Occupiers Liability 84 Model Answer

• Prima facie, the defendant, D, (state name), may be liable under the Occupier's Liability Act (OLA), which deals with lawful visitors, for the injuries/damage sustained by the claimant, C, (state name). The OLA 1957 concerns liability owed for injury or damage arising from the state of the premises and the OLA 1984 covers non-lawful visitors (trespassers).
• Firstly it needs to be established whether the D is an occupier. There is no statutory definition of an occupier, but broadly defined in common law. In the case of Wheat v Lacon it was stated that anybody in 'possession' or 'control' of the land could be an occupier. It was also held in Harris v Birkenhead Corporation that there could be more than one occupier but in Bailey v Armes if there is no one in control of the land then there is no occupier.
• Next, it needs to be established whether it occurred on premises. Premises have a very wide definition, under s.1(3)(a) it states that; 'a person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft'. This means that premises include houses, offices and buildings as well as vehicles, lifts and ladders (Wheeler v Copas).
• Under s2(1) of the OLA 1957, an occupier of premises owes a 'common duty of care' to ALL lawful visitors. Under 2.1(2) of the OLA 1957, there are four types of lawful visitors: invitees, licensees, those with contractual permission or a statutory right of entry.
• Under the Occupier's Liability Act 1984, a trespasser is not defined and so the common law definition from Addie v Dumbreck is used: 'a trespasser is someone who goes on land without any sort of permission and whose presence is unknown to the occupier, or if known objected to. A lawful visitor under the 1957 Act can become a trespasser when they go beyond their permission; The Calgarth.
• S.1(1)(a) of the OLA 1984 provides that a duty is owed by occupiers to individuals other than lawful visitors, ie trespassers for 'injury on the premises by reason of any danger due to the state of the premises.' Therefore, if premises are not maintained and kept safe, an occupier can be liable for any injuries caused. The occupier will not be liable if the danger came from what the trespassers were doing and not the state of the premises; Keown v Coventry NHS Trust.
• However, a duty of care owed to trespassers is much more limited and an occupier will only owe a duty of care if the following criteria are satisfied from s.1(3).
• S.1(3)(a) the occupier must be aware of the danger, or has reasonable ground to believe it exists. If the occupier does not know of the danger then they cannot prevent harm to the claimant; Rhind v Astbury Water Park.
• s.1(3)(b) the occupier must know or have reasonable grounds to believe that someone is or may come into the vicinity (near to) this danger; Donoghue v Folkstone Properties.
• S.1(3)(c) the risk is one against which, in the circumstances he may be reasonably be expected to offer some protection. This does not involve obvious dangers; Tomlinson v Congleton Borough Council.
• S.1(4) of the OLA 1984 sets out the scope of the duty to 'take care which is reasonable in all the circumstances to make sure that the trespasser doesn't suffer injury on the premise because of the danger concerned.'
• The standard of care is objective; Ratcliffe v McConnell, therefore what is required of the occupier depends on the circumstances of each case. The courts will consider:

  The Age of the Trespasser. Under the 84' Act both adult and child trespassers are treated the same: Keown v Coventry Healthcare NHS Trust/ Baldaccino v West Wittering.
• Additionally, the Occupier can expect a trespasser not to pursue foolhardy activities (or where expertise/training should make them aware) - Donoghue v Folkstone Properties.
• Also, there is no duty to 'unexpected' trespassers, Under s.1(5) if the occupier does not know or have any reason to suspect the risk of trespassing then they cannot guard against it and will not be liable; Higgs v Foster.
• Furthermore, the nature of the premises (commercial or domestic) Rhind v Astbury Water Park and the time of day and the time of year when the accident happened can be relevant to decide if occupier owes a duty. Risks will be higher at night and during the winter months; Donoghue v Folkstone Properties.
• An occupier can avoid liability if they can successfully raise a defence.
• The occupier can argue for a reduction of damages under the Law Reform (Contributory Negligence) Act 1945 if the Claimant has 'contributed' to their own injuries in some way. If a trespasser fails to take reasonable care for their own safety, the Court may reduce the amount of damages they receive as a percentage, based on how liable they are for their own injuries.
• An occupier has a complete defence using Volenti Non Fit Injuria under s.1(6) of the OLA 1984 if it is proven the C willingly accepted or consented to the risk.
• The occupier may have a complete defence if they have used an effective warning sign. S.1(5) of the OLA 1984 states: 'any duty ... may be discharged by taking such steps as are reasonable in the all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.' This means that a sign must give enough clear information to keep the trespasser safe in the circumstances. A general warning is not enough and it must be clearly visible but there is no need to warn about an obvious risk.
• In conclusion, X is likely/not likely to be found liable in the circumstances and under s1(8) of the OLA 1984, the claimant would only be able to claim for person injury (apply).