LROPW-CONNELL-03-2425-LRT

Legal Research and Opinion

Writing
Jason Connell (Part 1)
Sample Research Trail

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SUMMARY OF THE CLIENT’S PROBLEM

Jason Connell needs to identify a legal basis on which he may recover damages for his
personal injury. Jason was 13 at the time of the accident and is a child for the purposes of
legal procedure. He suffered injury when he was attacked by a guard dog whilst trespassing
on a building site. The building site was owned by Barrow Brothers Builders (“BBB”) who
were developing the site. Security for the site was provided by Hemming & Jones Security
Ltd (“HJS”). BBB blame Jason for ignoring warnings and taunting the dog.

LIST OF SEARCH AREAS

 Occupiers’ duty to trespassers

 Occupiers’ liability for guard dogs
 Contributory negligence of children
 Damages recoverable for trespassers
 Procedural requirements for child litigants

SEARCH METHOD AND RESULTS

Occupiers’ duty to trespassers

Secondary source:

On Westlaw: Clerk & Lindsell on Torts (24th edition, Sweet & Maxwell 2023).

I browsed the contents page and found:

Chapter 11 (Occupiers’ Liability and Defective Premises)

 Section 2 – The Occupiers’ Liability Act 1957

 Section 3 – Liability to Trespassers

Para 11-62 – Liability trespassers is largely dealt with by the Occupiers’ Liability Act 1984
together with a modest admixture of the common law.

Para 11-64 The 1984 Act uses the same terms of application as the 1957 Act. It only applies
to cases where injury can truly be said to be due to the £state of the premises”

Para 11-08 – The 1957 Act does not define an “occupier”. The rules of common law continue
to determine this question…. There may be more than one occupier of the same premises,
each under a duty to use care dependent on his degree of control. Wheat v E Lacon & Co
Ltd [1966] A.C. 552

Para 11-65- The threshold which must be crossed by the claimant is high. It is not enough to
show that, had the defendant been reasonably vigilant, he would have known of the possible
presence of the trespasser and his proximity to the danger: instead, it must be shown that he
had actual knowledge of facts that would have led a reasonable person to the requisite
conclusions.

Para 11-68 – The Act is vague on the standard of care that is owed (“reasonable in all the

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circumstances”)…. Two circumstances are particularly relevant. The first is the seriousness
of the danger. The second is the type of trespasser who is likely to come. The cases make it
abundantly clear that an occupier must take greater care for the safety of child trespassers
than adults.

Thus in Ratcliff v McConnell person [1999 1 W.L.R. 670, the Court of Appeal denied
recovery to a 16-year-old youth who, while trespassing in a college swimming-pool out of
hours, dived in, hit the bottom and suffered brain damage. Stuart-Smith LJ stated that it
would normally suffice for occupiers in such a case to make it clear that the claimant was not
meant to be there,363 and denied that there should be any duty to warn adults of dangers
that would be obvious to a reasonable

Para 11-72 a claim succeeded where a local authority failed to mend a defective fence
surrounding a decrepit wall, although it knew that children regularly played on the site.
Melvin v Franklin (builders) Ltd 919730 71 L.G.R 142 CA

Primary Sources:

Legislation

On Westlaw, Legislation search: Occupiers’ Liability Act 1984

I identified the following relevant sections:

1.— Duty of occupier to persons other than his visitors.

(1) The rules enacted by this section shall have effect, in place of the rules of the common
law, to determine—
(a) whether any duty is owed by a person as occupier of premises to persons other than
his visitors in respect of any risk of their suffering injury on the premises by reason of any
danger due to the state of the premises or to things done or omitted to be done on them;
and
(b) if so, what that duty is.

(2) For the purposes of this section, the persons who are to be treated respectively as an
occupier of any premises (which, for those purposes, include any fixed or movable structure)
and as his visitors are—
(a) any person who owes in relation to the premises the duty referred to in section 2 of
the Occupiers' Liability Act 1957 (the common duty of care), and
(b) those who are his visitors for the purposes of that duty.

(3) An occupier of premises owes a duty to another (not being his visitor) in respect of any
such risk as is referred to in subsection (1) above if—
(a) he is aware of the danger or has reasonable grounds to believe that it exists;
(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); and
(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.

