In the case of Baldacchino v West Wittering Estate Plc  EWHC 3386 (QB), the High Court dealt with the issue of occupier’s liability under the Occupiers’ Liability Act 1957 and Occupiers’ Liability Act 1984.
The High Court held that the fact that an owner of land does not specifically tell a person to keep off part of the property, or may not even be aware that the person is on that part of the property, does not, in its judgment, equate to an invitation or permission to use that part of the property and in particular to use it in a way which the property owner does not approve of.
In this case, the defendant owned and occupied a beach in Sussex, which had groynes running from the beach out to sea. There were navigation beacons at the farthest end of the groynes – warning signs for sea farers and beach users. The claimant and his friends climbed up the beacon and were diving into the water. They had been spotted by the lifeguards who were employed by the defendant and were asked to leave. They did only to return back later. Not knowing the tide was going out, the claimant suffered an accident and fractured his neck. He claimed for occupiers liability against the defendant.
Judge Stuart Baker applied the Occupiers’ Liability Act 1984 and found that the claimant was a trespasser. The Judge applied a strict test both in terms of the issue of trespass and the consequent duty owed by the defendant. He confirmed that the duty restricts the duty of occupiers to cases where:
– he is aware of the danger or has reasonable grounds to believe that it exists; and
– 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; and
– the risk is one which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
The judge held in favour of the defendant: the premises were not inherently dangerous; the defendant did not have reasonable grounds for believing that the claimant would come into the vicinity of any danger (based on the previous warnings given by the lifeguards); and the precautions taken by the defendant (having lifeguards on the beach) was as much as could reasonably be expected for a busy beach that was visited by 11,000 or so visitors each day.