Occupiers' Liability Evaluation Flashcards
Give two ways the OLA 1957 is fair on claimants.
1) Multiple occupiers - allows them to maximise indemnification by suing the walthiest - clearly demonstrated in Wheat v. E. Lacon - brewery and landlord - logical to sue the brewery - however in this case it was the landlord who was the only occupier as the lightbulb was exclusively in his purview - substantive justice - fair as decision may be applied to similar cases - good for lawyers when advising their clients.
2) Child claimants - protects those more vulnerable to concealed dangers on premises - e.g. s.2(3)(a) - warns children may be less careful, by implication, a higher standard is required - also courts are eager to protect children from allurements - e.g. berries in Glasgow Corp v. Taylor. - thus law offers holistic protection of those who may be less careful by virtue of heir cognition.
Give two ways the OLA 1957 is unfair on occupiers.
1) Whilst s.2(3)(a) offers greater protection, there is a grey area as to when a parent will be responsible and when an occupier will be responsible for children also when a child will no longer be covered by the higher standard - procedural justice criticises as legal principle cannot be applied equally to each case - however courts are eager to provide an age - e.g. Titchener v. BRB - 15 year old could recognise the risks - however difficult for lawyers to advise clients.
2) s.2(2)’s definition of duty is unfair as it uses vague terms such as ‘reasonably safe’ - any effective law should be unambiguous so as to reduce the scope for interpretation as far as possible - procedural justice criticise as it means the same legal principle cannot be applied fairly to produce an equitable decision - may lead to the d. taking excessive precautions that really aren’t necessary - unfair.
Give two ways the OLA 1957 is fair on occupiers.
1) s.2(3)(b) is fair as it reduces the level of duty owed by occupiers to persons exercising a calling or to the work of independent contractors - they are ultimately more knowledgeable than the occupier - in addition it is fair that they will be liable for the work of an IC if it is obvious - e.g. Woodward v. Mayor of Hastings - thus encouraging higher standards when employing ICs.
2) Fair that the d. is able to exclude liability using a warning - means the law doesn’t obligate high standards - however unfair that they cannot exclude liability for children using a sign - occupiers of attractions (e.g. fairs) may have to ban children or take precautions to remove many of the ‘dangers’ - may also remove the ‘attractive’ element of the premises - either way d. may lose revenue.
Give two ways the OLA 1984 is fair on claimants.
1) From a procedural justice perspective, it is fair as the law assumes that all adults are competent at assessing the dangers of a particular premises, as such, Volenti will apply in most cases. However, this could be regarded as unfair as it may lead to a passive attitude amongst the occupier as the law reinforces to them the idea that the majority of adult claims will fail - law fails to encourage higher standards among the occupier - ultimately unfair.
2) s.1(3) could be regarded as fair as it compares the actions of the occupier to those of the ordinary reasonable occupier - meaning the occupier is held accountable for their premises - they are judged not on what they believe to be reasonable - Young v. Kent - brittle skylight was easily protected against - demonstrating that the law doesn’t require high standards of the d. - fair on both parties.
Give two ways the OLA 1984 is unfair on occupiers.
1) The duty under s.1(3) is ultimately unfair as it can produce undesired and repugnant results that are considered harsh on the occupier - e.g. Revill v. Newbury - procedural justice says it is fair as it as legal principle is applied to each claimant equally regardless of circumstances - however substantive justice - unfair as occupiers owe a duty to those who should not have been there in the first place - unfair.
Give two ways the OLA 1984 is fair on occupiers.
1) s.1(4) is fair as it allows a lawful visitor to become a trespasser if they go beyond their permission given to them to enter - utilitarian perspective - is fair as it means the law offers greater protection to the majority who respect the occupier’s rquiests when entering (stay under 1957) - offers fewer protections to the few that disrespect them - law can be considered fair in its apportionment of protections.
