evaluation

Question 1

1957 (AO1)

Answer 1

• occupier owes a duty to lawful visitors,
  -> ‘to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there’ (section 2(2)) (Laverton),
• children s2(3)(a) ‘an occupier must be prepared for children to be less careful then adults. if the occupier allows a child on the premises then the premises must be reasonably safe for a child of that age’ (Perry v Butlins),
• people carrying out a trade s2(3)(b) - ‘an occupier may expect a person, in the exercise of his calling, will appreciate and guard against any special risks’,
• independent contractors ; only liable when 3 requirements have been met:
  1. must be reasonable for occupier to have entrusted the work (Bottomley),
  2. contractor hired must be competent to carry out the task,
  3. occupier must check the work,
• defences; warnings - s2(4)(a) warnings will be insufficient unless ‘in all circumstances in was enough to enable the visitor to be safe’

Question 2

1984 (AO1)

Answer 2

• defendant must be the ‘occupier’ or ‘premises’,
• applies to trespassers (someone who goes onto land without any kind of permission),
  -> ‘to take such care as is reasonable in all circumstances to see that trespassers don’t suffer injury on the premises by reason of any danger due to the state of the premises’,
• claimant can only claim where ‘the injury suffered is by reason of any danger due to the state of the premises or to things done or omitted to be done on them’ - Keown v Coventry NHS trust,
• occupiers duty only exists if; s1(3)
  a) occupier is aware of the danger or has reasonable grounds to believe it exists,
  b) knows that the trespasser is in the vicinity of the danger; Donoghue,
  c) risk is one which in all circumstances of the case, occupier may reasonably be expected to offer the other protection from,
• defences; warnings s1(5) - occupier discharges the duty ‘by takings such steps are reasonable’ - Platt v Liverpool city council,
• existence of a warning sign is not enough ; must be sufficiently clear to ensure the risk is obvious,
• trespassers can only claim for personal injury s1(8),

Question 3

claims under the 1957 act are treated more favourably by the courts

Answer 3

• for public policy reasons, courts favour the claims made by lawful visitors under the 1957 act. however, not all claims by lawful visitors are successful - it is not always fair to allow people to claim against occupiers,
• accidents happen and if all claims were successful, the courts would be flooded with even more claimants seeking compensation. Some cases have not allowed the claimant to receive compensation as it was thought it would open the ‘floodgates’ to more claims.
• e.g. Cole v Davis Gilbert, accident happened 2 years after the duty was owed and therefore too much time passed.

Question 4

1957 there is a ‘special duty’ towards children in s 2(3)(a) of the 1957 Act, protecting the vulnerable

Answer 4

• can seem unfair as it places higher level of care on the occupier, is it fair to expect the occupier to second guess the unpredictable nature of children?
• law struggles to decide when a child is responsible for themselves, based on age but what about maturity? Unclear legal distinction between ‘bigger children’ and ‘little children’,
• decision in Jolley gave a broad interpretation of foreseeability of risk and has developed the law to offer greater protection to children. Parental supervision was expected in Phipps, but this expectation has reduced in more recent cases,

Question 5

1957 - compensation culture

Answer 5

• it is fair a visitor should receive compensation if they are injured if the occupier is at fault and premises are not safe,
• however, this has developed into something of a compensation culture, where claims are made at every opportunity,
• courts seem to be sending a message that, despite development of compensation culture, visitors must take a personal responsibility for their safety and sometimes accidents happen for which there is no remedy,
• example of this is seen in Laverton v Kaipasha Takeaway where courts decided the shop owners took reasonable care and did not have to keep the premises completely safe, just reasonably safe,

Question 6

1957 and 1984 - objective and subjective tests

Answer 6

• use of subjective test is rare in tort,
• 1957 act uses an objective test to prove a duty in that the occupier does everything that is reasonable to make a visitor safe,
• seems fair as under the 1957 act the occupier knows the visitor is there and should keep them safe,
• the 1984 act requires the occupier is aware of the danger and foresee there could be a trespasser in the vicinity of the danger, rare to have a subjective test in tort but it reduces liability for trespassers,
• seems reasonable to use different tests for the different acts as the occupier should be more protected when it comes to trespassers, there are certain things that everyone should be protected against, but a trespasser should not be able to sue easily,

Question 7

1984 - legislation itself is designed to be a deterrent

Answer 7

• legislation acts as a deterrent as it is difficult for trespassers to claim under the 1984 act, limited damages awarded to trespassers as only lawful visitors can claim for damage to property as well as personal injury,
• trespassers are more restricted in what they can claim, which is right as the trespasser is breaking the law by being on the property. if they were able to claim in the same way as lawful visitors then people may trespass in the hope of sufficient damage,
• occupier must have knowledge of the danger in the 1984 act and is not required to check for danger, shows law is trying to limit the situations where trespassers can claim,

Question 8

1984 - limitations

Answer 8

• 1984 act gives trespassers the right to make claims, but judges have found reasons not to allow this, this reflects public opinion, which doesn’t agree that a person who shouldn’t be on premises can profit for their actions,
• example is where judges have introduced the concept of ‘obvious dangers’ into claims by trespassers, no duty is owed by an occupier when the trespasser is injured by an obvious danger,
• Ratcliff v Mcconnell, claimant, as an adult was not owed a duty due to the obvious danger in a swimming pool - should have appreciated an obvious risk, injured but could not claim compensation,

Question 9

1984 - mitigates harshness

Answer 9

• the 1984 Act mitigates some of the harshness of the law before it was introduced. before 1984 trespassers were offered no protection which could lead to serious injuries and no remedies.
• the 1984 act reflects a reasonable response to increased industrialisation and aims to raise standards of society. it also provides remedies for people who are injured in circumstances where the danger was unreasonable to allow on any property.
• public opinion does support the view that an occupier should not deliberately injure a trespassers. the trespasser should accept personal responsibility for their actions and should not access land that does not belong to them. the 1984 act should be reserved for the most serious cases.