In this video we are going to talk about Occupiers Liability Act 1984 which applies to ‘persons other than visitors’.
Before this Common Law duty of care to trespassers was recognised in Herrington v British Railways Board. It was held that no duty to trespassers could arise unless an occupier had actual knowledge of: (i) the dangerous condition of his land; and the likely presence of trespassers. There's no duty to make enquiries as to the condition of the land for the benefit of trespassers.
Now who is classed as a non-visitor? s.1(1)(a) says that anyone “other than visitors” includes those using rights of way and trespassers. In Tomlinson v Congleton, it was seen that claimant was a visitor in the park, but a non-visitor once he jumped in lake.
A duty is owed if an occupier is “aware of the danger or has reasonable grounds to believe that it exists”. And if the occupier “knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger”
In Swain v Nati Ram Puri, the Claimant, a child was seriously injured after scaling a wall to a roof, then falling through a skylight. Court of Appeal rejected an argument that occupiers reasonably should have known that children would be attracted to an abandoned warehouse adjacent to a council estate. What is required is “actual knowledge including ‘shut-eye’ knowledge either of the actual risk or primary facts”.
Under s.1(8), the duty only extends to personal injury, but there's no duty to prevent property damage.
s.1(4) deals with the standard of care that is owed. “the duty is to take such care as is reasonable in all the circumstances of the case to see that Claimant does not suffer injury on the premises by reason of the danger concerned.” This duty may be more onerous where foreseeable trespasser is a child.
if Claimant’s injury was caused by his activity on Defendant’s premises, rather than a danger arising from “the state of the premises or things done or omitted to be done on them”, as in Tomlinsons case and Keown case, then D cannot be liable under the OLA 1984. However, Tomlinson interpreted ‘things done’ to mean Defendant’s may be liable for his own “activities or lack of precautions which cause risk”
s.1(5) says duty of care may “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”. Whereas s.1(6) says that there is no duty of care “in respect of risks willingly accepted.”
the Act is silent on whether an occupier can exclude or restrict liability to non-visitors; most
commentators assume that occupiers can exclude liability as liability to visitors can be
excluded and visitors are given stronger protection than trespassers.
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