Compare and contrast the duty of care owed to trespassers with that owed to visitors. Do you agree that the distinction is appropriate?

Begin with the duty of care to visitors under the OLA 1957: the ‘common duty of care’ is an ‘occupancy duty’ and is defined in s 2(2) in terms of what is reasonable in the circumstances. It is determined objectively. As with the previous common law, the duty is owed regarding personal injury and property damage, and probably consequential loss as well. Exclusion is possible under the OLA (s 2(1)) but only in accordance with UCTA 1977 s 2(1). Warnings can help to discharge the duty according to s 2(4)(a).

The history of duty to trespassers begins with Addie v Dumbreck, increasing through cases such as Glasgow Corp v Taylor, and the use of the principle of ‘allurement’ until British Railways Board v Herrington and the standard of ‘common humanity’. The nature of the duty under the OLA 1984, which is also an ‘occupancy duty’, is set out in s 1(4) but this duty only arises if the three conditions of s 1(3) are satisfied. If the occupier is ignorant of the facts required to satisfy s 1(3) there will be no duty, unlike the ’57 Act. The duty itself is narrower than that for visitors: regarding type of warning (s 1(5)) and lack of liability for property damage. Ratcliffe v McConnell indicates that the resources of the defendant will be taken into account, although not under the ’57 Act.

You should conclude with whether or not you agree with the distinction you have described, and give reasons for your view.