Occupiers' Liability

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Situation where C suffered an injury/property damage ON SOMEONE ELSE'S PREMISE as a result of the STATE/CONDITION of the premise

OLA 1957

section 2(1) imposes duty on occupier's by stating that occupiers owe their visitors a common duty of care

DUTY OF CARE

FIRST QUESTION - WHO IS THE OCCUPIER? WHO HAS SUFFICIENT DEGREE OF CONTROL?

Who can be liable under OLA 1957? - OCCUPIER OF THE PREMISES

section 1(2) does not define what an occupier is but refers to the law that was in place before the legislation was introduced

it was said that occupier is a person who would have been treated as an occupier by the existing common law

In accordance to Wheat v Lacon [1966], an occupier is a person with sufficient degree of CONTROL over the premises

FACT: D's company owed a bar which is managed by a manager, who had license to live upstairs. He rent a room out on short term basis but the visitor falls down from stairs & suffered an injury whilst on the premise

HELD: Owner of the bar was the occupier in those circumstances.

REASONING: In his contract with the manager, he retained an entitlement to go into the premise to repair. The duty to repair also meant that he had control of the premises, even though the manager was the one who lives there

Where you have got arrangements in place such as leasing arrangement, have to be careful of the terms of the contract

In Harris v Birkenhead Corporation [1976], you dont need to be in actual occupation to be deemed to be an occupier

FACT: D issued a compulsory purchase order on somebody’s house but took no steps to take the ownership of the property after the tenant moved out, causing the property to fall into a state of disrepair. A young child went in and injured himself.

HELD: D was deemed to be the occupiers from the moment the tenant had left

REASONING: D had the control from the moment the tenants left, even though they weren’t actually living there

Usually, the occupiers will always be the person who is in occupation (physically on the premise)

What you are looking for is not the person living there, but the person who has sufficient degree of control, which may, in unusual cases be someone other than the day-to day occupant

FACT-SENSITIVE !

Landlord

Landlord who grants license to occupy premises MAY retain sufficient control to be classed as occupier

More commonly, landlord will handover responsibility to the tenant, and the tenant will be the occupier

But in some cases, landlord may handover responsibility to the tenant for his individual room, but keep the responsibility by retaining the right to repair common area of the building. Tenant will be the occupier in his room; Landlord will be the occupier for the common area.

Independent contractor

These are people who take over the premise for a while

They can deem to be an occupier because they are in control of the premise

SECOND QUESTION - IS IT FIXED OR MOVEABLE STRUCTURE? WILL IT BE FRAMED AS A RESULT OF THE STATE OF THE PREMISES OF ACTIVITIES OF THE PREMISES?

What constitutes premises under OLA 1957? - PREMISES

covers not only permanent structure (eg. building, houses) but also structure of the land/land itself (Eg. scaffolding, fairground)

According to section 1(3)(a), it includes fixed or moveable structure

Those which has been deemed to be part of the premises and fall within the scope of section 1(3)(a) includes:

eg. vessel along the land, vehicle, aircraft

What does the premise concerned with? - STATE OF THE PREMISE

for moveable structure, D can be held liable under OLA 1957 for state/condition of the structure, but D cannot be held liable for the operation/activity of the structure

eg. LIABLE IF - an old car sitting there, fall into disrepair, posing a danger - this is state of the premises

eg. NOT LIABLE IF - started the car engine and started driving - this is activity on the premises

liability can only arise for the state of the premises, but cannot arise for the activities on the premises

Cunningman v Reading Football Club Ltd [1992]

FACT: While a policeman was policing a football match, one of the supporter picked up the brick and threw at him

HELD: - The injury was framed a result of the state of the premises, but not the action of the supporter - framed as an occupier's liability claim

REASONING: One of the wall in the football club had fallen into disrepair and the bricks were crumbling off, so the supporter could grab the brick and threw it at the policeman

Siddorn v Patel [2007]

FACT: C rent a part of the house, which the house’s garage has a skylight on the roof. C left her bedroom window on the first floor, danced on the garage roof, fell through the skylight and injured

HELD: The injury was framed as a result of the activity on the premises - wasn't framed as an occupiers liability claim

REASONING: C injured herself because she was dancing on the garage roof

THIRD QUESTION - WHO IS DEEMED TO BE A VISITOR? - THE PERSON WITH EXPRESS/IMPLIED PERMISSION TO BE ON THE PREMISES? DEEMED TO BE A VISITOR?

