OLA 1984 trespassers

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OLA 1984 + cases
pavlina.hunt
Flashcards by pavlina.hunt, updated more than 1 year ago
pavlina.hunt
Created by pavlina.hunt about 7 years ago
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Question Answer
OLA 1984 Scope of occupiers' duty s 1(1)(a) - 'persons other than visitors': mainly trespassers, but also those using private rights of way: Following the Countryside and Rights of Way Act 2000 - a duty is owed under the 1984 Act to those exercising 'access to land' for 'open-air recreational' purposes, excluding risks from natural features of the land or some unnatural like climbing a wall or a fence.
Occupiers and premises s1(2) - identifies them in the same way as OLA 1957. Again it has to be the state of the premises and not the action that raises the duty of care. - Keown v Coventry National Health NHS - the action of climbing the underside of a fire escape caused injuries; - Revill v Newbery - shooting a burglar is action.
When does a duty arise? s 1(3) - only if all three are met: (a) he is aware or should have been of the danger; (b) he was aware of the trespasser or should have been; (c) the risk was one against which it was reasonable for the occupier to offer some protection. - Rhind v Astbury - (a) could not know there was container in the water; - Donoghue v Folkstone Properties - (b) cannot anticipate divers in the middle of the night in Winter; - Tomlison v Congleton DC - (c) there was a warning, no need for more protection, also not the state of the lake, but the diving caused the injuries.
Standard of care s 1(4) - 'the duty is to take such care as is reasonable in all the circumstances of the case to see that [the entrant] does not suffer injury on the premises by reason of the danger concerned' The courts will weigh up all the factors as in common law negligence: - Ratcliff v McConnell - the cost of taking precaution is also taken into account.
Warnings s 1(5) - a warning or discouraging people from entering may discharge the duty in 'appropriate cases' - Regarding adults Tomlinson (Dangerous water: no swimming) implies that almost any notice will be adequate. With children prevention from entry is more appropriate.
Exclusion of liability No express provision, but it is thought that the statutory duty is excludable; otherwise trespassers would be in a better position than visitors.
Volenti non fit injuria s 1(6) - no duty will be owed in respect of risks willingly accepted by the non-visitor - Ratcliff v McConnell - drunk college student climbed over a high fence into a locked swimming pool after hours. There was also a warning sign and a situation of obvious danger.
Contributory negligence Not mentioned in the statute, but used by courts in a similar manner as in OLA 1957
Defective Premises Act 1972 Section 4 imposes a liability on landlords for damage caused by defects owing to failure to maintain or repair premises.
Diagram for solving a problem (under OLA 1984)
Limitation period and damages - Adults: 3 years from the event - Children: 3 years after 18 - Damages: personal injury only
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