Occupiers’ liability

Citation

(1999), "Occupiers’ liability", Property Management, Vol. 17 No. 2. https://doi.org/10.1108/pm.1999.11317bab.003

Occupiers’ liability

Occupiers’ liability

The most controversial cases arising under the Occupiers Liability Acts 1957 and 1984 seem to arise where the injured party attempts to make the occupier liable for injuries arising out of what the visitor, or trespasser, choose to do on the premises, especially if the activity was dangerous in itself.

A recent example of just such a case came before the Court of Appeal in Ratcliffe v. McConnell & Antr., The Times 3 December 1998. This was a very sad case arising out of fairly normal high jinks by a group of young friends. The plaintiff and his friends decided late at night, to climb over the locked gate of the swimming pool at Harper Adams College. They knew that the pool was closed for the winter, that the water level in the pool was low and that it was dangerous to dive into water of unknown depth. The plaintiff dived head first into the pool and received injuries that left him tetraplegic.

At first instance the plaintiff, aged 19, succeeded in his action for damages against the defendant based on their alleged breach of duty under s1 of the 1984 Act, subject to a finding of contributory negligence by the plaintiff. The result had been an award to the plaintiff of £1 million in damages. The defendant appealed.

After much discussion of the House of Lords’ decision in Herrington v. British Railways Board [1972] and the duty of care as laid down in s1 of the 1984 Act, the Court of Appeal acknowledged that the scope of the duty of care varied depending on such factors as whether the trespasser was very young or old and thus might not appreciate a danger which would be apparent to an adult. But they added, volenti non fit injuria was also a consideration when considering the existence of the duty because if the trespasser willingly accepted the risk, there was no duty owed to him (s1(6) Occupiers Liability Act 1984). In this case the plaintiff was aware of the risk and willingly accepted it, therefore the defendants were under no duty to him.

The result, sadly, but no doubt correctly, was that the plaintiff lost the £1 million in damages made to him by the High Court.