Occupier's Liability Act 1984

• Applies to trespassers:


  ·       No permission to be on the premises or has gone beyond their permission. (The Calgarth)
• Occupier-same definition as the 1957 Act:

  The person in control of the premises.  There can be more than one occupier. (Wheat)
• Premises – same definition as the 1957 Act:

  Any fixed or moveable structure. (Wheeler)
• Duty owed:


  Common duty of care of humanity:

  Under s1(3):

  ·       Occupier must be aware of the danger.

  ·       Occupier knows or reasonably believes the trespasser would come into the vicinity of the danger.

  ·       The risk is one against which the occupier is expected to have offered some protection. (Tomlinson)

  No need to warn of obvious dangers (Ratcliffe)
• ·       Ratcliff 


  no need to warn of obvious dangers.  Court stated that the defence of consent applied in this case.
• ·       Tomlinson 


  only expected to take reasonable steps to protect trespassers.  Courts will consider the cost of any precautions.
• ·       Donoghue 


  occupier can expect the trespasser not to engage in foolhardy disputes.
• Child trespassers:

  ·       Act does not mention a higher duty owed to child trespasser but did say in Tomlinson that what might be an obvious danger to adults, won’t be to children.  They will take into account their age and understanding.

  ·       Keown – claim failed as risk would have been obvious to the child (11yrs).

  Young v Kent – claim successful but reduced by 50% for contributory negligence.
• Defences:


  ·       Consent – claimant knew of the precise risk, acted out of free choice and voluntarily accepted the risk. (Ratcliff)

  ·       Contributory negligence – where the claimant contributed to the harm. Damages will be reduced by the judge to reflect that contribution.

  ·       Reasonable precautions taken. (Tomlinson).

  ·       Warning signs – s2(4) – Westwood – must be effective in keeping the visitor safe.

  ·       Obvious risks (Ratcliff).
• Remedies:

  ·       Can claim for reasonably foreseeable personal injury.
• Damages:


  ·       Special damages which cover pecuniary loss (losses that are easy to calculate in monetary terms and are calculated up to the date of trial). E.g.  loss of earnings.

  • General damages which cover non-pecuniary loss (losses that are not easy to calculate in monetary terms and are calculated for after the trial). E.g. pain and suffering and loss of amenity.