OL Trespassers Eval

Question 1

P: Unfair to find occupiers responsible for injuries to trespassers

Answer 1

Dev: Trespassers are not authorized to be on land and decide to enter at their own risk
Therefore seems unfair that occupiers should be made to pay for incidents especially as some occupiers might be managing large amounts of property
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 2

P: The additional rules for children are justified

Answer 2

Dev: Occupiers must take additional care to deal with risks where there is potential danger to children- as safety of children is paramount, children may not be aware of the legal implications of their trespass
Seen in BRB v Harrington where the railways board were aware that the hole in the fence was next to child’s play area
Children can be expected to be less careful and less aware of risk
However still seen as unfair as occupiers may expect children to have parental supervision

Question 3

P: The law in this area is more restrictive than for lawful visitors

Answer 3

Dev: Makes the law fairer as the rules make it much harder for a trespasser to make a claim than for a lawful visitor
Under OLA 1957, lawful visitors can make claim for property and personal injury
OLA 1984 trespassers is personal only
Also rules for trespassers subjective, yet lawful objective, making harder to prove claim for trespassers
Provides a good balance as there is still a way for trespassers, but justifiably much harder

Question 4

P: Occupiers have numerous opportunities to escape liability

Answer 4

Dev: Seems fairer 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
E.g. Ratcliff (obvious risk), Higgs v foster (trespasser not expected)
This makes the law fair as D will only pay in very limited circumstances

Question 5

P: The law is trying to ensure protection for all

Answer 5

Dev: All that is required for D to avoid liability is 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 sign would allow D to escape liability
However it still remains that the trespasser should not be on D’s land, so has reason to feel liability is unjustified