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Occupier's Liability Evaluation - Coggle Diagram
Occupier's Liability Evaluation
Intro
Occupier's Liability
refers to two acts that make up this section of law - OLA 1957 (
lawful visitors
) and OLA 1984 (
trespassers
).
The 1957 Act covers those that are lawful visitors, e.g those who are
invitees,
given permission to enter (express or implied), those who enter
contractually
(e.g paying to enter).
The 1984 Act covers trespassers, e.g those who have gained access
without permission
or have
overstepped
their permission to a premises.
1957 Act
Lawful visitors are owed a
common duty of care
by an occupier. This means that the occupier must keep a visitor
reasonably safe
from harm (e.g
Laverton v Kiapasha Takeaway Supreme
)
The Act allows claims for
personal injury and damage to property
- this is fair as it would not be fair for occupiers to have to take steps to actively protect trespassers.
The test for a duty of care in this Act is
objective
, lining up with standard tort claims.
Occupiers must guard against anything considered an
'allurement'
to children (
Glasgow Corporation v Taylor
); this is therefore a
lower bar for duty of care
which is natural considering the lower intelligence of a toddler compared to an adult.
The concept of
obvious dangers
often used in the 1984 Act is now being used in 1957 Act cases, suggesting occupiers do not need to protect against this for lawful visitors; a usage of
'common sense'
.
General Points
The issues of
cost, delay, the need to use lawyers and confrontation
are all problems here, as OL falls into negligence.
Defences
remain the same
between the two acts: consent, contributory negligence and warning notices.
Ideas for reform:
No fault liability
-
unpopular
as it would be essentially a tax on occupiers
State-run compensation
scheme paid for by a levy or tax
Current reform seems to be the
introduction of personal responsibility
(obvious dangers) into both Acts.
1984 Act
Prior to the Acts formation, no duty of care was offered to trespassers other than that of
common humanity
(
British Rail Board v Herrington
).
The Act provides compensation
only for personal injury
. This reflects the view that trespassers are deserving of
less protection
than lawful visitors.
The test for a duty of care under this Act is
subjective
- this goes against the vast majority of torts, including negligence and the 1957 Act. This means that each claim depends on its own facts (
Donoghue v Folkestone Properties
), which is unusual in tort.
If an occupier has
no knowledge
of a danger, he will not owe a duty. There is
no obligation
for occupiers to look for dangers on their premises.
The public view that trespassers do not deserve to profit from their actions has seemingly been taken up by judges too - more are finding reasons
not to allow claims
under the 1984 Act -
public opinion sinking into judicial impartiality?