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We are concerned here with the Occupiers Liability Act 1984 (the 1984 Act). The 1984 Act was passed as a result of shortcomings in the law – in that the law as it was, failed to provide adequate remedies. As a result a common duty of humanity developed. The case of British Railways Board v Herrington (1972), whereby the former House of Lords overruled Addie & Sons (Colliers) Ltd v Dumbreck (1929), is seen as an example of the emergence of a sense of duty and responsibility which recognised changes in society at the time.
Lest we take the law's protection for granted, and fail to understand the significance of the duties imposed under the 1984 Act, it is worth looking back at the particular shortcomings of the common law prior to the development of this new duty of humanity.
In Bird v Holbrook (1825) a land-owner set a spring-gun trap to protect his tulip garden from intruders. The trap was a form of device to deter trespassers and poachers. There were no warning signs that the traps had been installed. The spring-gun trap injured a trespasser who was recovering a stray bird (pea-hen). The party responsible for setting the booby trap was found liable for the injury to the trespasser's knee. The court held that the defendant had set the trap and not posted a warning, therefore he was liable for any damages caused and that in such a situation even a thief can recover damages. The court stated that to set the trap would have been a deterrent if notices had been posted but as no warnings were given the court declared that it was the defendant's intention to injure the intruder rather than to warn them off.
One problem was that the judiciary were not always agreed upon the correct approach as in Deane v Clayton (1817). The defendant had placed iron spikes in the ground to protect the hares in his grounds. The defendant was shooting on the neighbour's lands accompanied by his dog. The dog pursued a hare, crossed the boundary into the neighbour's lands and ran against one of the spikes and was killed. There was a difference of opinion between the Judges, two of the judges held that the plaintiff was liable in damages and the other two that he was not liable.
The case of Addie & Sons (Colliers) Ltd v Dumbreck (1929) became the subject of very real unease as, with the passage of time, the ruling was seen as harsh on children who may be injured when trespassing. In Addie the defendant was the owner of a colliery in a field alongside of which a road ran. The field was fenced off but there were gaps in the fence and the field was frequently used as a short cut and children treated it as a play area. The defendants rather ineffectively warned the public to keep off of the land but there was no effective measures taken to keep people out. One child went on to the land and climbed some apparatus and was killed. The House of Lords had held that an occupier of premises was only liable to a trespassing child who was injured by the occupier intentionally or recklessly. There was no duty of care owed to trespassers to ensure that they were safe when coming onto the land.
The effect of the House of Lords' decision was that landowners were not responsible for the harm done to child trespassers unless it could be shown that those who were responsible for the land had been negligent. It will be remembered that at the time the House of Lords considered themselves bound by their own previous decisions as they took the view that certainty in the law was more important than any hardship to individuals. Fortunately, Lord Gardiner, the then Lord Chancellor, issued a Practice Statement in 1966 which allowed the House to depart from its own previous decisions if it felt that they were wrong and that it was right to do so.
In British Railways Board v Herrington (1972) the House had the opportunity to change the law as the case involved the injury of a child who trespassed onto a railway line. The House considered that society had changed in the intervening years and felt that it was no longer right to support the law as found back in 1929. The House ruled that a more liberal approach was required which fell short of having to establish negligence against the owner of the property and overruled Addie & Sons.
The case is seen as a significant use of the Practice Statement, justifying its introduction thus allowing the law to develop and grow in order to meet the needs of society. An emerging duty of common humanity was born. Parliament did not want to be seen as standing in the way of change and recognised the shortcomings of the common law and passed the Occupiers Liability Act 1984.
We will examine the various provisions of the 1984 Act starting with Section 1 (1)(a) which provides a duty to trespassers for 'injury on the premises by reason of any danger due to the state of the premises or things done or omitted to be done on them.' We note straight away that the law is concerned with the state of the premises and anything that may be carried out at the premises, but that the Section does not impose liability for dangerous activities conducted by the non-visitor.
This 'state of the premises' principle was very well illustrated in the case of Siddorn v Patel (2007) the claimant rented a first floor flat from the defendant. During a party she climbed out of a window and onto the adjacent flat roof of the defendant’s garage. The roof area in question did not form part of her tenancy. Whilst dancing on the roof she fell through a skylight. She claimed against the defendant but her action failed because there was no evidence of a defect to the roof or skylight, or of failure to inspect or maintain. Furthermore the defendant had not given the claimant permission to go out onto the roof. In fact the defendant claimed that he had no reason to think that anyone would make use of the roof. In addition there was no evidence of a breach of a “premises” duty under Section 1(1)(a) of the Occupiers’ Liability Act 1984 dealing with the occupier’s liability to trespassers.