If so, is the permission conditional? Was C acting reasonably?

- common DOC is owed to visitors who had express or implied permission to be on your land

Who does OLA 1957 applies to? - Only to lawful visitor

* OLA 1984 applies to non-visitor, so, if C does not fall under the scope of OLA 1957, can consider under OLA 1984

section 1(2) does not define what a visitor is but refers to the law that was in place before the legislation was introduced

it was said that occupier is a person who would have been classed as in invitee or licensee by the existing common law

what it was essentially saying is visitor is someone either with express or implied permission to be on the premises

Is the visitor a child?

Historically, trespasser had very little protection but the court felt sympathetic towards children. Hence, in cases like Cooke v Midland Railway, the court entered legal fiction while dealing with cases involving children. If there was an allurement on the land that enticed children onto it, the court will deem that as an implied permission to enter

However, in Herrington v British Railways Board, the court introduced common duty of humanity and laid down minimal protection for trespassers including children. Besides, trespassers nowadays have legal protection under OLA 1984

Therefore, from that onwards, the court did not need to create a legal fiction anymore

Now, children will be treated in the same way as adult, in terms of assessing whether they have an express or implied permission

Is there express or implied permission?

EXPRESS

where it is very clear to both parties that the person has permission to be on the land

1. People who entered into the contract

contract is deemed to include an implied term that the occupier will owe the visitor a DOC, though contract itself may provide greater protection than the law

However, OLA 1957 only provides a benchmark. Occupier can extend or restrict it .

occupier will owe his visitor a DOC unless he restricts or extends it

2. People who is exercising a right conferred by law

section 2(6): they are to be treated as if have permission

eg. postman, emergency

IMPLIED

where there had been no agreement between the parties to enter the land

Implied permission through acquiescence

demonstrated in Lowery v Walker

FACT: D owned a field which he knew people commonly cut across to take a shortcut to the train station. One day, he put a horse in the field which turned out to injure a man using the shortcut

HELD: He was classed as visitor and found liable under OLA

REASONING: Implied permission is not automatically given just because the owner is aware of that someone is using his land without direct permission but had not done something straightaway. However, if over a period of time, the owner is aware of the entrance but failed to take sufficient step to prevent the person from doing so, the permission can become implied by acquiescence and they could be deemed to have impliedly consent to the person’s presence on their premise

THIS WILL ALWAYS BE QUESTION OF FACT

Is the visitor deemed to be acting reasonably?

however, this permission can be conditional

just because the occupier has allowed you onto his land does not mean he allowed you to do whatever you like to do

The Calgarth

Famous quotes "when you allowed a person into your house to use the stairs, you are not inviting him to slide down the bannister"

you can allow someone to be on your premises, and by doing so, expressly or impliedly, you are giving them visitor status, but that visitor status is not unrestricted, you can make that entry conditional"

Harvey v Plymouth County Council

FACT: D owned a disused land which was common for the locals to congregate. There was a shear drop on one edge of about 5 meters. There had been a fence but had gone into disrepair. A drunk man who was running across the land fell off the shear drop and injured.

HELD: C was not classed as visitor.

REASONING: D knew that people use it for recreational purpose, so there was an implied permission. However, the permission was implied that people were to act in particular way, it doesn't extend to acting recklessly by getting drunk and running jump at the end of the land.