(4) Where, by virtue of this section, an occupier of premises owes a duty to another in
respect of such a risk, the duty is to take such care as is reasonable in all the circumstances
of the case to see that he does not suffer injury on the premises by reason of the danger
concerned.
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(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case,
be discharged by taking such steps as are reasonable in all the circumstances of the case to
give warning of the danger concerned or to discourage persons from incurring the risk.

(6) No duty is owed by virtue of this section to any person in respect of risks willingly
accepted as his by that person (the question whether a risk was so accepted to be decided
on the same principles as in other cases in which one person owes a duty of care to
another).

Currency Check:

I checked the currency of section 1 by using the Westlaw “Versions” function. I noted from
the green circled tick symbol that s.1 was in force at the time of my search. I also noted that
this was “Version 4” of the section, which had been in force since 12 January 2010.
Therefore, the law set out above was also the law that was in force at the date of the
accident.

Case law

On Westlaw, Cases Search: Wheat v Lacon

Wheat v E Lacon & Co Ltd [1966] A.C. 552

Per Denning, M.R.: "Wherever a person has a sufficient degree of control over premises that
he ought to realise that any failure on his part to use care may result in injury to a person
coming lawfully there, then he is an 'occupier' and the person coming lawfully there is his
'visitor'; and the 'occupier' is under a duty to his 'visitor' to use reasonable care."

Currency check:

Wheat v E Lacon & Co Ltd [1966] A.C. 552: Positive/neutral judicial consideration

Occupiers’ liability for guard dogs

Secondary source:

On Westlaw: Clerk & Lindsell on Torts (24th edition, Sweet & Maxwell 2023).

Chapter 11 (Occupiers’ Liability and Defective Premises)

 Section 3 – Liability to Trespassers

Para 11-71 In Cummings v Grainger [1977] Q.B. 397 the Court of Appeal approved the old
cases on deterrent dangers, with particular reference to fierce dogs—although they did
suggest that it would be an unreasonable deterrent to keep a guard dog in circumstances
prohibited by the Guard Dogs Act 1975.

Primary source:

On Westlaw, Cases Search - Cummings v Grainger. I found the judgement. Per Denning MR
at 405C:

The only reasonable way of protecting the place was to have a guard dog. True it was a
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fierce dog. But why not? A gentle dog would be no good. The thieves would soon make
friends with him. It seems to me that it was very reasonable - or, at any rate, not
unreasonable - for the defendant to keep this dog there.

Note: This strongly suggests that keeping a fierce guard dog cannot, in and of itself, have
amounted to a breach of the duty described at s.1(4) OLA 1984.

Currency check:

Cummings v Grainger [1977] Q.B. 397- Positive/neutral judicial consideration.

Contributory negligence of children

Secondary source:

On Westlaw: Clerk & Lindsell on Torts (24th edition, Sweet & Maxwell 2023).

Chapter 11 (Occupiers’ Liability and Defective Premises)

 Section 2 – The Occupiers’ Liability Act 1957

 Section 3 – Liability to Trespassers

There was no direct reference to contributory negligence in the section on defences for
liability to trespassers. However, there was reference in relation to the 1957 Act:

Para 11-45- The Law Reform (Contributory Negligence) Act 1945 applies to an action for
breach of the common duty of care.

Primary Source:

On Westlaw, Cases Search: I typed trespassers into the Free text box and contributory
negligence into the Subject/Keyword search. I browed the results.

The 9th case listed was Young v Kent County Council [2005] EWHC 1342 (Qb).

The Council was found liable under the OLA 1984 for premises which had been inherently
dangerous to a child. However, the child was as much to blame as the council and his
contributory negligence was assessed at 50%.

Per Morison J:

34. Contributory negligence is assessed on the basis of blame. To what extent was the
claimant to blame for what happened? On one view, he was the author of his own
misfortune, but once it is accepted that the defendants were under a duty to protect
trespassers from injury, that may not be a complete answer. One way of testing the
blameworthiness of the claimant is to ask the question: who was more to blame for what
happened? Can I say that the claimant himself was more to blame for what occurred than
the school, which failed to protect the site, or the converse? I have come to the conclusion
that the claimant was as much to blame as the defendants. In other words, his damages
must be reduced by 50% to reflect the blame for the accident which must be attached to him.

Currency check:

Young v Kent County Council [2005] EWHC 1342 (Qb): Positive/neutral judicial
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consideration.