It is also worth noting at this point that any liability is for injury and does not cover damage to the property in question.
For the sake of consistency the terms 'occupier' and 'premises' are given the same meaning as under the 1957 Act but the 1984 Act goes on to elaborate upon the specific nature of the duty.
In Section 1(3) the occupier will only owe a duty if:
(a) he is aware of the danger or has reasonable grounds to believe that it exists;
The wording is important and is interpreted as being a subjective test. Therefore if the occupier is unaware of the danger or has no reason to suspect a danger no liability arises under this part of the test;
The subjective nature of this part of the test is well illustrated by the case of Rhind v Astbury Water Park (2004) where the defendants were the occupiers of a disused gravel pit used for recreational purposes such as fishing and sailing. There were signs around the pit stating that the pit was private property and that swimming was not allowed. It was accepted that the claimant was aware of those signs. On the day of the accident, the claimant and his friends went to play football on land adjacent to the water. During the game the football fell into the water and the claimant went to get the ball back. He did a running dive into the water and hit his head on a fibreglass container lying on the bottom of the pit in shallow water.
On appeal the Court of Appeal decided that as the container had been concealed, the occupiers were unaware of the danger and the claimant failed the test under Section 1(3).
(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not);
One effect of this is that the occupier is not liable if they are not aware of or have no reason to suspect the presence of the non-visitor;
In Higgs v Foster t/a Avalon Coaches (2004) the appellant, who was a serving police officer, was investigating a suspected stolen trailer which had been parked in the service yard of a supermarket in the centre of Glastonbury. On entering the respondents' property, which adjoined the service area, he fell into an uncovered inspection pit and suffered serious knee injuries. As a result of these injuries he was unable to continue working as a police officer. The appellant's claim was considered on the basis that the police officer was a trespasser but the claim failed on the grounds that the respondent was unaware of the officer's presence. In the words of Lord Justice Maurice Kay - “the evidence did not disclose reasonable grounds for believing that they (trespassers) might come into the vicinity of the uncovered pit. “
(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
This last part of the test is clearly objective and concerned with what a reasonable occupier would have done or considered appropriate in the circumstances.
In Section 1(4) the duty is to 'take such care as is reasonable in all the circumstances' to prevent injury to the non-visitor 'by reason of the danger concerned.'
Some of the problems encountered by the courts when assessing the nature of the duty imposed under Section 1(4) is illustrated by the well known case of Tomlinson v Congleton Borough Council (2003). The claimant, John Tomlinson, aged 18 at the time of the incident, had visited an artificial lake at Congleton with some friends. At some point the claimant dived in the water but hit his head on the bottom of the lake and he suffered serious injuries to his neck. He subsequently brought a substantial claim against the Borough Council for breach of duty under the Occupiers Liability Act 1984.
The court heard evidence about the precautions taken by the Council to reduce the risk of accidents and this included making the lake less interesting to the public by reducing landscaping and planting around the vicinity of the lake. The court, in something of a landmark case, ruled that the occupier was entitled to take into account how best to reduce the potential for incidents by taking practical precautions but that some responsibility may have to be borne by young people who undertake potentially risky activities resulting in injury.
In Donoghue v Folkestone Properties (2003) the appellants, Folkestone Properties, owned and occupied a harbour. Mr Donoghue claimed that they were in breach of the duty owed to him under the Occupiers' Liability Act 1984 and were responsible for his injuries. The appellants were appealing the finding as to the matter of a duty on the basis that any such duty did not extend to Mr Donoghue and his swimming expedition in mid-winter in the middle of the night. They claimed that they neither knew, nor could reasonably have been expected to know, about such activities. You will recall the limitations to the duty owed under 1(3)(b) and (c) mentioned earlier. Local conditions made the area unsafe and on appeal the court confirmed that there was no reason why the company would have believed that anyone would be swimming from the slipway in mid-winter and no duty of care arose.
So what other factors may be taken into account? Effective notices and warnings of potential risks and danger have been considered as a means of protection against liability. Section 1(5) of the 1984 Act specifically provides that the duty can be discharged by taking 'such steps as are reasonable in the circumstances'. In this regard some warnings may be sufficient for adults but something more may need to be done in the case of children. The courts have taken the view that, in the case of children, warnings on notices may not be sufficient because, although they may be able to read, they are entitled to be treated as children not adults and a stronger sense of danger or precaution may be needed to actually keep the children away. This could be in the shape of the construction of physical barriers.
In Westwood v The Post Office (1973) Westwood, an adult employee of the Post Office, was injured when he entered an unlocked room which had a warning of danger on the outside. It was held that the Post Office were not liable, the door should have been locked due to its condition but the notice was considered sufficient warning to an adult.