However, if C was deemed to be acting reasonably, he will remain as a visitor

Gould v McAuilffe

FACT: C went into the pub to look for toilet, but he couldn't find it and went into the back area which wasn’t opened for public. He suffered an injury.

HELD: C was classed as visitor (but not trespasser)

REASONING: C was acting reasonably as he was just trying to find the toilet. So, even though he had gone into areas where he had no express or implied permission, he remained as a visitor.

Be mindful when looking at problem question, someone can enter as a visitor but could become a trespasser if they do something or go somewhere where they dont have permission to be, unless they are deemed to be acting reasonably

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Standard of care

Whether the occupier has taken sufficient step to make the visitor reasonably safe

* covers both personal injury and property damage

* it is the visitor who the occupier has to make reasonably safe, not the premise

- occupier is not obliged to make his premises completely safe, what he is obliged to do is to make his visitor reasonably safe

- if the occupier has a premise with danger, providing that he has taken reasonable steps to make his visitor safe when he is using your premises, that is enough to discharge his duty

According to section 2(2), DOC owned by occupier is to make the visitor reasonably safe for the purpose he has been allowed onto that premises

eg. D can have a quite dangerous premises, but did D make the visitor reasonably safe by putting sufficient fencing or giving sufficient warning

FIRST QUESTION - Whether an occupier has taken reasonable care to make his visitor reasonably safe, for the purposes that he was allowed to be on the premises

section 2(4) goes on to say, in deciding whether an occupier has been in breach of his duty, the court should have regard to all of the circumstances of the case

this is fault-based - all they are looking for is for the occupier to have taken reasonable care

We are essentially looking at the four factors in the context of negligence

Likelihood of harm - how likely is that an injury would occurred as a result of the state of the premises

Gravity of harm - how serious is the injury that might have occurred as a result of the state of the premises

Cost/practicability of precautions - what would have been the cost of preventing this injury of taking precautions

Social utility - what is the social utility of the way which the D was using his premise

Kiapasha (t/a Takeaway Supreme) v Laverton

FACT: This is a small takeaway. On a rainy night, the floor was wet. Someone who went in slipped and injured, and sued the takeaway.

HELD: The takeaway had taken sufficient step and was acting reasonably

REASONING:

Sufficient step?

The occupier had taken some steps to minimize the risk to the customers as they had put a mat and regularly cleaning the water on the floor. However, because of the weather, they were busy, there were limit on how much they could do that

Acting reasonably?

- Likelihood of harm - the risk of slipping was obvious because of the rainy weather

- Cost/practicability of precautions - the cost of precaution would essentially be to shut the shop - it would have been too much for the takeaway to do so* DISTINGUISH THE CASE if it is a HUGE takeaway store (eg. McDonald)

they have much better resource to spend on the precautions eg. hire more cleaners

court would have expected more

However, occupier is not under a duty to make visitor completely safe

BALANCE BETWEEN WHAT THE OCCUPIERS SHOULD BE DOING & WHERE THE RESPONSIBILITY OF VISITORS SHOULD LIE

Principle: Occupiers will rarely be under a duty to prevent people from taking inherent risks on their property

Trustees of the Portsmouth Youth Activities Committee (A Charity) v Poppleton

FACT: Occupier of the business in charge of climbing wall had out matting underneath. C climbed the wall but fell awkwardly and injured himself. C claimed that the matting wasn’t sufficient.

HELD: Claim failed.

REASONING:

Acting reasonably?

- Likelihood of the harm - the risk of hurting yourself was obvious to anybody. Anyone who falls from a height onto a mat at an awkward angle is likely to hurt himself

Principle: Court must take into account degree of care expected of visitor

Tacagni v Cornwall County Council

FACT: There had been a landslide on the land owned by the Council. On one night, C was feeling along the fence in order to catch up his boyfriend, but the fence came to an end and she tumbled and injured.

HELD: Claim failed.

