occupiers liability evaluation Flashcards
lawful visitors- points (5)
Supports principles of Tort Law
Claims by lawful visitors favored over trespassers
D is not liable for obvious risks
Additional protection provided for children
Reform - compulsory insurance
Supports principles of Tort Law dev
Requires defendant occupiers to protect those who they can expect to be on their land
OLA 1957 uses objective test so D is expected to do what is reasonable – this makes sure the visitor is kept reasonably safe
Supports principles of Tort Law extra
This ensures the focus is on safety of the claimant which is principle of tort law – and also it sends out a message to occupiers to ensure they keep visitors safe
Claims by lawful visitors favored over trespassers dev
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
Also good for policy reasons as prevents opening floodgates to too many claims
For example, under OLA 1957, lawful visitors can claim for property damage and personal injury, whereas under OLA 1984 trespassers can only claim for personal injury
Claims by lawful visitors favored over trespassers extra
Also the rules for trespassers are subjective, whereas for lawful visitors it is objective – making it harder to prove a claim for a trespasser as they have to show D was personally aware of the risk and the trespass
This provides a good balance as there is still a way to claim for trespassers, but justifiably this is much harder to do
D is not liable for obvious risks dev (case inc)
The occupier only has to do what is reasonable to keep lawful visitors safe – and therefore this is fairer on defendants as it ensures they only pay when they have fallen below this standard
Seen in Laverton v Kiapasha à lawful visitors are still expected to keep themselves safe, and there is no requirement for D to make premises completely safe
D is not liable for obvious risks extra
Also warning signs can be used to avoid liability – but are also no needed against risks which should be obvious to visitors à Staples
Therefore the rules help to protect defendants and provide fairness
Additional protection provided for children dev (case inc)
It is justifiable to require occupiers to take additional care when they know lawful visitors may include children who may be less careful
Seen in the rules for allurements which D must take extra care over à Glasgow v Taylor
Provides excellent levels of protection for the vulnerable
Additional protection provided for children extra (case inc)
However can be unfair for defendants – children can be unpredictable, and “bigger” children should be aware of risks, and they should be supervised by parents (Phipps v Rochester)
Reform - compulsory insurance dev
All occupiers of land would be required to have insurance which covers possible claims by visitors – both lawful and trespassers
Would lead to no-fault liability and gives compensation for all claims, keeping cases out of the courts
Reform - compulsory insurance extra
However this would increase premiums for occupiers – most of whom will never need to use it
Also means there is not deterrent effect to encourage occupiers to keep land safe
trespasser points (5)
Unfair for occupiers
Additional protection for children is justified
Law here is more restrictive than for lawful visitors
Occupier’s have numerous chances to escape liability
Law is trying to ensure protection for all
Unfair for occupiers dev
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
Unfair for occupiers extra
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
Additional protection for children is justified dev (case inc)
Although it is hard to succeed with the law in this area, the few cases which have succeeded have involved those where children have been injured – showing that the courts appear more likely to impose a duty if the wellbeing of a child may be at risk
This was seen in BRB v Herrington where the railways board were aware that the hole in the fence was next to child’s play area, therefore the duty of “common humanity” was created and this was as the BRB could have protected the life of a child by taking minimal action
Additional protection for children is justified extra
However, it could still be seen as unfair because occupiers may expect children to have parental supervision if they are not at an age to appreciate such risks
Law here is more restrictive than for lawful visitors dev (examples to do with acts- ur doing gr8!)
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
For example, under OLA 1957, lawful visitors can claim for property damage and personal injury, whereas under OLA 1984 trespassers can only claim for personal injury
Law here is more restrictive than for lawful visitors extra
Also the rules for trespassers are subjective, whereas for lawful visitors it is objective – making it harder to prove a claim for a trespasser as they have to show D was personally aware of the risk and the trespass
This provides a good balance as there is still a way to claim for trespassers, but justifiably this is much harder to do
Occupier’s have numerous chances to escape liability dev (case example)
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 à Ratcliff v McConnell (obvious risk);
Occupier’s have numerous chances to escape liability extra (case example)
Higgs v Foster (trespasser’s presence not expected); Rhind v Astbury (D not aware of the risk themselves)
This makes the law fair as D will only pay in very limited circumstances
Law is trying to ensure protection for all dev
(case example)
All that is required for D to avoid liability it to use precautions against obvious risks which could be a danger to anybody – so by allowing claims in this area it encourages occupiers to keep everyone safe – which is the aim of tort law
Seen in Westwood v Post Office – warning signs, or putting in barriers or fences would allow D to escape liability
Law is trying to ensure protection for all extra
However it still remains that the trespasser should not be on D’s land, so has reason to feel that liability may be unjustified
comparisons- what are the eval points (5)
What can be claimed for
Tests used by Court
Public opinion reflected in tests
Law does allow for claims for injuries on another’s land
Both prevent claims for obvious risks
What can be claimed for (difference) dev
Lawful visitors OLA 1957 claim can be for property damage or personal injury
Trespassers s.1(1) OLA 1984 can only claim for personal injury
Justified as trespassers deserve less protection
what can be claimed for extra (difference) (case example)
Also acts as deterrent to discourage trespassers from entering premises unlawfully and from trying to make a claim if they are injured whilst doing so (keeps case out of the courts)
Tomlinson v Congleton Lord Hoffman, trespassers “should not ordinarily be able to force duties upon unwilling hosts”
tests used by courts dev (case example)
Lawful visitors objective test Laverton v Kiapasha – keep visitors reasonably safe, but no need to be completely safe
Trespassers s.1 OLA 1984 subjective test, D must be aware of the risk of injury and the risk of trespass
Makes it more difficult for a trespasser to claim as they have prove D personally knew both elements
Public opinion reflected in tests (difference) dev
Harder for a trespasser to claim than a lawful visitor (D must be aware of the risk of injury and the risk of trespass)
This is supported by public opinion which shows fairness
Too many claims for trespassers would clog up the courts
Public opinion reflected in tests extra (case example)
However this is justified on the basis of fairness for the defendant
Revill v Newbury homeowner injured burglar and had to pay compensation, but public donated to fund to help D pay compensation
Law does allow for claims for injuries on another’s land (similarity)
Provides justice for claimants supports ideas of tort law
Even for trespassers, there is a common duty of humanity where D is aware that something dangerous exists on their land and that there is a chance of unlawful visitors who may be injured as a result BRB v Herrington
Law does allow for claims for injuries on another’s land extra