The Act in Section 1(6) provides that the defence of volenti is available. The defence of volenti therefore applies to trespassers just as to lawful visitors and the occupier is excused from all liability in respect of risks voluntarily accepted. However, it is doubtful whether the principle that 'someone who trespasses with knowledge of the risk accepts the danger', applies to a very young child.
In Sylvester v Chapman (1935) the claimant reached over the barrier outside a leopard's cage to remove a cigarette smouldering on a pile of straw. The leopard put its paw through the bars and scratched the claimant. The claimant's claim failed as he had clearly accepted the risk, and he had not been rescuing anyone from imminent danger.
In Titchener v British Rail (1983) a 15 year old girl walked along a railway line and received serious injuries when she and her boyfriend were struck by a train – her boyfriend was killed. She brought a claim but, when she admitted in evidence that she walked along the line and 'took a chance', her claim failed.
The more recent case of Scott & Swainger v Associated British Ports (2000) is also helpful. The case concerned two teenage boys badly injured while "train‐surfing" on the defendant's premises. The boys claimed under the 1984 Act. The trial judge was convinced that the boys would not have been put off by the presence of a fence, and that they were fully aware of the risks involved. The Court of Appeal agreed and since the absence of a fence was not the cause of claimants' injuries, their claim was rejected.
Finally it is worth noting that the 1984 Act, unlike the 1957 Act, makes no provision for the exclusion of any liability by exclusion clause or notice. Parliament surely could not have intended trespassers to have any greater protection than lawful visitors? As a result of this argument many lawyers believe that the 1984 Act sets out a minimum standard applicable in all cases, including where liability to lawful visitors has been excluded under the terms of the 1957 Act but unfortunately there is no relevant authority.
Turning to the question of how the courts have developed the law since the 1984 Act, it is worth remembering that the accepted view is that the reason the Act was implemented was because, at common law, trespassers were treated too harshly. In other words trespassers were left with no remedy and occupiers were under no duty of care towards trespassers at all. In different circumstances deliberate or reckless injury may have been considered unacceptable.
One may be permitted to think that society became concerned about the dangers of properties and of educating children as to the dangers, that contributed to the support for the Act. At the time social concerns continued to develop and grow and the Act was probably a product of social thinking and concern during that period.
Against such a background it is perhaps surprising to find the extent of argument and debate surrounding the rights and wrongs of the duty that the Act imposed. One such issue is that the duty is thought to impose a minimum standard, the effect of which is to impose what some may consider to be an unreasonably high level of care on the occupier.
This is a separate issue from the question of whether it is right to impose a duty on occupiers for the care of trespassers. It may not be enough to raise obvious objections against such a duty being imposed by saying that trespassers engaging in risky activities should be responsible for their own misfortune. We now know that the courts are prepared to restrict the duty so as to exclude liability for activities which are inherently risky.
This has been demonstrated by the ruling in the case of Tomlinson v Congleton Borough Council (2003). As a result it is not right to say that the law protects trespassers and imposes a blanket liability upon occupiers. The courts have shown that they are prepared to distinguish between cases where inherently dangerous activities are undertaken by the trespasser and those cases where they are not and the danger comes from the premises or their state of repair. It is thought that the ruling in Tomlinson reflected the court's attempts to send out a message that they were concerned that we, as a country, were becoming too litigation minded and that we were being reminded that there are limitations to the duty laid down in the 1984 Act. This may be so but there is an argument that the law should develop and grow to meet the needs of society and it is doubtful whether any attempt made in Tomlinson has succeeded in altering the public's perception about the law and the need to remedy wrongs.
The courts have clearly considered what is reasonable in terms of warning notices (Westwood v The Post Office) or other measures to restrict access so it seems as though the courts take the view that it is reasonable to expect the occupier of premises to be able to apply themselves constructively to sensible and practical precautions – the occupier should, after all, be in a good position to assess the state of the premises in question.
However, it should be appreciated that what may be a reasonable precaution in anticipation of an adult trespasser may be one thing, but such a precaution may not necessarily be adequate in the case of a child trespasser (Herrington v British Railways Board).
It is argued that, as damages are the remedy available, the courts can, in the level of award granted, properly distinguish between damages that should be awarded a lawful visitor and those damages that should be awarded a trespasser. There is also the matter of contributory negligence on the part of the trespasser. So it is possible to 'mitigate', if that is the right approach, any issue that it is not fair to impose a duty upon an occupier by pointing out that the courts do have ways of considering the merits of each case. It is also worth considering that the the duty imposed under Section 1(3) is in reality likely to be limited.
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