Occupiers liability - Both Mike and Nigel will have a claim in the tort of occupiers liability. Occupiers liability concerns the liability of an occupier to the claimants injury, loss or damage to property

The duty of care owed by Ken to Mike is held with the occupiers liability act of 1984, which under s1 (1) states that the duty is owed to persons other than lawful vistors, so it deals with unlawful visitors or in Mikes case tresspassers. The duty is owed in premises which are either a fixed or movable structure s1(2). As the incident occurs in a swimming pool in Kens garden, this can be said to be premises. The circumstances in which the duty is owed to a trespasser are when the occupier

Is aware or has reasonable grounds to believe a danger exists.

Is aware or has reasonable grounds to believe that the trespasser is in the vicinity or they may come in to the vicinity of the danger

The risk is one against which, in all circumstances of the case, the occupier may reasonably be expected to offer some protection.

As regards to Ken, we are told that he puts a cover over his swimming pool when it is not in use, which shows that he has reason to believe a danger exists as if some one jumps in to pool when it is unattended, they may either slip and fall, jump in and cause injuries or drown. So by putting a cover over it, this show that he is aware of the danger of the swimming pool in his garden.

He also has reason to believe that Mike may be in vicinity or may come in to vicinity of the danger, as we are told that he is aware that some youths from a nearby estate had occasionally come in to his danger at night and used the swimming pool. So the fact that Mike also climbs in the garden and the swimming pool as night shows that he ought reasonably to believe that he will be there, as others previously to him have done the same.

Finally, Ken has offered some sort of protection against the risk by placing a cover over it when it wasn’t in use. However, this part of the test is both subjective and objective, and the focus is on all the circumstances of the case. As Ken put the cover over the swimming pool to prevent people from swimming in the pool, the fact that Mike was injured shows