evaluation OLA Flashcards
evaluation OLA (defences)
Defences available for OLA include the full defence of warning signs s2(4). In order for warning signs to qualify as a defence the warning sign alone must be enough to warn the visitor/ trespasser effectively.
(WESTWOOD V POST OFFICE - D exceeded permission as a lawful visitor and became a trespasser and ignored warning sign.
Allowing an occupier to defend themselves where they’ve provided adequate warning is fair as they have demonstrated sufficient precautions to prevent harm.
trespassers evaluation
OLA 1984 outlines that a victim deemed to be a trespasser can make a claim if they suffered some kind of injury due to the state of the premises of the defence, stated in S1(4). This arguably could be viewed as a negative as why should it be expected that a trespasser would enter the land of another when they have no legal entitlement too. However the law in itself is in respect for public policy and acts as a way of actively serving the general public. In addition to prevent the defendant being bombarded with claims the standards outlined within the act for a victim to claim are very restrictive as seen in the case of Ratcliff v Mcconnell. This case established that an occupier is not expected to guard against all risk
Fault based system
Occupiers liability is a fault based system meaning that there is a requirement to prove that a fault has been committed by the defendant of which has resulted in the damage or injury (burden of proof falls upon the claimant).
Therefore issues may arrise to do with
- costs : need for lawyers (equality of arms), need for witnesses and evidence of which can cost money to attain
- delays - specifically if cases go to court but can also occur whereby the case involved insurance parties
Obvious danger
The rule that no duty is owed in cases where the damage/ injury was caused by what is deemed to be an obvious danger can be harsh (Ratcliff v Mconnell)
Possible reform
Introduction of no fault policy- reducing the ne
