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Evaluation of Occupiers' Liability (For public reasons, the courts…
Evaluation of Occupiers' Liability
The law relating to occupiers' liability is based on the law of negligence.
Occupiers' Liability is restricted to the state of the premises but this does not exclude other claims in negligence.
The law has given a wide interpretation to the terms 'occupier' and 'premises' which favours the claimant, however other parts of the law restricts their ability to claim.
One suggestion for reform could be that all occupiers have compulsory insurance to cover any injuries incurred by visitors and trespassers.
This could form part of house insurance.
Others have suggested no-fault liability where all claimants receive compensation. This would reduce litigation costs but again increase the number of claims being made.
The legislation acts as a deterrent as it is difficult for trespassers to claim under the 1984 Act.
Limited damages awarded to trespassers as only lawful visitors can claim for damage to property as well as personal injury.
The occupier has to have actual knowledge of the danger in the 1984 Act and is not required to check for danger.
For public reasons, the courts favour the claims made by lawful visitors under the 1957 Act.
Accidents happen and if all claims were successful, the courts would be flooded with even more claimants seeking compensation.
Some cases have not allowed the claimant to receive compensation as it was thought it would open the 'floodgates' to more claims.
An example of this is Dean and Chapter of Rochester Cathedral v Debell (2016).
'Obvious dangers' applies to both Acts.
A trespasser badly injured in Ratcliff v McConnell (1999) could not claim compensation nor could a lawful visitor in Edwards v Sutton LBC (2016), because the danger was obvious in both cases.
Both Acts allow the occupier to try and reduce or exclude liability e.g. warning signs etc but these defences do not apply to very young children.
There is a 'special duty' towards children s2(3) of the 1957 Act therefore, protecting the vulnerable.
However, this higher level of care may be seen as unfair on the occupier. Is it fair to expect the occupier to second guess the unpredictable nature of children?
There is an unclear legal distinction between 'little children' and 'bigger children'.
The decision in Jolley gave a broad interpretation of foreseeability of risk and has developed the law to offer greater protection for children. Parental supervision was expected in Phipps but this expectation has reduced in more recent cases.
The 1957 Act uses and objective test to prove a duty in that the occupier does everything that is reasonable to make visitor safe.
The 1984 Act requires the occupier to be aware of the danger and know/foresee that there could be a trespasser in the vicinity of the danger.
Rare to have a subjective test in tort, but it doe reduce liability for trespassers.