Damages recoverable for trespassers

I am not instructed to advise on remedies/damages but I think it would assist Jason to

understand broadly what type of losses are recoverable under the OLA 1984.

Secondary source:

On Westlaw: Clerk & Lindsell on Torts (24th edition, Sweet & Maxwell 2023).

Para 11-78- Presumably under the common law rule in Herrington v British Railways Board
[1972] AC 877 occupiers owed trespassers at least a vestigial duty to safeguard their
property. The Law Commission, and doubtless the OLA 1984, intended to abolish this
liability, leaving trespassers protected only in respect of personal injury. Unfortunately, this
does not seem to have been done. Section 1(1) of the 1984 Act makes it clear that the Act
replaces the common law only “in respect of [trespassers] suffering injury”, “injury” being
later defined as personal injury. It seems to follow that the common law remains with respect
to damage to trespassers’ property, and the occupier remains potentially liable for damage to
a trespasser’s clothes, car etc.

Note: this is an academic argument put forward by the editors of Clerk & Lindsell and is not
supported by case authority. The Act states that damages are only recoverable for personal
injury.

Procedural requirements for child litigants

The White Book 2024

Volume 1

In the index I looked up “children” which took me to CPR Part 21 – Children and Protected
Parties.

Under “Children” I found “Conduct of Proceedings” and then “generally” which took me to
paragraph 21.2. This provided took me to rule 21.2(2) which says:

A child must have a litigation friend to conduct proceedings on his behalf unless the
court makes an order under paragraph (3).

Paragraph (3) says that the court may make an order permitting a child to conduct
proceedings without a litigation friend.

I continued to read through Part 21 and reached r.21.10(1) which says:

Where a claim is made on behalf of a child, no settlement compromise or payment…

and no acceptance of money paid into court shall be valid…without the approval of
the court.

21.10(2)(b)(i) says that where proceedings are issued only to obtain the approval of the court
of an agreement reached before issue of those proceedings, the claim must include a
request to the court for approval of the settlement.

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Volume 2

The Limitation Act 1980

s.38(2) For the purposes of this Act a person shall be treated as under a disability while he
is an infant.

s.28(1) Subject to the following provisions of this section, if on the date when any right of
action accrued for which a period of limitation is prescribed by this Act, the person to whom it
accrued was under a disability, the action may be brought at any time before the expiration
of six years from the date when he ceased to be under a disability or died (whichever first
occurred) notwithstanding that the period of limitation has expired.

Currency check:

Green tick. Law in force from 21 April 2021.

Note – no legal issues arise in relation to procedural matters because the provisions of the
CPR are not a matter in dispute.

LEGAL ISSUES

 whether HSJ had a sufficient degree of control to be a joint occupier of the premises
with BBB

s.1(1) OLA 1984:

 Whether Jason suffered an injury and whether the injury was suffered on the
premises
 whether the presence of the guard dog was a danger on the premises
 whether the danger from the guard dog was due to the state of the premises, OR due
to things done on the premises, OR due to things that should have been done
 whether Jason’s injury was suffered by reason of the danger from the guard dog.

s.1(3) OLA 1984:

 whether BBB and/or HJS were aware of the danger from the guard dog, OR had
reasonable grounds to believe that the danger existed (or had no such grounds for
that reasonable belief).
 whether BBB and/or HJS knew that Jason was in the vicinity of the danger from the
guard dog, OR that he might come into the vicinity of the danger [it makes no
difference whether he was entitled to be there].
 Whether BBB and/or HJS were reasonably expected to offer some protection against
the risk posed by the guard dog, given all the circumstances.

s.1(4) OLA 1984:

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 Whether BBB and/or HJS took such care as was reasonable in all the circumstances.

s.1(5) OLA 1984:

 whether BBB and/or HJS warned Jason of a danger from the guard dog or
discouraged him from taking the risk of that danger
 if there was a warning of danger, was it the same danger which caused the damage
(i.e. the guard dog)
 whether steps taken to warn or discourage were reasonable or not, in all the
circumstances.

s.1(6) OLA 1984:

 Whether Jason, while trespassing, willingly accepted the risk from the guard dog.

Contributory negligence

 To what extent was Jason to blame for what happened?

I will apply the above law and procedure when giving my written advice.

Name………………

Date………………..

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