Section B- Occupiers Liability Flashcards

Question

Bottomley v todmorden cricket club (IC)

Answer 1

Hired a stunt team to carry the firework display but were not insured to use their own hand made fireworks Held- cricket club was not able to pass liability as hadn’t carried out competent checks and IC was not competent to carry out the task

Answer 2

School couldn’t pass liability as didn’t check if the ice had been cleared

Answer 3

Contributory negligence Volenti non fit injuria (consent) Warning notices Exclusion causes

Answer 4

Traders is when the trader is injured and have to find whether occupier is liable or the traders fault and they are support to know the risk. IC is when somebody is injured and occupier can pass liability to IC if they were in charge to keep something safe in their specialist area.

Answer 5

When the C is partly responsible then the law reform (CN) act applies and damages can be reduced according to the amount of C fault Yvonne Forrest v Iceland foods ltd

Answer 6

C tripped on raised edge outside supermarket- damages were 15000 Held- court deducted 25% as it was Cs fault for not looking where they were going

Answer 7

Will be no liability where the C has consented to the danger. Must show: a. Claimant had full knowledge of the precise risk involved. B.the claimant exercised free choice. C. C voluntarily accepted the risk.

Answer 8

Complete defence and the warning can be oral or written. OLA states that a warning is ineffective unless ‘in all the circumstances it was enough to enable the visitor to be reasonably safe’ if there is extreme danger there is expected to put up additional warnings. Rae v mars (UK) ltd Staples v west Dorset district council

Answer 9

A warning sign in a sheet about a pit in the shed was not sufficient Whereas if the danger is ovious and the visitor is able to appreciate it, no additional warnings is necessary

Answer 10

The C slipped on wet algae and claimed on the basis that there were no warning signs Held: the algae was obvious so no further warnings were required

Answer 11

Under OLA 1957 an occupier is able to ‘restrict, modify or exclude his duty by agreement or otherwise’ able to limit or exclude his liability for any injury caused to the visitor e.g. in car parks might restrict or remove liability. A trader cannot exclude or restrict liability for death or personal injury resulting from negligence’

Answer 12

conflicts with the separation of powers as common law is being referred to, parliament should clarify this definition. this means judges are using their own judgement which could lead to judicial creativity. however this allows judges to be flexible with their decisions and create the best outcomes.

Answer 13

increases likelihood of the claimant having a successful claim. in turn increases the cs access to justice. however the decision in bailey v armes appears to be a fair decision in this case but an issue will usually arise if the courts can not establish the occupier because the lawful visitor without a remedy.

Answer 14

due to the vague definition, the term premises is open to interpretation and therefore lead to inconsistencies. this in turn will lead the law being uncertain as different judges can interpret the thing in question differently and therefore conflicts with the rule of law.

Answer 15

purpose in passing this act was to create a common duty of care to all lawful visitors because prior to the act different duties were owed to different types of lawful visitor. the act had the effect of being fairer and more consistent to different lawful visitors and possibly fairer to the occupier also. this adheres to parliamentary sovreighnety.

Answer 16

one problem is that it is subjective from judge to judge therefore can be difficult to know the outcomes of a case. this means lawyers are unable to advise clients about how safe reasonably safe actually is so hard to predict outcomes. this leads to claimant not pursuing the case due to the feat of the judge favouring the occupier, particularly if its a wealthy company.

Answer 17

yes- people can get injured and not receive compensation because there claimed to be some safety. however not possible to maintain and may deter people from owning businesses in the fear of being sued, this would remove the responsibility of c and blame D over things which may be hard to keep factors completely safe at all times. this is evidenced in Laverton v kiapasha takeaway supreme where at busy times they cant control all risks but did the best they could.

Answer 18

the occupier is protected as long as they kept some safety and protects them against frivolous claims which prevents the courts from being overwhelmed. the C can receive compensation if there was a lack of safety and the courts determine this so avoids occupiers from cutting corners. however as liability is only for the conditions of premises it may limit possible claims.

Answer 19

the opposite ruling would open the floodgates for additional claims. this may then set an unrealistic high level of responsibility upon occupiers.

Answer 20

the rule relating to allurements was decided before the act but is still used to effectively protect children as it lowers the threshold required for breach. this means occupiers must provide greater protection

Answer 21

its fair on the claimant as they are eligible to compensation as long as the age of the child justifies the level of protection provided not being sufficient. this is also fair on occupier as they can escape liability for example if they are so young its the parents responsibility.

Answer 22

it ensures children are more likely to claim due to the language being non-specific- 'child of that age'- claim is more likely to be successful as it if anything is foreseeable.

Answer 23

there is a lack of age limit when a parent should stop taking responsibility and an occupier should become responsible. the case of Phipps also shows further inconsistency in this area as the decision conflicts with the case of Glasgow where the parents were able to claim for the death. however this may have been because children could be expected to be alone is parks without their parents. parliament need to reform this so the courts and public are clear as to the boundaries of the law. however most people would agree that parents should take some of the responsibility for their children.

Answer 24

risk relevant to the trade in question can allow the occupier to escape liability. this could be an issue if inexperienced e.g. apprentice and not fully aware of risks involved can be left without compensation. however the tradesman who was injured related to their trade should have their own insurance to cover medical expenses.

Answer 25

yes- its a basic question to ask if the contractor was insured and its unclear why they didnt check. this encourages a greater standard of care as the public could be injured due to incompetence. however this is arguably too high a standard and doing lots of checks can be time consuming. the stunt team should not be doing it if they are uninsured.

Answer 26

As the occupier avoids liability due to them not being at fault but the claimant can still claim from the contractor. Therefore the C gets compensation for injuries and ensures IC takes accountability when they are at fault and can’t hide behind not being the occupier. However the requirements are difficult to evidence so O may have to take liability.

