti
s.1(5) states that "no duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person".
Ratcliff v McConnell (1999)
COA held no duty was owed as the claimant knew of the dangers due to the sign and took the risk anyways