Sem2 - L2 - Occupiers Liability 2

Tort Law & Civil Remedies

Occupiers Liability 2:
1984 Act
© Staffordshire University Law School 2017

1. 1984 act - introduction
What are we looking at today?
• The Occupiers’ Liability Act 1984

• Nature and Extent of the Duty
• The Case Law
Page 1
Occupiers’ Liability
•
Remember - Occupiers’ Liability is
concerned with the liability of an
occupier for damage done to visitors on
the premises.
Occupiers’ Liability Act 1957 - liability

to visitors
•
Occupiers’ Liability Act 1984 - liability

to trespassers
Occupier’s liability Act 1984

•
Prior to the Act, the common law was
unfavourable to trespassers.
•
Led to harsh results in cases of children or
those who inadvertently strayed into
premises
•
Minimal duty – Addie & Sons v Dumbreck
[1929]
The Duty of Common

Humanity
•
Herrington v British Railways Board (1972)
•
6 year old child strayed onto railway and
suffered severe burns. Knew risk of injury
but did nothing to repair gap in fence.
•
Held: owe a duty to act humanely
2. Duty to trespassers
An occupier will owe a duty of care to trespassers
if under S.1(3) of the 1984 Act:
(a) he is aware of the danger, or should reasonably

have known it existed, on his premises;
and
(b) he knows, or has reasonable grounds to believe,
the trespasser is in the vicinity of the danger, or is likely
to come into the vicinity; and
(c) the risk is one which considering all the facts he

could reasonably be expected to offer some protection
against.
Page 2
Step 1
•
Awareness of (or reasonable grounds to
believe in the existence of) danger
•
First part asks subjectively if defendant
aware
•
Second part partly objective – asks
whether the occupier reasonably ought
to know about it
•
Rhind v Astbury Water Park [2004] – no
duty owed as D had no knowledge or
reasonable grounds to believe that the
fibreglass container was hidden beneath
surface.
Step 2
•
Knowledge of(or reasonable
grounds to believe in) the
presence of a non-visitor in the
vicinity of danger.
•
Donoghue v Folkestone
Properties [2003]
•
Although aware that people
swam in the harbour in
summer, not aware, or
reasonably expected to be,
Step 3
•
Reasonable expectation of protection
against the risk
•
Take into account the burden of
requiring an occupier to make the
premises safer
•
Simmonds v Isle of Wight Council
[2004] – 5 year old fell off swing and
broke his arm whilst at siblings sports
day. Argued school liable to cordon
them.
•
Courts found imposing liability would
result in sports days or other
pleasurable events not being held.
Tomlinson v Congleton BC
[2002] EWCA Civ 309 HL
• No duty of care owed under S 1(3) – no

risk arising from state of premises.
• HL considered risk was obvious and not

one which D might reasonably have
been expected to offer some protection
against
Page 3
Self-inflicted Harm
•
Tomlinson v Congleton BC (2003)
•
https://www.dailypost.co.uk
/news/local-news/paralysed-man-fails-
secure-damages-2939498
•
Local tragedy – paralysed from neck
down due to diving accident
•
No duty to warn against dangers
which are perfectly obvious
• Knowledge, or reasonable grounds to believe,
the trespasser is in the area?
Higgs v Foster [2004]
EWCA Civ 843
• No danger due to state of premises

• BUT
• What happens when the C has put
themselves at risk?
Keown v Coventry Healthcare NHS Trust

[2006] EWCA Civ 39
Page 4
3. Imposing limitations
• An occupier can set limits on visitors on the premises as to
time and length of stay, the purpose, etc. Access to
certain parts of the premises can be restricted.
• For example, in The Calgarth [1927] P. 93

Scrutton LJ remarked:
When you invite a person into your house to use the

stairs you do not invite them to slide down the banister.
• If permission is abused then this may amount to a

trespass. It is also possible to be a visitor for some
purposes but not for others
Page 5
• Under the 1984 Act, the occupier

should also be able to discharge his
duty by putting up notices, etc.,
warning of the dangers on his
premises.
• Such notices will be subject to the
same rules as those applying under the
Occupiers’ Liability Act 1957.
Page 6
• However, unlike the Occupiers’ Liability Act 1957 where

the warning must enable the visitor to be safe…
• Under the Occupiers Liability Act 1984 it is possible for an
occupier to discharge their duty by giving a warning or
discouraging people from entering premises (for example,
a locked gate)(s1(5)).
Page 7
12. Duty of care
s1(4) The 1984 Act:
The Occupiers’ duty once it is

established is
to take such care is is

reasonable in the case to see
that the non-visitor does not
suffer injury on the premises.
Page 8
Children
•
Not expressly mentioned in 1984 Act
•
Used to be the case that children were
treated as visitors so far as is possible
•
Now with 1984 Act no need as standard of
care is to do what is reasonable in the
circumstances to ensure non-visitor does
not suffer injury on premises
Type of damage
•
For ‘non-visitors’
•
Personal injury only
•
Property damage excluded s1(8)
Assessing what amounts to

•
reasonable
Same sort of balancing care
act as breach of duty
•
Weigh the resources of
defendant against cost
of taking precautions
•
Ratliff v McConnell
[1999] – risks willingly
accepted
Defences
•
Contributory Negligence
•
Volenti Non Fit Injuria
•
Warnings
Macho male diving
•
syndrome?
Dr Penny, the Council's expert, said that over the past decade
there had been little change in the rate of serious diving
accidents. Each year, as I have mentioned, there are about 25-35
fracture-dislocations of the neck. Almost all those affected are
males and their average age is consistently around 25 years. In
spite of greatly increased safety measures, particularly in
swimming pools, the numbers (when Dr Penny gave evidence)
had remained the same for a decade:
•
“This is probably because of the sudden, unpredictable nature of
these dangerous dives, undertaken mostly by boisterous young
men...hence the common description the "Macho Male Diving
Syndrome."
Question
•
Do you think the
decision in Tomlinson
would have been the
same if the claimant
was a 4 year old child?
Or an 18 year old
woman?
consolidation
Page 9
Preparation
Preparation for next week
ü Read through the lecture handout for

this session
ü Access the worksheet for Sem2
Workshop 3 and complete the pre-
workshop preparation tasks
ü Make sure you come to the
Workshop prepared!
ü Access the presentation slides for next
week’s large group session
Page 10

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Tort Law & Civil Remedies

Tort Law & Civil Remedies

© Staffordshire University Law School 2017

What are we looking at today?

• The Occupiers’ Liability Act 1984

Occupiers’ Liability Act 1957 - liability

Occupiers’ Liability Act 1984 - liability

Occupier’s liability Act 1984

The Duty of Common

(a) he is aware of the danger, or should reasonably

(c) the risk is one which considering all the facts he

• No duty of care owed under S 1(3) – no

• HL considered risk was obvious and not

• No danger due to state of premises

Keown v Coventry Healthcare NHS Trust

• For example, in The Calgarth [1927] P. 93

When you invite a person into your house to use the

• If permission is abused then this may amount to a

• Under the 1984 Act, the occupier

• However, unlike the Occupiers’ Liability Act 1957 where

s1(4) The 1984 Act:

The Occupiers’ duty once it is

to take such care is is

Assessing what amounts to

ü Read through the lecture handout for

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