Tests applied to determine whether or not duty of care was breached, include:

• was the danger an 'unusual danger'?
• if the danger was unusual, did the landowner know of it, or ought to have known of it?
• did the landowner use reasonable care to prevent damage?
• did the entrant use reasonable care for their own safety?

This duty applies to [s.4(2)] :

• the condition of the premises;
• activities on the premises;
• conduct of third parties on the premises.

Factors to be taken into consideration include [s.4(3)]:

• the knowledge that the occupier has or ought to have of the likelihood of persons or property being on the premises;
• the circumstances of the entry into the premises;
• the age of the person entering the premises;
• the ability of the person entering the premises to appreciate the danger;
• the effort made by the occupier to give warning of the danger concerned or to discourage persons from incurring the risk; and
• whether the risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer some protection.

You may want to consult a lawyer with regard to specific liability issues and concerns.

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