Occupiers Liability EVALUATION Flashcards
Explain
Occupiers liability is when an occupier is liable for damage caused to someone by the state of their premises. There are two Acts covering this - the Occupiers Liability Act (OLA) 1957, which applies to lawful visitors, and the OLA 84 which applies to trespassers. For both, D must be an occupier of a premises. Wheat v Lacon defines an occupier as anyone with enough control of the premises. A premises is not strictly defined, but S1(3)(a) of the OLA 57 says it includes land and buildings, as well as fixed and moveable structures, vehicles, vessels and aircraft.
Lawful visitors can be invitees, licencees, contractees, or those entering for a statutory purpose. Anyone other than these people will be trespassing, as they do not have permission to be on the premises.
Under S2(1) OLA 57, D owes a common duty of care to all lawful visitors. Comparatively, under S1(3) OLA 84, D only owes a duty to trespassers on 3 conditions: (a) that they knew of the danger or had reason to believe it existed, (b) that they knew or had reason to believe the trespasser would be near the danger, and (c) the danger was one D should offer protection against (i.e. the risk is not obvious like in Tomlinson v Congleton).
Under S2(2) OLA 57, D must take reasonable care in the circumstances to make sure lawful visitors are reasonably safe for the purpose of their visit. Laverton v Kiapasha shows this can consider any precautions D has taken, and Dean v Debell clarifies that D does not need to guarantee C is safe, just keep them reasonably safe. Under S2(3)(a) children are owed more protection (Glasgow Corp v Taylor), and under S2(3)(b) professionals are owed less care for risks part of their profession (Roles v Nathan). However, under S1(4) OLA 84, D must take reasonable care in the circumstances to keep C safe, but there is no special protection to children (shown in Keown v Coventry NHS)
Duty for lawful visitors is objective whereas trespassers is subjective
The duty for lawful visitors is an objective one; D always owes a duty to keep C reasonably
safe – it does not matter if D knew of the danger. Whereas the duty for trespassers is
subjective, as D must know of the danger and know of the trespasser (or a risk of these).
This creates justice because it ensures protection for lawful visitors (making it certain), and only punishes D for a failure to protect trespassers in limited situations – which seems
fair. However, the subjective test for trespassers is inconsistent with other torts such as negligence (which are objective and based on the reasonable man), and means that each a trespasser case will be decided on its own facts, creating potential uncertainty.
Consequently, it is much more certain when a lawful visitor is likely to be successful than
trespassers
Don’t define key terms
The Occupiers Liability Acts do not define many key terms, and so judges have had to
interpret these. For instance, Wheat v Lacon defines occupier, and s1(3)(a) OLA 57 only
gives examples of premises rather than strictly defining it. This is positive because it allows
judges to be flexible when making decisions rather than having to make an absurd decision
based on a limited definition. It also allows for the law to change and update rather than
being time locked. However, if the definitions keep changing, this can create uncertainty in
the law and it may be hard for people to prepare properly for their trials. Furthermore, judges may interpret occupier/premises in a way Parliament would not really have wanted, thereby undermining their intent. Consequently, it may be a little less certain when a claim is likely to
succeed
Challenging to work out when someone is a trespasser
Additionally, it can be quite challenging to work out when someone is a trespasser. For
instance, it may be challenging to know when someone who was initially a lawful visitor has
exceeded their permission, or when someone can be viewed as a licensee with implied
permission. This matters because the law is much more favourable if C can be viewed as a
lawful visitor, so having a blurred line can be problematic. However, it seems morally right
that there should be differing levels of protection for a trespasser and lawful visitor, and judges can use their legal expertise to work out when it is right for someone on the
borderline to receive greater or less protection. Therefore having a degree of uncertainty may lead to more just outcomes
OLA 84 does not offer children more protection
The OLA 84 does not offer children more protection than adults (Keown v Coventry). This
creates a high degree of certainty as to the standard owed, but could be unfair given that
children are more vulnerable. The OLA 57 recognises this and does offer children more
protection; but if the child is particularly young, then there is an expectation that parents will
bear more responsibility (Phipps v Rochester). This then makes it uncertain as to how
much protection D must offer to fulfil their duty for younger children. Therefore the conflicting rules with children add more uncertainty to the law
Duty is owed to trespassers
The OLA 84 means that a duty can be owed to trespassers. This is can seem unfair to
occupiers because the trespasser has done something wrong by being a trespasser in the
first place, and it seems morally backwards that D may owe a duty to protect someone
breaking onto D’s land. However, D does only need to keep land ‘reasonably safe’, the duty
only applies in limited situations (such as knowing there could be a trespasser in the first
place), and the availability of insurance may mitigate how unfair this seems at first glance.
Therefore the law is not as unfair as it may appear at first glance
Judges encouraged claimants to take more responsibility
In recent years, judges have encouraged potential claimants to take more responsibility and avoid obvious/everyday dangers like in Tomlinson v Congleton. This is positive because it encourages people to keep themselves safe, makes sure occupiers do not have an unreasonable responsibility to keep their land safe from all danger, and potentially reduces the number of future claims if claimants know that they cannot sue occupiers in all situations. However, the very purpose of this tort is to make sure occupiers keep their land safe from danger, and the courts being reluctant to allow claims may lead to occupiers lowering their standards of safety. It seems questionable to say that an obvious danger is something that D does not have to do something about, for instance. Therefore this is another instance of the law not being unfair on occupiers, and perhaps it is being too generous.
In recent years, judges have encouraged potential claimants to take more responsibility and avoid obvious/everyday dangers like in Dean v Debell/Laverton v Kiapasha. This is
positive because it encourages people to keep themselves safe, makes sure occupiers do
not have an unreasonable responsibility to keep their land safe from all danger, and
potentially reduces the number of future claims if claimants know that they cannot sue
occupiers in all situations. However, the very purpose of this tort is to make sure occupiers
keep their land safe from danger, and the courts being reluctant to allow claims may lead to occupiers lowering their standards of safety. It seems questionable to say that an obvious
danger is something that D does not have to do something about, for instance. Therefore
this is another instance of the law not being unfair on occupiers, and perhaps it is being too
generous.
OLA 57 duty is owed to all lawful visitors
The OLA 57 means that a duty is owed to all lawful visitors. This is sensible because it
encourages occupiers to keep their land safe, which is incredibly important in busy places
such as shops, venues etc. where there would otherwise be a great risk if no one was
responsible for the premises. However, D does only need to keep land ‘reasonably safe’,
there are several defences to this tort, and the availability of insurance may make D feel less
inclined to make land as safe as possible, somewhat undermining the hopes of a high
standard of care. Therefore the current law does not seem that unfair on occupiers
