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occupier's liability evaluation 2 - Coggle Diagram
occupier's liability evaluation 2
the duty imposed on occupiers has been imposed by statute, whereas in negligence, it is a common law duty - statutes imposing duties on occupiers were introduced at different times - OLA 57 deals with liability to lawful and OLA 84 deals with liability to trespassers
one hand - fair that a visitor should receive compensation if injured whilst on premises when occupier is at fault by not making premises safe - however - over time, this has developed into 'compensation culture' when claims are made at every opportunity, especially by lawful visitors - courts seem to be sending the message that, despite the development of compensation culture, visitors have to take personal responsibility fore their safety and sometimes accidents do happen for which there is no remedy
Laverton v Kiapasha Takeaway Supreme - later reinforced in The Dean and Chapter of Rochester Cathedral v Debell
OLA 84 gives trespassers the right to make claims, but judges have found reasons to not allow this - this reflects public opinion which does not agree that a person who should not be on premises can profit from their actions
judges have introduced the concept of 'obvious dangers' into claims by trespassers - no duty is owed by an occupier when the trespasser is injured due to an obvious danger - Ratcliffe v McConnell - claimant (adult) not owed a duty to the obvious danger in the swimming pool - should have appreciated an obvious risk - even though he was severely injured, he was unable to claim compensation
Revill v Newbery - 82-year-old injured a trespasser who burgled his allotment shed - public outcry when trespasser granted legal aid to claim for personal injuries - at the time of making the claim, trespasser was serving a prison sentence for burglary - his claim for civil damages was based on OLA 84 and trespass to the person - awarded damages in civil court but amount was reduced by 2/3 for contributory negligence - damages payable by occupier were covered by public donations and the judge received a considerable amount of hate mail for finding occupier liable
for claims under both Acts, it is "necessary to identify the particular danger before one can see to what (if anything) the occupier's duty is" - OLA 84 requires the occupier to have actual knowledge of the danger then they will not owe a duty - Rhind v Astby where the occupier had no knowledge of a submerged container on which the claimant trespasser was injured, and was not liable - under OLA 84, there is no obligation on the occupier to check for any danger on the premises
OLA 57 allows for claims for personal injury and any damage to property suffered on another's property, whereas the OLA 84 allows more limited claims by trespassers to personal injury only
Lord Hoffman said in Tomlinson v Congleton - "Parliament recognised that it would be unduly burdensome to require landowners to take steps to protect the safety of people who came upon their land without invitation or permission. They should not ordinarily be able to force duties upon unwilling hosts"
the two acts set out two different approaches to the imposition of a duty
OLA 57 requires an occupier to do everything that is reasonably safe - an objective test - this follows the standard approach to tort claims, where a defendant's acts or omissions are judged objectively
however, for a duty under OLA 84, the occupier has to be aware of the danger and has to know or have reasonable grounds to believe that the trespasser is in the vicinity of the danger - this is a subjective test so that if the occupier does not have the required knowledge of the existence of fanger or the trespasser, they will not owe a duty - this subjective test is inconsistent with most other torts
each claim under OLA 84 will depend on individual facts - Donoghue v Folkestone Properties the occupier had no knowledge of the presence of the claimant trespasser and so owed no duty of care - accident occurred in winter at night - a different result might have been achieved if the accident occurred in the day or in summer - it seems unusual that liability should depend on when the accident happened
Lord Phillips in Donoghue v Folkestone Properties under OLA 84 - "there are, however, circumstances in which it may be foreseeable that a trespasser will appreciate that a dangerous feature of premises poses risk of injury, but will nevertheless deliberately court the danger and risk the injury. It seems to me that, at least where the individual is an adult, it will be rare that those circumstances will be such that the occupier can reasonably be expected to offer some protection to the trespasser against the risk"
the concept of obvious dangers has also recently been introduced into claims under the OLA 57 - Edwards v Sutton - the claimant was badly injured when he fell of a bridge over a stream in a public park - McCombe LJ said - "bridge was clear and unobstructed. width and height of parapets were obvious - any user of bridge would appreciate the need to take care - it is not necessary to give warnings to obvious dangers - an occupier is not an insurer against injuries sustained on his premises and do not have a duty to protect, or even warn obvious dangers"
whatever the legal arguments for or against a claim, if the lawful visitor or trespasser is severely injured and is unsuccessful in claiming, the burden of caring for them for the rest of their life is likely to be passed to the state
except for child visitors, the OLA 57 does not require the court to consider whether the premises are safe for the visitor who is injured - however, the OLA 84, a duty is owed if the occupier may reasonably be expected to offer the injured trespasser some protection - whether the occupier is judged to have acted reasonably may depend on the injured trespasser - what is reasonable for that particular person?
however, it seems to be different in the case of claims by trespassers - public opinion supports the view that an occupier should not deliberately injure claims by trespassers who should not be on another's land without permission - this approach is achieved by judges ruling that, although statute allows claims, a trespasser cannot claim when injured by an obvious danger - the trespasser has to accept full personal responsibility for their actions as they should not be on land that does not belong to them
on the other hand, the aim of the tort to compensate a person injured by the action of another had not been met - there does then seem to be an imbalance between the interests of the occupier and the trespasser
if these claims had been decided in favour of the claimants, other similar claims would follow, and the cost of liability insurance cover would rise for everyone - it is fair that an occupier is responsible for the reasonable safety of their lawful visitors - does not mean that making premises completely safe but reasonably safe and judges will support this approach
strikes a fair balance between the rights and duties of occupiers to maintain safety of their property and lawful visitors' personal responsibility for their safety, particularly in public areas or open spaces - if a lawful visitor is injured and can claim compensation, the aim of compensating a person injured by the tort of another is achieved - often this will be via public liability insurance cover