Occupiers liability 1984 act:

Created by

Alex Lansdale

Cards (12)

1984 Act – for a duty to exit the defendant has to be aware of the danger and has to have grounds to believe that the trespasser is within the vicinity of the danger – each case is different as per circumstances and is judged subjectively.
Section 1 (3) “An occupier of a premises owes a duty of care to another (not being his visitor)”. A trespasser is a person who has no permission to be on the premises or a lawful visitor who has gone beyond their permission to be on the premises
Section 1 (3) - the defendant will owe a duty of care if they are aware of the danger or have reasonable grounds to believe it exists. Or they know or have reasonable grounds to believe that the other person is in the vicinity of (near to) the danger concerned, or that they might come into the vicinity of the danger.
Swain v Natui Ram Puri (1996) – small boy fell from a roof. Held the occupier did not have reasonable grounds to believe that the child could be within the vicinity of the danger. ‘Reasonable grounds to believe’ does not mean ‘ought to have been aware’.
Section 1 (3) - They may be expected to protect the other person from the risk. In Tomlinson, it was said that as the claimant had freely accepted the risk of injury while swimming the council were not expected to protect him. (Part 2)
Section 1 (4) - duty owed: “ to take such care as is reasonable in the circumstances to see that he (the trespasser) is not injured by reason of the danger”.
The ‘danger’ referred to in these sections is the thing which causes injury or an area of land or part of a building on which the trespasser is injured.
The Act is not concerned with risks due to anything other than the danger.
The standard of care is subjective. What is required of the occupier is determined on the circumstances of each case. The greater the degree of risk, the more precautions the occupier will have to take. Factors to be taken into consideration are:
Nature of the premises
Degree of danger
Practicality of taking precautions
age of the trespasser
Cases for obvious danger: Ratcliff v McConnell (1999) – no hidden danger
Donoghue v Folkstone Properties (2003) – is the time of day or year relevant?
Tomlinson v Congleton Borough Council (2003) – council does not have to spend excessive amounts to make premises safe from obvious risks.
Higgs v Foster (2004) – no reason to anticipate the trespasser
Rhind v Asrtbury Water Park (2004) – unaware of the dangers
Section 1 (8) - The occupier will not be liable for any property damage suffered by the trespasser. For example, clothes or equipment.
Warning signs - section 1 (5): The occupier can discharge his duty to the trespasser by giving a warning of the danger or in some way discouraging the taking of the risk.
Westwood v The Post Office (1973) Whether a warning is sufficient for a child trespasser will depend on the child’s age and understanding.
The same statutory rules and approach from the judges apply to child visitors as for adult visitors.
Consent/Volenti
Applies to occupiers’ liability to trespassers in the same way as claims made by lawful visitors. The defence is allowed by s 1(6) of the 1984 Act, if the trespasser appreciates the nature and degree of the risk, more than just it’s existence. If it is successfully argued, the defendant will not be liable to pay damages to the claimant as the claimant has freely accepted to run the risk of injury whilst on the premises.
Contributory Negligence
It applies to occupiers liability to trespassers in the same way as claims made by lawful visitors. The occupier will argue that the trespasser is partly responsible for the injuries they have suffered while on the occupier’s premises. If successful, the amount of compensation will be reduced by an appropriate amount.