occupiers liability evaluation

Question 1

lawful visitors- points (5)

Answer 1

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

Question 2

Supports principles of Tort Law dev

Answer 2

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

Question 3

Supports principles of Tort Law extra

Answer 3

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

Question 4

Claims by lawful visitors favored over trespassers dev

Answer 4

 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

Question 5

Claims by lawful visitors favored over trespassers extra

Answer 5

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

Question 6

D is not liable for obvious risks dev (case inc)

Answer 6

 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

Question 7

D is not liable for obvious risks extra

Answer 7

 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

Question 8

Additional protection provided for children dev (case inc)

Answer 8

 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

Question 9

Additional protection provided for children extra (case inc)

Answer 9

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)

Question 10

Reform - compulsory insurance dev

Answer 10

  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

Question 11

Reform - compulsory insurance extra

Answer 11

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

Question 12

trespasser points (5)

Answer 12

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

Question 13

Unfair for occupiers dev

Answer 13

 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

Question 14

Unfair for occupiers extra

Answer 14

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 15

Additional protection for children is justified dev (case inc)

Answer 15

 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

Question 16

Additional protection for children is justified extra

Answer 16

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