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Does a Burglar consent (volenti non fit injuria)?

Does a Burglar consent (volenti non fit injuria)?

Postby diy » Wed Feb 27, 2013 1:38 pm

A home owner installs a security device to protect valuables in his garage. These include cutting power to lights, filling the room with high decibel sound and smoke.

A burglar (or other person without license) breaks in, triggers the alarm and trips over in the dark, smoke filled room due to the disorientation of the sudden loss of senses. He skewers himself on a pick axe which was in the garage and is permanently crippled, requiring long term care.

In breaking in to the house has he consented to the risk of injury?
Would the home owner have any defence if he erected warning signs?

fictional scenario, but I note that people are increasingly adding less passive security devices.
My suggestions are not legal advice
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Re: Does a Burglar consent (volenti non fit injuria)?

Postby atticus » Wed Feb 27, 2013 1:56 pm

It is well-established that duties under the Occupiers Liability Act 1957 do not extend to trespassers (for a recent discussion see Harvey v Plymouth City Council, CA 2010 http://www.bailii.org/ew/cases/EWCA/Civ/2010/860.html).
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Re: Does a Burglar consent (volenti non fit injuria)?

Postby diy » Wed Feb 27, 2013 3:25 pm

Thansk for that - wasn't the obligation extended under the 84 act - to include trespassers? Part of the argument in the above was about duty of care for trespassers. I think the case established that the claimant had a license to be there so could not be argued to be trespassing.

under the 84 act - there seems a need for the trespasser to consent to the risk or for the occupier to take steps to prevent it?

(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).

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Re: Does a Burglar consent (volenti non fit injuria)?

Postby dls » Wed Feb 27, 2013 3:38 pm

Harvey -v- Plymouth City Council - CA - 29-Jul-2010 - Longmore, Carnwath, Hughes LJJ (Bailii, [2010] EWCA Civ 860, [2010] PIQR P18, [2010] NPC 89) - Personal Injury - Torts - Other
The Council appealed against a finding of liability under the 1957 Act after the claimant was injured after jumping over a fence to flee hving to pay a taxi, and falling down a steep slope onto a car park. The land had been licenced to the supermarket, but had reverted. The land appeared to have had recreational use.
Held: The judge had erred in treating the claimant as a licensee to whom a duty was owed under the 1957 Act: "foreseeability was not the relevant test. In deciding whether the claimant was a licensee, the question was, not whether his activity or similar activities might have been foreseen, but whether they had been impliedly assented to by the Council. In my view there was no evidence to support such a finding. When a council licenses the public to use its land for recreational purposes, it is consenting to normal recreational activities, carrying normal risks. An implied licence for general recreational activity cannot, in my view, be stretched to cover any form of activity, however reckless."
Statutes:
Occupiers' Liability Act 1957

Cases Cited:
The Calgarth CA 1927 ([1927] P 93)
Hillen and Pettigrew -v- ICI (Alkali) Ltd HL 1936 ([1936] AC 65 HL(E))
Tomlinson -v- Congleton Borough Council and others HL 31-7-2003 (Bailii, [2003] UKHL 47, House of Lords, Times 01-Aug-03, Gazette 11-Sep-03, [2003] 3 WLR 705, [2004] 1 AC 46, [2003] NPC 102, [2003] 32 EGCS 68, [2003] 3 All ER 1122, [2004] PIQR P8)
Edwards -v- Railway Executive HL 1952 ([1952] 2 All ER 430, [1952] AC 737)
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Re: Does a Burglar consent (volenti non fit injuria)?

Postby dls » Wed Feb 27, 2013 3:39 pm

My own view is that such defences appear to be designed to injure, and if so found they land owner will be likely to be liable to the trespasser.
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Re: Does a Burglar consent (volenti non fit injuria)?

Postby diy » Wed Feb 27, 2013 4:02 pm

Thanks on both counts. I didn't quite get the gist of it from the Bailli link, but the above summary was clearer to me at least. And thanks again Atticus, I misread your link.
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Re: Does a Burglar consent (volenti non fit injuria)?

Postby inflato » Tue Nov 05, 2013 8:56 am

dls wrote:My own view is that such defences appear to be designed to injure, and if so found they land owner will be likely to be liable to the trespasser.

I tend to agree. If the homeowner deploys security systems and devices which are commercially available and in common usage then he would be on safe ground. If however he constructs a bamboo spiked bear pit on his side of the garden wall and a trespasser jumping over the wall ensnares himself thus, then i think the homeowner/person setting the snare would be liable.
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Re: Does a Burglar consent (volenti non fit injuria)?

Postby Hairyloon » Tue Nov 05, 2013 10:01 am

What if the thief steals an item that is clearly labelled "warning: danger of death" which subsequently explodes?
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Re: Does a Burglar consent (volenti non fit injuria)?

Postby zebedee » Tue Nov 05, 2013 1:20 pm

I don't see how the deceased would mount his claim.
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Re: Does a Burglar consent (volenti non fit injuria)?

Postby atticus » Tue Nov 05, 2013 1:34 pm

The deceased might not die; or if he does, his personal representatives and dependants could bring a claim.
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