Eval of OL - Trespassers

Question 1

It is unfair to find occupiers responsible for injuries to trespassers

Answer 1

Trespassers are not authorized to be on land and decide to enter at their own risk

Therefore it seems unfair that occupiers should be made to pay for incidents – especially as some occupiers might be managing large amounts of property

However the common duty of humanity established in BRB v Herrington is justified as in some situations occupiers may be aware of the risk of trespass and the risk of injury and therefore should be acting to avoid the injury

Question 2

Additional rules for children are justified

Answer 2

Occupiers must take additional care to deal with risks where there is potential danger to children - may also not know legal implications by trespassing

Seen in Herrington where railway board knew there was hole in fence

Can be argued occupiers should be held to higher standard especially when they are aware of a risk

However, may be seen as unfair as occupiers may expect children to be supervised

Question 3

The law in this area is more restrictive than for lawful visitors

Answer 3

This makes the law fairer, as the rules make it much harder for a trespasser to make a claim than for a lawful visitor, which seems in line with the fairness in tort law

prop dmg and personal injury 1957, just injury 1984

subjective vs objective which is justified

Question 4

Occupiers have numerous opportunities to escape liability

Answer 4

This seems fair as it gives occupiers reasons why they will not need to pay compensation to trespassers, such as if the risk was obvious and there occupier had no reason to expect the trespasser to be where they were

Example - Ratcliff (obvious risk)
Higgs (trespasser’s presence not expected)
Rhind (D not aware of the risk themselves)

This makes the law fair as D will only pay in very limited circumstances