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occupier's liability evaluation - Coggle Diagram
occupier's liability evaluation
OCCUPIER
Westwood v Post Office - only need a warning sign saying ‘do not enter’
owe 'REASONABLE' care - make sure the visitor is 'REASONABLY SAFE' only for the purposes
word "REASONABLE" is quite BROAD - could be 'subjective' (to a judge) when it is an objective test
will never know the EXTENT of 'REASONABLE CARE' - is it more than the ‘reasonable care’ you are required to provide anyway in negligence, whether you’re an occupier or not?
Cole v Davis Gilbert (shit happens case) - only have to take ‘reasonable care’ an accidents can happen
Staples v West Dorset - risk is too obvious
Tomlinson v Congleton - only need to keep safe in the state of the premises - cant stop someone from being stupid
no exact definition of an ‘occupier’ - could be possible for there to be more than one person - this allows the claimant a greater chance of a successful claim - Wheat v Lacon
CHILDREN
some risks only apply to children - Moloney v Lambeth
BUT - Phipps v Rochester - Occupiers can assume that young children are expected to be with an adult
s2(3)(a) Occupiers need to be prepared for children to be less careful than adults
it could be argued that this rule has been overruled by the OLA 1957
s2(2) everything that applies for visitors applies for children as well
only injury needs to be foreseeable, not the exact type/manner - Jolley v Sutton
the occupier can assume that the small children will be accompanied by a responsible adult
children are drawn by allurements - Glasgow v Taylor
the responsible adult will most likely prevent the children from all the risks such as the allurements, the unforeseeable injuries and risks that only apply to children, warning signs are also sufficient for an adult can understand instead of children
can also assume that big children are more careful than younger children
TRESPASSERS
OLA57 does not cover trespassers so had to made OLA84
Herrington v British Railways Board (1972) - common duty of humanity owed
knew of the hole
knew children were using it
would have been really easy to fix
didn’t do anything about this problem
s1(3) reasonable care PROVIDED THAT:
the occupier knows of the danger or has reasonable grounds to believe the danger exists;
the occupier knows or has reasonable grounds to believe the trespasser will come into the vicinity of the danger;
it is a danger against which the occupier may reasonably be expected to provide some protection.
Plus, very few cases since then when the trespasser wins anyway (Occupiers do not know of the risk majority of the time)
All of this applies to the case of BRB v Herrington -> does NOT solve problem as BRB v Herrington already had
INDEPENDENT CONTRACTORS
Should have insurance so if they do, they will not be liable anyway as their insurance company will pay instead anyway
PEOPLE EXERCISING CALLING
Not unreasonable for that person to know the risks that apply to their profession / job, even if they are a trainee - held to the same standard of care as an experienced worker
VISITOR
BUT - the risk of bad PR/reputation already does that
lots more warnings - safer premises
omissions are harder to sue against in negligence than an act - better for visitors to sue in OLA for omissions
s1(1) states that a common duty of care to all lawful visitors who suffer damage on the premises - this provides greater justice for all types of visitors