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occupier's liability (1984) - Coggle Diagram
occupier's liability (1984)
s.1(3) OLA84 - "an occupier of premises OWES A DUTY OF CARE to another (not being his visitor)"
TRESPASSER: person who has NO PERMISSION to be on OCCUPIER'S PREMISES or a LAWFUL VISITOR who has gone BEYOND their PERMISSION to be on the premises - outstayed their welcome, been told to leave, gone somewhere in premises they aren't allowed
TOMLINSON v CONGLETON BC (2003): paddled in lake (lawful visitor) BUT dived in and started swimming (trespasser)
ADULT TRESPASSERS
TIMING - DONOGHUE v FOLKESTONE PROPERTIES (2003) - claimant injured when trespassed onto a slipway harbour - dived into sea and hit head on grid pile - pile would have been VISIBLE at LOW TIDE (took place in winter at midnight) - held that OCCUPIER DID NOT OWE A DUTY OF CARE under OLA84 as they could not EXPECT a trespasser would be present (to then jump into the harbour at that time of day and year)
NO REASON TO SUSPECT PRESENCE OF TRESPASSER - HIGGS v FOSTER (2004) - police officer investigating crime entered occupier's premises to carry out surveillance - fell into uncovered inspection pit - injured - judged as a 'trespasser' - OCCUPIERS NOT LIABLE as, although they knew the pit was a POTENTIAL DANGER, they could NOT HAVE ANTICIPATED the officer's PRESENCE on PREMISES or VICINITY OF IT
OBVIOUS DANGER - RATCLIFFE v MCCONNELL (1999) - student climbed fence of college's empty swimming pool at night - injured - CoA decided OCCUPIER NOT REQUIRED to WARN adult trespassers of the RISK of injury from OBVIOUS dangers - no hidden danger in this case as it was well known that pools have deep water and diving WITHOUT CHECKING the depth is DANGEROUS
NOT AWARE OF DANGER/NO REASON TO SUSPECT DANGER EXISTS - RHIND v ASTBURY WATER PARK (2004) - claimant ignored notice saying 'private property: strictly no swimming' - jumped into lake and was injured - OCCUPIER DID NOT KNOW OF THE SUBMERGED FIBREGLASS CONTAINERS AT THE BOTTOM OF LAKE - NO OBLIGATION under s.1(3)(a) to check for HIDDEN DANGERS - swimming was PROHIBITED ANYWAY
DO NOT NEED TO SPEND MONEY ON MAKING PREMISES SAFE FROM OBVIOUS DANGERS - TOMLINSON v CONGLETON - warning signs posted PROHIBITING swimming and diving in lake - council KNEW this was being IGNORED - decided to make lake INACCESSIBLE to public, but the work was delayed due to LACK OF FUNDS - claimant dived and swam in lake and suffered injuries - claim for compensation FAILED:
in order to SUCCEED under OLA84, had to be DANGER due to STATE of PREMISES, or things DONE, or OMITTED TO BE DONE - here, danger was due to claimant swimming, not the state of the premises
it was NOT REASONABLE for the council to SPEND A LOT OF MONEY PREVENTING VISITORS suffering injuries by an OBVIOUS DANGER - here, the council would NOT HAVE BREACHED DUTY even if it was a lawful visitor
trespassers had to take SOME RESPONSIBILITY for their actions
DUTY OWED TO TRESPASSER + WHEN THAT DUTY IS BREACHED
s.1(1)(a)84 - a duty applies towards people other than lawful visitors (covered by 57 ACT) for: "injury in the premises by reason of DANGER due to the STATE of the premises or things DONE or OMITTED to be done on them"
damage to property is NOT COVERED, reflecting the view that TRESPASSERS deserve LESS PROTECTION than LAWFUL VISITORS - OCCUPIER owes a DUTY OF CARE under s.1(3) if:
they are AWARE of the DANGER or have REASONABLE grounds to BELIEVE it exists
THEY KNOW, or have REASONABLE GROUNDS TO BELIEVE that the OTHER PERSON is in the VICINITY of danger concerned, or that they might COME INTO VICINITY of DANGER
they may be expected to protect the other person against the risk (TOMLINSON v CONGLETON BC - claimant has FREELY ACCEPTED RISK OF INJURY while swimming - council NOT EXPECTED TO PROTECT HIM)
duty owed under s1(4) is to: "take SUCH CARE as is REASONABLE to see that he [the trespasser] is NOT INJURED by reason of the danger"
STANDARD OF CARE is OBJECTIVE - greater degree of risk, the more precautions the occupier will have to take: NATURE OF PREMISES, DEGREE OF DANGER, PRACTICALITY OF PRECAUTIONS, AGE OF TRESPASSER
WARNINGS
s 1(5) provides that the OCCUPIER can DISCHARGE HIS DUTY to the TRESPASSER by giving a WARNING of DANGER by in some way discouraging the taking of risk
WESTWOOD v POST OFFICE (1973) - adult employee injured when he entered an unlocked room which had a WARNING of DANGER outside the door - post office NOT LIABLE as the NOTICE was SUFFICIENT WARNING to an adult
warnings will be a SUFFICIENT DEFENCE against a CHILD TRESPASSER but it depends of the age and understanding of the child
DEFENCES
VOLENTI
COMPLETE DEFENCE - if successfully argued, D will NOT be liable to pay damages to C C has FREELY ACCEPTED to run the RISK of INJURY while on the OCCUPIER'S PREMISES - defence is allowed by s 1(6) OLA84 if trespasser APPRECIATES NATURE AND DEGREE of RISK, more than just its existence
CONTRIBUTORY NEGLIGENCE
PARTIAL DEFENCE - occupier will argue that the trespasser is PARTLY responsible for the injuries they have suffered while on the premises - if successfully argued, amount of compensation will be REDUCED by an appropriate amount
CHILD TRESPASSERS
KEOWN v COVENTRY HEALTHCARE NHS TRUST (2006) - child fell from fire escape from exterior of hospital when showing off to friends - CoA held as he APPRECIATED THE DANGER, it was not the STATE OF THE PREMISES that was the problem, but the boy - HOSPITAL NOT LIABLE as there was NO DANGER due to the STATE of the PREMISES
BALDACCINO v WEST WITTERING (2008) - child climbed navigational beacon sited off a beach as the tide was ebbing - dived off beacon suffering injuries - was a LAWFUL VISITOR of the beach BUT became a TRESPASSER to the BEACON - claim FAILED as there was NO DUTY on the OCCUPIERS to WARN AGAINST OBVIOUS DANGERS, and then injuries DID NOT RESULT FROM STATE OF PREMISES
WHAT WAS DONE BEFORE THE ACT?
Addie v Dumbreck (1929) - No duty to keep trespassers safe (incl children)
BRB v Herrington (1972)
Children trespassing, playing on railway, hole in fence, BRB knew there was a hole, did not do anything about it, could have been fixed quickly and cheaply
Occupiers owes everyone (incl trespassers) a “common duty of humanity” - if you have an opportunity to protect then you should take that option
Means that if O knows a T is or could be in danger they should act to reduce the danger
Bird v Holbrook (1825) - Occupiers cannot set traps for trespassers!