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Occupiers Liability Act 1984 - Coggle Diagram
Occupiers Liability Act 1984
Duty to Trespassers
- the first three steps under the 1984 Act are the same as those under the 1957 Act.
2. Is the claimant injured on the premises?
Under S1(2) OLA 1984, premises includes any 'fixed or movable structure'.
3. Is the claimant a lawful visitor?
A lawful visitor is; invitee, licensee, contractual or statutory authority.
If the claimant is not a lawful visitor i.e. a trespasser or someone exercising a right of way, they will need to claim under the OLA 1984, which deals with trespassers.
1. Is the defendant an occupier?
Wheat v E.Lacon
- there can be more than one occupier.
Bailey v Armes
- An occupier is someone with 'sufficient' control over the premises.
4. Duty of care
- the occupier will only owe a duty under S1(3) if
ALL
three of the following requirements are met:
S1(3b)
: The occupier has reasonable grounds to believe someone is or will be in the vicinity of the danger.
Case Example
: Higgs v Foster - Occupiers know about the danger but they could not have anticipated the police officers presence. Occupier not liable.
S1(3a)
: The occupier knows or has reasonable grounds to believe that the danger exists.
Case Example
: Rhind v Astbuny - Occupier not liable as he was not aware of the danger and had no reason to suspect the danger existed.
S1(3c)
: The danger is one against which the occupier can be reasonably expected to provide some protection.
Case Example
: Tomlinson v Congleton Borough Council (2003) - It was not an obvious danger and it was not reasonable for the council to spend so much money on it.
S1(4)
One a duty has been established under S1(3), under S1(4) an occupier will have to '' take such care as reasonable in all circumstances'' to prevent injury to the trespasser by the danger. This is a subjective test. The greater the risk from the danger, the greater the precautions the occupier will have to take.
Case Example
: Ratcliff - Occupier was not required to warn the adult trespasser of the risk of injury arising an obvious danger.
The occupier can expect a trespasser not to pursue foolhardy (reckless) activities.
Case Example
: Donoghue v Folkeston Properties - occupiers did not expect a trespasser might be present or jump into the harbour at that time of day or year. NOT liable.
Defences
Consent
- Under S1(6) OLA 1984 consent can be used as a defence if the trespasser appreciates the nature and degree of the risk. Consent is also known as Volenti.
Contributory Negligence
- This is when the claimant is partly at fault for his injuries. Under S1(1) of the Law Reform (Contributory Negligence) Act 1945 the judge can reduce damages in proportion to the claimant's fault for their losses.
Warning Notice
- If effective, a warning notice acts as a full defence. Under S1(5) OLA 1984 a warning notice can be effective to adult trespassers. For children it will depend on their age and understanding. The warning notice must be visible. Example: If there is a gap in a fence which leads to the occupier's premises, on which there are some steep steps, a warning notice at the bottom of the stairs will be ineffective.
Remedies
If successful, a trespasser will be entitled to compensation for personal injuries only. Damage to property is not covered - S1(8) OLA 1984
Evaluations
Favours Occupier
. Trespassers can only claim for personal injury not damage to property.
. The occupier has to know about the actual danger - not required to check.
. The occupier is judged by a subjective test - what they knew.
. Cannot claim for obvious dangers e.g. Ratcliff v McConnell.
. Can exclude liability through warning signs etc....
Favours Claimant
. The law gives the term 'occupier' and 'premises' a wide meaning.
. Waring signs don't apply to young children.