REASONING: The court got to expect C to take some care for themselves in terms of how they use the land. It wasn't a reasonable way of using land as it was not predictable that people would scaling across the fence in order to find their way.

Principle: Existence of some harm does not mean the premises is not reasonably safe

Pierce v West Sussex County Council

FACT: While two boys were fighting in the school, one of them tried to punch the other but missed and hit the underside of the water fountain, and hurt his tongue.

HELD: Claim failed.

REASONING: Even though some steps could have been taken to make the water fountain safer, but it did not particularly have a sharp edge and wasn’t inherently dangerous.

LEGISLATION

Besides the 4 factors in the context of negligence, the court does single out a couple of factors that the court should take into account

However, these legislations are simply spelling out what the court will do in common law, they are simply reflecting reasonableness and reasonable standard of care within common law negligence

So, it is VERY IMPORTANT NOT TO EXAGGERATE THIS SECTION

BALANCE BETWEEN WHAT THE OCCUPIERS SHOULD BE DOING & WHERE THE PARENTAL RESPONSIBILITY SHOULD LIE

LEGISLATION

section 2(3)(a): When occupiers are considering whether their visitors are reasonably safe, if the visitors are children, they have to take into account of the fact that children will be less careful than adults

COMMON LAW

However, in some circumstances, occupiers have to take into account of parental responsibility

Phipps v Rochester Corporation

FACT: While the two young kids were on the way out to pick blackberries, they walked across a housing estate which was in development and the builders were digging trenches. The boy fell into the trench and injured.

HELD: Claim failed.

REASONING: Court felt that the parents should have taken responsibility as they should have supervised their children. Allowing their children to walk across a housing estate which has clear danger was unreasonable.

Bourne Leisure Ltd v Marsden

FACT: A family went to a caravan park and the parents were told that there was a lake in the park but they don’t know where exactly the lake is. While the mother was talking to somebody, the kid wandered off but ended up drowning in the lake.

HELD: Claim failed.

REASONING: Court felt that the responsibility was on the parents but not the occupier. The parents knew there was a lake and it was for them to make sure that they know where it was so the child wouldn't come contact with it. The caravan park was not under a duty to make sure that the parents will careful about obvious dangers.

BALANCE BETWEEN WHAT THE OCCUPIERS SHOULD BE DOING & WHERE THE RESPONSIBILITY OF EXPERTISE SHOULD LIE

LEGISLATION

section 2(3)(b): when an occupier has someone on their land who is exercising a skill, the occupier can expect these expertise to rely on their skills and look after themselves to a certain extent

COMMON LAW

good illustration is in the case of Roles v Nathan

Roles v Nathan

FACT: A heating enginner came to check a central heating boiler and recommended the occupier to bring in some chimney sweep to clear the pipe. He made it clear that the chimney sweep shouldn't be sweeping out the pipe when the boiler had been lit as dangerous fume will leak. The chimney sweep were experienced to know this but yet he went ahead when the central boiler was on, and died. Widow sued the occupier.

HELD: Claim failed.

REASONING: When dealing with expertise, the occupier should have been able to trust that these people have their skill and the expertise should have been aware of the danger.

The fact that some visitor is an expertise does not automatically absolved the occupier’s liability completely, it is just one of the factor to be considered in balance with the other four factors

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Discharging the duty

- What the occupier could do to discharge his duty that he hold under OLA

section 2(4)(a): Warning

section 2(4)(b): Independent contractor

When is an occupier able to exclude his duty?

If he is able to exclude his duty, what extent will that apply to personal injury/property damage?

Warning

- when an occupier put a notice on his land that there is a danger

section 2(4)(a): Warnings do not automatically absolve occupiers from liability, unless it is sufficient to make the visitor reasonably safe, it can discharge the occupier’s duty

What constitutes reasonable care is spell out in more detail in statute than common law negligence

Looking at the facts/circumstances of the case, whether the warning sufficient to make the visitor reasonably safe on the land?

look at the adequacy of the warning

Size of the danger - How dangerous the premise is? The bigger the danger, the more the occupier will be expected to do to alert the visitor to that danger

Visibility - How big is the sign? Is it clear to people entering the premises? Is it satisfactory to alert them to that danger?