Answer 27

Children may not be able to read warning signs and therefore what might be effective for an adult wont be for a child. Furthermore children willingly take risks and as a result a noticeable warning signs could further allure children to the danger. Therefore occupiers need to take greater precaution such as fencing off dangers but will be an expense to occupier which may be costly.

Answer 28

A person who has no permission or authority to be on the occupiers premises or a visitor who has gone beyond their permission on the premises

Answer 29

Originally the occupier owed no duty at all to the trespassers as long as injury wasn’t deliberate. This seemed harsh especially in cases such as addie v dumbrek so HOL overruled using the practice statement. The LC then investigated this area and issues a report in 74 then the OLA 1984 was passed from ideas from, BRB v Herrington

Answer 30

Adult and child trespassers

Answer 31

The occupier owes a duty to people who are not lawful visitors for personal injury only

Answer 32

Yes as they should not be there in the first place so its not fair for occupiers to be liable for an injury that should not have happened This deters people from trespassing as they are not entitled to the same benefits However some people may not know they are trespassing and could suffer a personal injury and property damage so restricted compensation

Answer 33

S.1(3)(a) he is aware of the danger or has reasonable grounds to believe it exists S.1(3)(b) he knows or has reasoable grounds to believe that there are trespassers in the vicinity e.g. in swain v natural ram puri- not had reasonable grounds to believe child was there. S.1 (3) (c) the danger is one against which the occupier can be reasonably expected to provide same protection

Answer 34

Public opinion- most of public agree trespassers shouldn’t be protected when they are in the wrong and occupiers shouldn’t have a level of protection for living their lives This however conflicts with the ROL as its not certain/ascertainable if judges are making different decisions

Answer 35

The duty is to take such care as is reasonable in the circumstances It is an objective test which depends on the circumstances of each case e.g. greater risk, more precautions needed to take.

Answer 36

Obvious dangers- O not liable if injured by obvious danger Time of day or year- O not liable if didn’t expect anyone the time and day of the year Warning signs- O not liable if warning signs ignored- don’t have to spend lots of money making safe from obvious dangers Presence of a trespasser- not liable if have no reason to expect the presence of a trespasser Danger known- not liable if not aware of danger and no reason to suspect danger existed

Answer 37

Ratcliff v McConnell

Answer 38

Jumped into open air swimming pool at night, decided O should not guard against ovious dangers Trespassers

Answer 39

Donoghue v Folkestone properties

Answer 40

Injured whilst trespassing on a harbour in winter in midnight and hit a grid on ground at low tide Occupier didn’t owe C duty of care under 84 act and wouldn’t expect trespasser to jump at that time or day of the year

Answer 41

Tomlinson v congleton borough council

Answer 42

Council put warning signs around a lake and c swam and was injured Was no breach of duty as not reasonable to spends lots of money protecting visitors being injured

Answer 43

Higgs v foster- could not have anticipated police officers presence on the premises

Answer 44

Rhind v astbury water park- not know there was a fibreglass container in the water park

Answer 45

Rhind v astbury water park- not know there was a fibreglass container in the water park

Answer 46

The same statutory rules apply to child trespassers as they do adult trespassers

Answer 47

Keown v Coventry healthcare NHS trust Baldaccino v west wittering

Answer 48

14yr old suffered injuries after climbed beacon on beach during low tide Claim failed as there is no duty to warn of ovious danger

Answer 49

Yes as occupier shouldn’t have to be liable for a child’s wrongful decisions and can discourage children from trespassing acting as a detterance. However its obvious children may do this as they are less careful and trespassing can act as an allurment so occupiers should guard against dangers as its ovious children might trespass

Answer 50

A warning may be an effective defence if the danger is stated in clear terms as in Westwood v post office whether the warning applies to child trespassers will depend on age and understanding of the child

Answer 51

For contributory negligence the judge decides what is needed appropriate therefore may lead to judicial creativity and their own opinions being used and so different decisions which goes against the ROL as it isn’t certain or ascertainable but can lead to fair decisions as the occupier can have reduced damages for the claimants mistakes. The fact that warning signs depends on age and understanding- there is no defenition on when they are able to fully understand warnings signs which means outcomes of cases are unpredictable therefore lawyers are unable to advise clients which means parents with children are less likely to pursue claims and wont be compensated for injuries.

Answer 52

The 57 act allows for claims for personal injury and for damage to proper whereas the 84 act allows for claims of personal injury only this shows that trespassers compensation can be more limited which is deemed fair by many. There are different tests in the acts which could cause confusion. The 1957 act judges the Ds act objectively so they’ve have to do everything that is reasoable to ensure the visitor is safe. Whereas 84 act only imposes a duty subjectively. A subjective test is inconsistent with most torts and has unusual outcomes. 84 act requires the occupier to have actual knowledge of the danger whilst the 57 act doesn’t seem to. This means that 57 act is easier to prove so lawful visitors are protected more than trespassers. No duty is owed by the occupier when the trespasser is injured due to obvious danger. This concept of obvious dangers has recently been introduced into claims under the 57 act showing consistency in the law.

Answer 53

No fault liability- introduced so the occupier would have to pay compensation for all injuries on their premises. Unlikely introduced because all occupiers would need insurance. A state run compensation scheme paid for by an extra tax on all property insurance policies. Personal responsibility imposed by judges- despite rights given to 84 judges have imposed extra hurdles on claims by trespassers so vert few claims succeed and this also seems to apply to lawful visitors e.g. dean and chapter of Rochester cathedral v debell 2016.

Answer 54

Pecuniary losses Non pecuniary losses

Answer 55

Quantified into momentary terms e.g. injury taking time off work Special damages

Answer 56

Can’t be quantified into monetary terms e.g loss General damages