“a common duty of care to see that visitors will be reasonably safe in using the premises for which he is invited or permitted by the occupier to be there.”
This duty of care relates to the purposes for which the invitee was permitted on RSPB property. Thus, the test gives consideration to the purpose and consequent subjective state of the invitee. A higher duty of care will be owed by the RSPB to a disabled invitee who may need a wheel chair to access RSPB premises. However, able body visitors will not require such as to ensure their subjective duty of care. Thus, the duty of care is not one set of standards that can be applied to all visitors but must accommodate the different needs of different invitees. This is the main point of the Act.
Disclaimers and contractual clauses limiting RSPB liability for a breach of duty of care, are construed narrowly and may not have any effect. Indeed, it would be inequitable for the RSPB to invite entrants onto its premises (for its own financial gain) and then neglect the welfare of such entrants through disclaimers.
Thus, the RSPB reserve who displays a sign limiting liability for defective premises must ensure
- the sign does not limit liability for death or personal injury caused by negligence (unlawful limitation)
- the sign is sufficiently clear and ensures the visitor’s safety
Note the positive duty in (b) (as opposed to the duty of omission in (a), for the sign to secure the safety of visitors. Thus, it is not enough for the sign to warn of the danger. The sign must provide, if reasonable, alternatives for the visitor which offer greater safety. Thus, in Roles v Nathen, a disclaimer which stated “ This Bridge is dangerous” was not a sufficient warning, as it did not secure the safety of the visitor. As per Lord Denning, any warning sign to invited visitors, must if practicable, offer alternatives. Thus, the disclaimer which offers an alternative bridge to be found at point X, would secure the safety of the visitors, and limit the liability of the Occupier upon the excluded bridge.
In summery, we see that the duty of care owed by the RSPB to invited visitors is subjective, so that the RSPB must secure the welfare of visitors with specific regard to their needs; whether they be children, the disabled or elderly.
Any attempt to limit this liability is qualified by the necessity to offer alternatives as to ensure safety. Thus, a sign warning of dangerous machinery upon a popular route of a reserve, must offer a safer route as outlined, perhaps, on a map of the reserve.
Duty Of Care to Uninvited Entrants: Trespassers
It is a popular belief that those who enter premises without authority should enter so at their own risk. Indeed, this was the historical common law position. Trespassers were owed no duty of care by the Occupier, so that a trespasser who was injured by dangerous implements negligently left on land, had no remedy.
However, following cases where young children were killed upon premises, the law tried to imply ‘constructive licenses’ for trespassers, so that an Occupier would have impliedly granted a license to a trespasser, if the Occupier knew of the trespasser’s presence, but did nothing to prohibit such. The trespasser would then have a license to be on the property, and be afforded the protection of an invited entrant as per the 1957 Occupier Act above.
However, this meant that only trespassers who made their presence known to an Occupier could be afforded any protection. The young ‘first-time’ trespasser as it were, still had no remedy.
However, following the case of British Railways Board, the courts established a common duty of care which is owed to all entrants upon land who have no license and are thus, trespassers, irrespective of the occupier’s knowledge. Thus, a duty of care arises not when the Occupier knew of the presence of a trespasser ( the original position), but were the Occupier knew or ought to have known that his premises posed reasonable risk to trespassers.
Most Occupiers are aware of potential injuries that may be caused upon their land, to visitors whether invited or not.
However, though the duty of care owed to trespassers, has been established, the standard of care owed to a trespasser, under the 1984 Occupier’s Liability Act, is lower than the standard owed to an invited visitor. This is the distinction between the two Occupier’s liability Acts 1957 and 1984.
Indeed, the standard owed to a licensed visitor, as discussed above, is higher as regard is given to the subjective state of the visitor. By inviting the visitor, the RSPB undertakes to secure his welfare with regard to his specific needs. However, the standard of care owed to a trespasser is an objective standard, so that regard only needs to be given to the average safety of an average person. So one can assume that at the time of the trespass, that the trespasser was of average age, he was of average intelligence, there was average light for him to see by and he would not unreasonably subject himself to danger.
Thus, an Occupier will not be liable under the 1984 Act were a child, with learning difficulties and who could not read, to enter his premises at night and fall down a well, that had a sign warning visitors of the danger. This is because the average person on an average day would take head of the sign.
However, arguably, this sign would be insufficient for an adult who was a licensed visitor and without seeing, for example, a larger sign with flashing lights highlighting the danger, fell down the well. This is because, under the 1957 Act, the sign must not only warn the licensed entrant of the danger, but must secure his safety. The sign for the licensed visitor failed to do this. However, it was sufficient for the blind child who was trespassing.
Thus, we see that a duty of care is owed to both licensed visitors and trespassers. However, the standard of care owed differentiates. The standard for an invited person is higher as the RSPB undertakes to secure his welfare, the standard for a trespasser is objective and thus lower, as the trespasser is deemed to be an average person, and no regard is given to the idiosyncrasies of the trespasser: age, mental health.
Evaluation
The RSPB must take all reasonable measures to ensure its grounds are reasonably safe and that any disclaimers of safety offer greater protection to the visitor rather than just highlighting the risk.
However, for trespassers, there must still be no overtly dangerous objects/circumstances upon RSPB property, though regard need not be given to particular characteristics of trespassers. Moreover, disclaimers ought to warn of the dangers but not necessarily offer any alternatives.
Paul Shakesby LLB