Location - Where is the sign? Is it right by the danger or further away where the visitor would have forgotten about it?

Wording

Did the warning contain the word ‘warning’ only? Visitor is alert to some kind of danger but he would not be clear of what kind of danger is it

Did the warning do something more than that by specifying/explaining what danger it is? eg. ‘the path is slippery when wet’

Did the warning state how to avoid that danger if possible? eg. ‘use an alternative path’

BE MINDFUL IN PROBLEM QUESTION, MAKE SURE YOU UNDERSTAND WHICH KIND OF WORDINGS IN THE SIGN IS FALLING INTO, BECAUSE THEY HAVE DIFFERENT LEGAL IMPLICATIONS

Principle: Occupier does not have duty to protect or warn visitors against obvious risks

Darby v National Trust

FACT: Somebody died in a murky pool of water. There was nothing strange about this particular stretch of water but they got tangled by the plant in the bottom and drowned

HELD: Claim failed. Occupier was not liable.

REASONING: That is an obvious danger and is not one that the occupier was expected to warn against.

Independent contractor

- when an occupier bring an IC onto his land to undertake work

s2(4)(b): Engaging an independent contractor to do work on his premises does not mean that the occupier can absolve his liability and pass all of the responsibility of a visitor’s injury to the IC, unless

it was reasonable to entrust the work to an IC

when appointing the IC, the occupier is satisfied so far as reasonably possible, the IC is competent

so far as reasonably possible, the occupier did check that the work has been done properly

1. Was it reasonable to entrust the work to an IC?

- Example in Haseldine v Daw

Haseldine v Daw

FACT: C was visiting a block of flat and got in a lift. But the lift plummeted to the bottom of the shack and C was injured.

HELD: Occupier was not liable.

REASONING: The occupier had no knowledge of maintenance of lift, it was reasonable for him to contract the job to an IC and for him to have thought that the IC had done his job properly

2. Did the occupier take sufficient steps to satisfy themselves that the IC is competent to undertake the work?

Question of fact

if there are facts that should have suggested to the occupier that the IC will not be competent, the IC should not have appointed the work to that IC who is not ncessarily competent

(eg. they have heard words suggesting someone is dodgy and have not been doing their work very well, the references they have taken out showed sign of concern),

3. Did the work involve special skill? If they don't, did the occupier check that the work has been done properly

- in some circusmtances, the occupiers would be expected to double check that their IC is undertaking their work properly

Woodward v Mayor of Hastings

FACT: A cleaning company came in to clean the snows of the stacks. They hadn't done a very good job and someone slipped on the stacks and sued occupiers

HELD: Claim succeed.

REASONING: There was no special skill involved. This was the kind of job that an occupier should have been checking whether whether the work had been done to the required standard.

If the occupier can satisfy the three requirements, they will be likely to discharge their duty on OLA 1957. Any claim would be brought against the IC in common law negligence

What if the IC does not have insurance?

Principle: Occupier do not have to check/assess whether the IC they have brought onto the premise have liability insurance

Payling v T Naylor

FACT: A bouncer was employed by a nightclub. He injured somebody but he did not have the necessary insurance. C sued the occupier of the nightclub instead.

HELD: Claim failed.

REASONING: It wasn't occupier’s duty to check if the bouncer has the insurance because section 2(4)(b) focuses on the competence of the IC, but not his insurance position.

Glaister v Appleby-in-Westmoreland Town Council

FACT: There was a horse fair where someone was injured. The IC did not have insurance so C sued the occupier instead.

HELD: Claim failed.

