discuss the extent to which OL 1984 is fair on occupiers Flashcards
definition
governs duty of care owed by occupiers to unlawful visitors, typically trespassers. distinct area of law that balances the rights of property owners with need to protect individuals from harm.
what is a trespasser
individuals entering land without permission or exceeding the permission granted (Addie v Dumbreck and The Calgarth)
when does a duty arise and what section is it under
s1(3); * occupier aware of danger or has reasonable grounds to believe it exists.
* occupier knows or believes that trespasser is in vicinity of danger.
* risk is one against which occupier could reasonably be expected to offer protection.
when must an occupier take reasonable care to prevent injury due to danger and what section is it under
s1(4); (Rhind v Astbury Water Park and Tomlinson v Congleton BC) demonstrate factors such as nature of the premises and practicality of precautions. standard objective, but allowances are made for age and capacity of the trespasser (Keown v Coventry Healthcare NHS Trust)
when does law permit occupiers to exclude liability using warnings and what section is this under
(s.1(5)) or defenses like volenti (s.1(6)), (Westwood v Post Office and Ratcliffe v McConnell) scope of liability limited to personal injury, not property damage, making law less burdensome on occupiers.
difference between 84 and 57
1984 incorporates lower standard of care compared to 1957 Act, reflecting a reasonable compromise
one reason fair
Occupiers only liable where they know of danger, foresee presence of the trespasser, and could reasonably mitigate risk. This reduces likelihood of liability for unforeseeable risks (Tomlinson).
another reason fair
Defenses like volenti and contributory negligence limit liability for claimants’ reckless or foolhardy behavior (Donoghue).
other reason fair
limitation to personal injury and not property damage ensures that occupiers are not overly penalised for non-serious incidents.
further reason fair
Act balances property rights with need for safety, moving away from the inhumane standards of pre-1984 law (Addie v Dumbreck) while still recognising challenges faced by occupiers.
reason unfair
wide definitions of “occupier” and “premises” broaden scope of liability. Occupiers can be liable for anyone from burglars to those innocently trespassing, creating an unreasonable duty to all trespassers.
another reason unfair
Increased litigation, driven by a growing compensation culture, raises insurance premiums and discourages socially beneficial activities (Tomlinson). The costs of compliance may disproportionately impact small businesses or private individuals.
other reason unfair
Some argue trespassers should accept responsibility for their actions, as liability shifts consequences onto occupiers. This principle of personal responsibility was a concern (Law Commission Report No. 75) which questioned whether statutory intervention was necessary when common law could evolve post-Herrington v BRB.
further reason unfair
courts’ application of Act inconsistent, with some cases (Swain v Natui Ram Puri) leading to overly generous interpretations of liability, while others restrict claims too harshly (Baldacchino v West Wittering Estate). These inconsistencies may undermine fairness of law.
