OLA 1984 INTRO
It was introduced to provide a limited DOC to trespassers.
Originally trespassers and unlawful visitors were only protected against deliberate or reckless damage caused by an occupier.
However an occupier was allowed to act reasonably in his own protection
CLAYTON V DEANE
Case accepted that an occupier was entitled to use reasonable deterrents to keep trespassers out, in this case broken glass on top of a wall as long as it was reasonably visible
Even children were not protected
ADDIE V DUMBRECK
Children frequently played on premises and near to dangerous machinery. When one was injured there was no liability as he was a trespasser
Tis was seen as particularly harsh as a result and the HOL used the practice statement to overrule in BRB V HERRINGTON
Badly burnt when strayed onto railway line through vandalised fencing. HOL established a common duty of humanity, a limited duty that was owed when the occupier knew of the danger and of the likelihood of the trespass
SCOPE AND NATURE OF THE ACT
SECTION 11)a states that a duty applies in respect of people other than visitors for: 'injury on the premises by reason of any danger due to the state of premises or things done or omitted to be done on them'.
The act only covers injury meaning that the trespassers have less protection than lawful visitors. The occupier will only owe a duty under SECTION 1)3 if they
- Are aware of the danger or has reasonable grounds to believe it exists
- Knows or believes the other is in the vicinity of the danger
- The risk is one against which he may be expected to offer... Some protection
HIGGS V FOSTER
SECTION 1)4 is to 'take such care as is responsible in all the circumstances
There will be no liability on the occupier if they had no reason to suspect the presence of a trespasser
A police officer investigating a crime entered the occupiers premises for surveillance and fell into an uncovered inspection pit behind laches suffering severe injuries which caused him to retire from the force. The officer was a trespasser and the occupier could not have anticipated his presence so there was no liability
RHIND V ASTBURY WATER PARK
There is no liability if the occupier was unaware of the danger or had no reason to suspect the danger
C ignored a notice saying private property, strictly no swimming, he jumped into a lake and was injured by objects below the surface of the water. The occupier had no reason to know of the dangerous objects so there was no liability
STANDARD OF CARE
A objective negligence standard.
What is required of the occupier depends on the circumstances in each case.
Greater the risk more precautions.
Factors to be taken into account: nature of premises, degree of danger, practicality of taking precautions and the age of the trespasser.
TOMLINSON V CONGLETON BOROUGH COUNCIL
Local authority owned a park including a lake. Warning signs were posted prohibiting swimming and diving because the water was dangerous but the council knew these signs were generally ignored. Council decided to make the lake inaccessible but had delayed the work due to lack of funds. He C dived into the lake struck his head and suffered paralysis
Not liable warning signs offered protection and he is an adult but decided to ignore them
There is no reference to exclusion clauses of liability in the act. It is argued that exclusions should be impossible since the act creates a minimum standard. This creates the unhappy situation where a trespasser might be entitled to more care than a lawful visitor