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A Level Law OCR Paper 2: Tort Law and Law Making > B: Occupiers Liability Act 1984 (Trespassers) > Flashcards

B: Occupiers Liability Act 1984 (Trespassers) Flashcards

1
Q
  1. Occupiers’ Liability is Governed by…
A

Occupiers’ Liability is governed by the Occupiers’ Liability Act 1957 (Lawful Visitors) and the Occupiers’ Liability Act 1984 (non-lawful visitors: trespassers).

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2
Q
  1. C may bring an action against D under the…
A

C may bring an action against D under the OLA 1984, prompted by British Railways Board v Herrington which established a ‘duty of common humanity’ owed to a trespasser.

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3
Q
  1. A trespasser is not defined in the Act, and the common law definition established in Addie v Dumbreck is used:
A

A Trespasser is not defined in the Act, and the common law definition established in Addie v Dumbreck is used:

“Someone who goes on land without any sort of permission and whose presence is unknown to the occupier or, if known, is objected to”.

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4
Q
  1. A lawful visitor under the 1957 Act can become a trespasser when…
A

A Lawful Visitor under the 1957 Act can become a trespasser when they go beyond their permission.

Here, C is a trespasser as they do not have permission to be on D’s property, (Tomlinson v Congleton BC), because [eg. he climbed over the wall at night OR he was a lawful visitor when he went into the shop, but became a trespasser when he went behind the counter].

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5
Q
  1. D must be the occupier with control…
A

D must be the occupier, with control of the premises, (Wheat v E. Lacon and Co).

Here, [eg. D is the occupier as they have control of the house as the owner / landlord / tenant of the house where the injury occurred].

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6
Q
  1. Premises must fall within the very wide definition of…
A

‘Premises’ must fall within the very wide definition of fixed or moveable structure following Wheeler v Copas.

Here, [eg. D is the occupier of premises as the cottage is a fixed structure].

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7
Q
  1. Under Section 1(1) of the OLA 1984…
A

Under Section 1(1) of the OLA 1984 a duty of care is owed by an occupier to a trespasser in respect of injury caused by a “danger due to the state of the premises”, set out in Keown v Coventry NHS Trust.

Here, [eg. C’s broken leg was caused by danger due to the state of D’s premises because the climbing frame was broken and this caused him to fall].

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8
Q
  1. Under Section 1(3) the occupier will only owe a duty of care…

Firstly…

A

Under Section 1(3), the occupier will only owe a duty of care if 3 conditions are met:

Firstly, D must be aware of the danger or have reasonable grounds to believe it exists - Rhind v Astbury Water Park

Here, [eg. D was aware of the danger as he put up a warning sign about the broken swing].

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9
Q
  1. Secondly, D must have known or had reasonable grounds to believe that C…
A

Secondly, D must have known or had reasonable grounds to believe that C (or any trespasser) was in, or may come into, the vicinity of the danger, - Higgs v Foster. There is no duty to an ‘unexpected trespasser’.

Here, [eg. D knew that C was in, or may come into the building site because he knew that children such as C often played there. C is not an unexpected trespasser].

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10
Q
  1. Thirdly, the risk is one against which D may be expected to…
A

Thirdly, the risk is one against which D may be expected to offer some protection to C - Ratcliff v McConnell.

They do not have to offer protection in respect of ‘obvious dangers’. If D has offered all reasonable protection, it is unlikely a duty will be owed.

Here, [eg. D is/is not expected to offer protection against the danger, because…]

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11
Q
  1. To Conclude…
A

To Conclude, [eg. all 3 conditions are met, so D will owe a duty of care to C.]

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12
Q
  1. Under Section 1(4) the occupier must…

This is an objective test and D’s standard of care will be compared to…

A

Under Section 1(4), the occupier must “take such care as is reasonable in all the circumstances” to prevent injury to trespassers “by reason of the danger concerned”.

This is an objective test and D’s standard of care will be compared to the reasonable occupier (Vaughan v Menlove, Blyth v Birmingham Waterworks) or reasonably competent professional occupier (Bolam v Friern Barnet HMC).

