4.—(1) In respect of a danger existing on premises, an occupier owes towards a recreational user of the premises or a trespasser thereon (“the person”) a duty—

(a) not to injure the person or damage the property of the person intentionally, and

(b) not to act with reckless disregard for the person or the property of the person,

except in so far as the occupier extends the duty in accordance with section 5.

(2) In determining whether or not an occupier has so acted with reckless disregard, regard shall be had to all the circumstances of the case, including—

(a) whether the occupier F4[knew of, or was reckless as to whether,] a danger existed on the premises;

(b) whether the occupier F4[knew of, or was reckless as to whether,] the person and, in the case of damage, property of the person, was or was likely to be on the premises;

(c) whether the occupier F4[knew of, or was reckless as to whether,] the person or property of the person was in, or was likely to be in, the vicinity of the place where the danger existed;

(d) F5[…]

(e) the burden on the occupier of eliminating the danger or of protecting the person and property of the person from the danger, taking into account the difficulty, expense or impracticability, having regard to the character of the premises and the degree of the danger, of so doing;

(f) the character of the premises including, in relation to premises of such a character as to be likely to be used for recreational activity, the desirability of maintaining the tradition of open access to premises of such a character for such an activity;

(g) the conduct of the F4[person, including whether or not he or she entered onto the premises as a trespasser, and] the care which he or she may reasonably be expected to take for his or her own safety, while on the premises, having regard to the extent of his or her knowledge thereof;

(h) the nature of any warning given by the occupier or another person of the danger; and

(i) whether or not the person was on the premises in the company of another person and, if so, the extent of the supervision and control the latter person might reasonably be expected to exercise over the other's activities.

(3) (a) Where a person enters onto premises for the purpose of committing an offence or, while present thereon, commits an offence, the occupier shall not be liable for a breach of the duty imposed by subsection (1) (b) unless a court determines otherwise F4[in exceptional circumstances, having regard to matters such as the nature of the offence, the extent of the recklessness on the part of the occupier, or the fact that the person was not a trespasser].

(b) In paragraph (a) “offence” includes an attempted offence.

(4) Notwithstanding subsection (1), where a structure on premises is or has been provided for use primarily by recreational users, the occupier F4[shall, subject to section 5A, owe] a duty towards such users in respect of such a structure to take reasonable care to maintain the structure in a safe condition:

Provided that, where a stile, gate, footbridge or other similar structure on premises is or has been provided not for use primarily by recreational users, the occupier's duty towards a recreational user thereof in respect of such structure shall not be extended by virtue of this subsection.

F6[(5) Without prejudice to the generality of subsection (4), in determining under that subsection whether or not an occupier has complied with the duty to take reasonable care to maintain a structure in a safe condition, regard shall be had, as appropriate, to all of the circumstances of the case, which shall include but are not limited to the following:

(a) the probability of a danger existing on the premises;

(b) the probability of the occurrence of an injury to, or of damage suffered by, a recreational user by reason of a danger existing on the premises;

(c) the probable severity of an injury to a recreational user that might result from a danger existing on the premises;

(d) the practicability, and the cost, of precautions or preventative measures;

(e) where applicable, the social utility of the activity or conduct that gives rise to the risk of injury or damage referred to in paragraph (b).]