REASONING: It wasn’t part of occupier’s duty to check that there is insurance. The duty under OLA 1957 applies in relation to personal injury and property damage. There is no duty to make sure that any claim the claimant pursue is going to be sound (no duty to make sure that the IC is going to have money to satisfy the C)

EXCLUSION NOTICE

Under section 2(1) OLA 1957, occupiers can enter a contract and choose to give them greater protection than provided under OLA

most of the time, occupiers would choose to exclude liability

When is an occupier able to exclude his duty?

BUSINESS PREMISES

What is business premises?

not defined in the act, hence is a question of fact

Look at the fact to decide whether the occcupier is running the premises or using the premises for the business

Factors: How permanent is the occupier there? What kind of profit is he making? What is the occupier’s purpose?

section 1(3) UCTA 77: where claimant has obtained access to premises, and that access is primarily for for recreational or educational purposes, it wont generally be classed as a business premises eg. musuem, unless granting that access actually falls within the business purposes of the occupier

Situation where business CANNOT exclude liability - DEATH or PERSONAL INJURY

Under section 2(1) UCTA 1977, occupiers of business premises cannot exclude liability for death or personal injury

section 1(3) UCTA 1977: section 2 only applies to business premises

if there is a business with notices stating ‘no responsibility for death or personal injury’, that is not going to have legal effect

Situation where business CAN exclude liability - PROPERTY DAMAGE

in relation to property damage that happens on the premise, business premises can exclude liability but subject to a requirement of reasonableness

section 2(2) UCTA 1977 it will depends on whether the term or notice that is communicating this exclusion to the claimant satisfies the requirement of reasonableness -> law of contract

NON-BUSINESS PREMISES

section 2(1) OLA 1957: occupiers can extend, restrict, modify or exclude his duty to visitor by agreement

Hence, liability of an occupier on non-business premises can potentially be excluded by agreement or otherwise

Situation where non-business CAN exclude liability - AGREEMENT or OTHERWISE

1. Agreement

direct agreement between the parties

2. "Otherwise"

an exclusion notice can be sufficient for that exclusion to be effective, but sufficient steps must hav been taken to have brought it to the claimant/ public’s awareness.

White v Blackmore

FACT: The perimeter of a jalopy racing event was fenced around but not a permanent fence. One of the jalopy car ran into these fence and catapulted C into the air.

HELD: Claim failed.

REASONING: There was notices and leaflet handed out saying no responsibility for death or personal injury. It was deemed that whether or not the claimant had actually seen it, provided the occupier had taken sufficient steps to bring the exclusion notice to the claimant’s attention, then the exclusion can take effect

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Causation

Factual causation: Whether the occupier’s breach is the cause in fact of the claimant’s injury

Legal causation: same as in normal negligence - whether the kind of harm is reasonably foreseeable

eg. Jolley

Break in COC: Is there anything in the chain of causation that can break D's responsibility?

Defences

section 2(5): where you have expressly consented to the risk of doing something and something goes wrong, you are deemed to have consented to the injury sustained

defence of contributory negligence is not mentioned in the act but clearly applies because it is often found in practice

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OLA 1984

- apply to non-visitors (eg. trespassers, people using private right of way, etc)

Herrington has relaxed the law by finding that trespasser should be owed a common duty of humanity and there should be a miniaml elvel of protection for trespassers even though they were on the land without permission

This common law was transcribed into statute and brought into OLA 1984

DUTY OF CARE

Section 1(1) OLA 1984: Occupiers MAY owed a duty to non-visitors (but not necessarily)

occupiers will only be liable for personal injury, not for property damage

injury has to happen as a result of the state of the premises or something that is done or omitted to be done on them

Keown v Coventry Healthcare Trust

FACT: D was near the residential area which the kids used to come and play on the fire escape. One of them was doing acrobatic things and injured himself. The parents sued the hospital under OLA, saying that the accident occurred as a result of the state of the premises

HELD: Claim failed.

