Occupiers' Liability Act 1984

Occupiers' Liability Act 1984

1. (1) Establishing Liability

   • When is a Duty of Care owed?
     • Condition 1: Reasonable Grounds to believe the danger exists
       • Section 1(3)(a): He is aware of the danger or has reasonable grounds to believe it exists
         • Swain v Puri [1996]: D must have ACTUAL knowledge of FACTS that would lead a REASONABLE PERSON to the requisite conclusions.
     • “Parliament has made it clear that in the case of a lawful visitor, one starts from the assumption that there is a duty whereas in the case of a trespasser one starts from the assumption that there is none.” (Tomlinson v Congleton BC).
       • Condition 3: the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer some protection”
         • Section 1(3)(c)
           • Brown v South West Lakes [2022]: Risk not one which, in all circumstances, D should have offered protection: barrier against lake.
             • Tomlinson v Congleton BC [2004]: No general duty to protect against obvious risks...
               • Baldacchino v West Wittering Estate [2008]: Not reasonably to expect precautions against swimmer diving off navigation beacon (14 y old)
                 • Children (depending on age and purpose) might be entitled for Moore protection
     • Condition 2: Knows or has reasonable grounds too believe the trespasser is/migh come into the vicinity of the danger
       • Section 1(3)(b)
       • Donoghue v Falkstone Poperties [2003]: Trespasser came to use pool at MIDNIGHT; no liability. D might have expected trespassers during day, but not at night,
     • What does the Duty of Care Require?
       • Section 1(4): the duty is to take such care as is reasonable in ALL THE CIRCUMSTANCES of the case to see that he does not suffer injury on the premises by reason of the danger concerned.
         • (i) Seriousnes of Danger
           • The more serious the danger, the greater the steps required
         • (ii) The Trespasser Likely to Come
           • The cases make it abundantly clear that an occupier must take greater care for the safety of child trespassers than adults
             • e.g. Scott v Associated Ports (2000, unreported): suggestion that a railway truck, given expectation of CHILD trespassers (here, a 'glue-sniffing youth'), should be fenced.
             • Pannett v PN McGuinnes Co [1972]: Liability where site-workers left big hole unattended, and a boy of 5 entered and fell into hole
         • Warnings
           • an occupier will usually show sufficient diligence in keeping an ADULT away from the danger if he puts up notices saying “Danger, keep out”.
             • Ratcliff v McConnel [1999]: Warning saying 'danger, keep out' sufficient to discharge duty to 16 year old trespasser.
               • Section 1(5): Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged 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.
           • (2) Defences
             • (a) Exclusion of Duty?
               • open question of whether it can be excluded or not.
                 • If yes, not subject to UCTA or CRA...
             • (b) Volenti
               • Section 1(6)
             • Con Neg
             • (3) Damages
               • Personal Injury
                 • Section 1(9): “injury” means anything resulting in death or personal injury, including any disease and any impairment of physical or mental condition…”
                   • Section 1(1): (a).......suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and
               • Property Damage
                 • Section 1(8): “Where a person owes a duty by virtue of this section, he does not, by reason of any breach of the duty, incur any liability in respect of any loss of or damage to property”