2B - Evaluation of Occupier's Liability

Question 1

Introduction. (AO1)

Answer 1

• Occupiers liability is a branch of negligence that comes from statute law.
• There are two separate types; Occupiers Liability Act 1957 covering lawful visitors, and Occupiers Liability Act 1984 that covers trespassers.

Question 2

Introduction. (AO3)

Answer 2

• With it being a fault-based system, two initial problems may occur, being cost and delay.
• Cost rises as the evidence required to prove fault is costly, as it may be experts who need to be paid.
• Delay occurs in insurance claims as insurance companies investigate it for fraudulent claims. Additionally, if the evidence is complicated it may take months or years to reach a decision. Court proceedings further delay the case.

Question 3

Protecting Children. (AO1) (1957)

Answer 3

• As well as the adult duty of care, occupiers owe an extra duty to children.
• S2(3) the occupier must be “prepared for children to be less careful than adults and the premises must be reasonably safe for a child of that age”.
• Glasgow Corporation v Taylor established that the occupier must also guard against any kind of allurement

Question 4

Protecting Children. (AO3) (1957) (effective)

Answer 4

• Extra degree of protection for child visitors.
• Children are more likely to get themselves n dangerous situation than adults so the 1957 act is effective.

Question 5

Protecting Children. (AO1) (1957)

Answer 5

-Phipps v Rochester Corporation held that when a child is very young, the courts are less likely to find liability.

Question 6

Protecting Children. (AO3) (1957) (ineffective)

Answer 6

• Courts are less likely to find liability when a child is very young because of public policy, in which young children should not be exposed to dangers by themselves - they should be supervised.
• Reflects society’s view as most would expect really young children to be looked after.

Question 7

Protecting Children. (AO1) (1984)

Answer 7

• Law has evolved since Addie v Dumbreck.
• The same rules apply to child trespasser as those that apply to adults.
• S1(4) states that the age of someone is something occupiers have to take into account

Question 8

Protecting Children. (AO3) (1984) (effective)

Answer 8

-Children are still offered an extra layer of protections compared to adults.

Question 9

Protecting Adults. (AO1) (1957)

Answer 9

-An adult visitor is owed a common duty of care.
-S2(2) “take such care as is reasonable to ensure the visitor is reasonably safe.
-Laverton v Kiapasha Takeaway held that the premises must be reasonable safe.
Dean of Rochester Cathedral stated there must be a real risk of danger and that tripping, slipping and falling are everyday occurences.

Question 10

Protecting Adults. (AO3) (1957) (ineffective)

Answer 10

-The courts have restricted claims through case law and so made it less effective.

Question 11

Protection of Professionals. (AO1)

Answer 11

• Only a risk relevant to the trade in question can allow the occupier to be liable.
• Gives some protection as in Ogwo v Taylor.

Question 12

Protection of Professionals. (AO3) (ineffective)

Answer 12

-This is less effective as it offers less protection for professionals.

Question 13

Public Policy. (AO1) (1984)

Answer 13

Lord Phillips in Donoghue v Folkstone summed up the judicial view of claims under the 1984 act if the trespasser recognises the danger of his actions and yet continues.

Question 14

Public Policy. (AO3) (1984)

Answer 14

• Judges have found reasons in the 1984 act not to allow claims.
• Seems that the courts are trying to send a message that despite a compensation culture, visitors (lawful and trespassers) have to take responsibility for their safety.

Question 15

1957 act v 1984 act. (AO3) (ineffective)

Answer 15

-1957 allows claims for personal injury and property damage, whilst 1984 act only allows claims for personal injury damage.

Question 16

1957 act v 1984 act. (AO3) (effective)

Answer 16

• Lord Hoffman in in Tomlinson for Congleton justified this as being too burdensome to make occupiers liable at the same level for trespassers and lawful visitors.
• Trespassers need to take more responsibility for their own actions more than visitors.
• This difference is reflected in the way society views visitors in comparison to trespassers - they are less likely to accept trespassers receiving compensation.

Question 17

1957 act v 1984 act. (AO1)

Answer 17

• The 1957 act follows an objective approach requiring the occupier to keep the premises reasonably safe.
• The 1984 act requires the occupier to be aware of the danger, subjectively.

Question 18

1957 act v 1984 act. (AO3) (ineffective)

Answer 18

-The subjective test is inconsistent with tort law.

Question 19

Defences. (AO1)

Answer 19

• An occupier can raise a number of defences to liability, contributory negligence and warning notices are two.
• Warning notices are a complete defence.
• S2(4) of the 1957 act states that a warning notice must make the visitor reasonably safe.
• Rae v Marrs reinforces this as it declined the use of it as a defnce.

Question 20

Defences. (AO3) (ineffective)

Answer 20

-The fact that occupiers can raise defences narrows the law further and makes it less effective.

Question 21

Reforms. (AO3)

Answer 21

• Introduced no fault liability where whether lawful or trespasser compensation would be received.
• However this would require insurance so would likely be unpopular.

Question 22

Conclusion. (AO3) (both)

Answer 22

• Th 1957 and 1984 acts have evolved the law on protection of trespassers and visitors.
• However both the 1957 act and case law seems to be more effective than the 1984 act - possibly because of a reluctance to allow claims for trespassers.