REASONING: This was to do with activity where the boy was doing gymnastic on the fire escape as in he was doing on the trampoline.

When will a duty arise?

- Non-visitors have to establish that the occupiers did owe them a duty

section 1(3): Occupiers will owe duty to non-visitors if three things are satisfied:

Occupier must be aware of the danger or have reasonable grounds to believe that it exists

Occupier must know or has reasonable ground to believe that the trespasser is in the vicinity of the danger concerned, or that he might come within the vicinity of the danger

The risk must be one against which in all the circumstances of the case, the occupiers can reasonably be expected to offer the trespasser some protection

1. Aware of the danger / Have reasonable grounds to believe that the danger exists

Rhind v Atsbury Water Park Ltd

FACT: C dived into a pool of water but hit his head on a box which was sitting on the bed of the pool. He suffered Tetraplegic

HELD: Claim failed.

REASONING: The occupier wasn't aware of the danger. Nobody knew the box would be on the bed of the pool.

Reasonable ground? referring to occupier’s actual knowledge of fact, which a reasonable person would assume that the danger existed

2. Know / Has reasonable ground to believe C is in the vicinity of the danger concerned / might come within the vicinity of the danger

Donoghue v Folkenstone Properties Ltd

FACT: D owed a land with a slipway which people would dived off it into the water in the summer. He hired wardens to try to stop these people. On boxing day, Donoghue drank alcohol and decided to take a running jump, but injured himself.

HELD: Claim failed.

REASONING: Even though D knew during the summer months people would come within the vicinity of the danger, it was deemed that the occupier didn’t know or had no reasonable grounds to believe that the people would use it in the winter months.

Reasonable ground? referring to occupier’s actual knowledge of fact, which a reasonable person would assume that the the trespasser is going to come within the vicinity of the danger

3. The risk must be one against which in all the circumstances of the case, the occupiers can reasonably be expected to offer the trespasser some protection

it is a kind of danger which the occupier should be expected to protect the trespasser against

is like fair, just & reasonable in Caparo where value judgment came in

eg. balancing act, is it appropriate to make D liable

Tomlinson v Congleton Borough Council

FACT: D owned a land with a disused quarry which filled with water. People would use it as a stone beach and sit around the edge, and also swimming. There was numerous attempt to stop people from swimming (sign warning, hired warden, planting shrubs around perimeter). C still went ahead, and broke his neck while diving, causing tetraplegic.

HELD: Claim failed.

REASONING: To have stopped C from swimming, D would have to completely called off this area from the public and other people would not be able to enjoy this space at all. The court was unwilling to give so much protection to one reckless individual to the detriment of wider interest of society. The court feel that this is not a case in which the trespasser should have been offered protection from the law under this act, because the detriment to other people would have been greater.

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STANDARD OF CARE

section 1(4): occupiers owe duty to take reasonable care to trespassers

four factors in negligent

Likelihood of harm

Gravity of harm

Cost/practicability of rpecautions

Social utility

Lord Hobhouse in Thomlinson: there is a balancing act between individual interest and social utility of the premises to which the occupier is putting his land

WARNING

Warning can discharge the occupier of his duty (same as before)

However, in relation to assessing the adequacy of the warning, don’t have to specifically look at the safety of the visitor, but look more generally at whether the occupier has taken reasonable care in alerting people to danger and discouraging risk on property

DEFENCES

OLA 84 sys nothing about whether liability can be excluded or not

Generally, defence of consent is available in the same way as visitors for trespassers

Defence of illegality - if you have been involved in committing illegal act and suffered injury, if the illegality is serious enough and sufficiently connected to the tort C is complaining about, the defence will stop the claim

However, this is unsure

Revill v Newbury

FACT: His shared in the allotment kept getting burgled. One night, he went to the allotment share with his shotgun. C decided to burgle the share and when he came, D shot him.

HELD: Claim succeed. Illegality did not stop the claim for going ahead