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13
Q
  1. Factors may be considered such as:
    a) the degree…
    b) and the cost…
    c) and the age…
A

Factors may be considered such as the degree of danger and the cost and practicality of reducing the risk of harm, (Tomlinson v Congleton BC), and the age of the trespasser especially where there is an allurement, (Jolley v Sutton).

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14
Q
  1. The Occupier does not have to offer protection to adults in respect of…
A

The Occupier does not have to offer protection to adults in respect of ‘obvious dangers’, as in Ratcliff v McConnell, and this may apply to older children (Baldaccino v West Wittering).

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15
Q
  1. The Occupier is entitled to expect that a trespasser will not engage in…
A

The Occupier is entitled to expect that a trespasser will not engage in foolhardy activities, or where expertise should make them aware of the danger, (Donoghue v Folkestone Properties).

Here, [D has done all that is reasonable to keep C safe because…OR here, D has fallen below the standard of a reasonable occupier because…]

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16
Q
  1. TO CONCLUDE…
A

TO CONCLUDE, [ eg. D will / will not be liable].

17
Q

EXPLAIN AND APPLY THE RELEVANT DEFENCES:

  1. DEFENCE 1)

a. Under Section 1(5), an oral or written warning can be…

A warning may be less effective in respect of…

Here [eg. a small notice is not an effective warning with regard to a child of 8 when the climbing frame was so dangerous].

A
  1. DEFENCE 1)

a. Under Section 1(5), an oral or written warning can be a Full Defence if it is effective, (Westwood v Post Office). A warning may be less effective in respect of a child, depending on their age and understanding.

Here [eg. a small notice is not an effective warning with regard to a child of 8 when the climbing frame was so dangerous].

18
Q
  1. DEFENCE 2)

a) The Law Reform (Contributory Negligence) Act 1945 provides that any damages to the claimant can be reduced by a percentage according to the extent…

A
  1. The Law Reform (Contributory Negligence) Act 1945 provides that any damages to the claimant can be reduced by a percentage according to the extent to which the claimant has contributed to their own injuries, with even 100% a possibility, (Sayers v Harlow).

Here, [eg. C’s damages will be reduced by a percentage as he partly caused his own injuries when he didn’t wear a helmet].

19
Q
  1. Volenti Non Fit Injuria (Consent) is a Full Defence under Section 1(6), where the claimant…
A

Volenti Non Fit Injuria (Consent) is a Full Defence under Section 1(6), where the claimant fully understood
the nature of the risk rather than just being aware of its existence, and exercised free choice, (Ratcliff v McConnell).

Here, [eg. C did fully understand the nature of the risk when he swam in the pool and clearly exercised free choice when accepting the risk, so D can rely on the defence of volenti].

20
Q
  1. ONLY DISCUSS REMEDY IF ASKED FOR:
    As a REMEDY, under Section 1(8)…
A

ONLY DISCUSS REMEDY IF ASKED FOR:

As a REMEDY, under Section 1(8), a claim can be made for Personal Injury, not damage to property.

21
Q
  1. As a REMEDY, for C’s Personal Injury the court may award…
A

As a Remedy, for C’s personal injury the court may award compensatory damages under the DAMAGES ACT 1996, where the aim is to put the claimant in their Pretort Position.

22
Q
  1. Pecuniary (Financial) Losses will be claimed, such as…
A

Pecuniary (Financial) Losses will be claimed, such as medical bills, loss of earnings up to the trial and repair/replacement of property.

Special damages will be awarded for these losses.

23
Q
  1. Non - Pecuniary (Nonfinancial) losses will be claimed, such as…
A

Non - Pecuniary (Non Financial) losses will be claimed, such as loss of amenity, pain and suffering and any post trial losses.

General damages will be awarded for these losses.

24
Q
  1. C is under a duty to mitigate loss, which means to keep the loss to…
A

C is under a duty to mitigate loss, which means to keep the loss to a reasonable level by seeking prompt medical treatment [and/or getting the property repaired or replaced promptly].

HERE [apply the losses C has suffered, and the damages C will receive as a result]

A Level Law OCR Paper 2: Tort Law and Law Making (30 decks)

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