OLA 1984 Trespassers Flashcards
(14 cards)
OLA 1984 , British Railways Board v Herrington . ‘duty of common humanity’
C may bring an action against D under the OLA 1984, prompted by British Railways Board v Herrington which established a ‘duty of common humanity’ owed to a trespasser.
Trespasser - common law … Addie v Dumbreck … permission/unknown
A trespasser is not defined in the Act, and the common law definition established in Addie v Dumbreck is used: ‘someone who goes on land without any sort of permission and whose presence is unknown to the occupier or ,if known, objected to’.
Lawful visitor 1957 … beyond (Tomlinson v Congleton BC
A lawful visitor under the 1957 Act can become a trespasser when they go beyond their permission.// Here, C is a trespasser as they do not have permission to be on D’s property, (Tomlinson v Congleton BC) because …
Premises - Wheeler v Copas
‘Premises’ may fall into the very wide definition of fixed or moveable structure following Wheeler v Copas
Section 1(1) OLA 1984 - duty of care - danger set out in Keown v Coventry NHS Trust
Under section 1(1) of the OLA 1984 a duty of care is owed by an occupier to a trespasser in respect of injury caused by a ‘danger due to the state of the premises’, set out in Keown v Coventry NHS Trust.
Section 1(3) only owe… a&b - aware (Rhind v Astbury Water Park) … C may come into … vicinity (Higgs v Foster) … X unexpected
Under Section 1(3), the occupier will only owe a duty of care if 3 conditions are met:
Firstly, under S1(3)(a), D must be aware of the danger or have reasonable grounds to believe it exists (Rhind v Astbury Water Park)
Secondly, under S1(3)(b), D must have known or had reasonable grounds to believe that C (or any trespasser) was in, or may come into, the vicinity of the danger (Higgs v Foster). There is no duty to an ‘unexpected trespasser’
S1(3)(c) - one against D … protection … Ratcliff v McConnell … ‘obvious dangers’
reasonable protection … unlikely
conclude - duty of care owed?
Thirdly, under S1(3)(c), the risk is one against D which may be expected to offer some protection to C (Ratcliff v McConnell). They do not have to offer protection in respect of ‘obvious dangers’. If D has offered all reasonable protection, it is unlikely a duty will be owed.
To conclude, all 3 conditions are met, so D will owe a duty of care to C
Section 1(4) ‘such care’
objective test - reasonable O
(Vaughan v Menlove, Blyth v Birmingham)
Under Section 1(4) the occupier must ‘take such care as is reasonable in all the circumstances’ to prevent injury to trespassers ‘by reason of the danger concerned’
This is an objective test and D’s standard of care will be compared to the reasonable occupier (Vaughan v Menlove, Blyth v Birmingham).
Factors Cost (Tomlinson v Congleton BC) age and allurement (Jolley v Sutton)
Factors may be considered such as the degree of danger and the cost and practicality of reducing the risk of harm, (Tomlinson v Congleton BC), and the age of the trespasser especially where there is an allurement, (Jolley v Sutton)
obvious dangers (Ratcliff v McConnell) older (Scott v Associated British Ports)
entitled … foolhardy (Donoghue v Folkestone properties)
conclusion
The occupier does not have to offer protection to adults in respect of ‘obvious dangers’, (Ratcliff v McConnell), and this may apply to older children (Scott v Associated British Ports)
The occupier is entitled to expect that a trespasser will not engage in foolhardy activities, or where expertise should make them aware of the danger, (Donoghue v Folkestone Properties).
To conclude, D will be liable
Section 1(5) warning effective (Westwood v Post office) child
Under Section 1(5), an oral or written warning can be a full defence if it is effective (Westwood v Post Office). A warning may be less effective in respect to a child, depending on their age and understanding.
The Law Reform Act 1945 - Sayers v Harlow , Jayes v IMI
The Law Reform (Contributory Negligence) Act 1945 provides that any damages to the claimant can be reduced by a percentage according to the extent to which the claimant has contributed to their own injuries, with even 100% a possibility, (Sayers v Harlow, Jayes v IMI)
Volenti s1(6). Ratcliff v McConnell
Volenti non fit injuries (consent) is a full defence under Section 1(6), where the claimant fully understood the nature of the risk rather than just being aware of its existence, and exercised free choice (Ratcliff v McConnell).
Remedy - section 1(8) personal only … compensatory DAMAGES ACT 1996 … aim
pecuniary medical, LOE , repair
non-pecuniary LOA, pain and suffering and post-trial losses
C duty to mitigate
As a remedy, under Section 1(8), a claim can be made for personal injury not damage to property.
As a remedy, for C’s personal injury the court may award compensatory damages under the Damages Act 1996, where the aim is to put the claimant in their pre-tort position.
Pecuniary (financial) losses will be claimed, such as medical bills, loss of earnings up to the trial and repair/replacement of property. Special damages will be awarded for these losses.
Non-pecuniary (nonfinancial) losses will be claimed, such as loss of amenity, pain and suffering and any post trial losses. General damages will be awarded for these losses.
C is under a duty to mitigate loss, which means keep the loss to a reasonable level by seeking prompt medical treatment and/or getting property repaired/replaced promptly
