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Occupiers Liability 1957, Occupier Liability 1984, No clear guidance on…
Occupiers Liability 1957
OLA 1957 - Creates a common duty of care to all lawful visitors, Prior to Act different duties were owed to different types of lawful visitors [FAIR AND CONSISTENT]
Broad Definition
Broad definition of key concepts such as occupier, lawful visitor and premises
Ensures scope of the law provides the widest possible protection to lawful visitors and allows for a potentially just outcome to be achieved
Wheat v Lacon court laid down a control test to determine whether a person was classified as an occupier. This test ensures that the law extends beyond owners of property and recognises the reality that in many situations those running businesses or living on the property are not owners of the premises
However, the non specification of the law could cause uncertainty as occupiers ma be unaware of the extent of their potential liability.
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However, the fact that premises covers moveable structures as well as vehicles, vessels and aircrafts ensures people are protected and can obtain compensation in a broad range of situations
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Occupiers only required to do what is reasonable
This is judges objectively and ensures that occupiers are judged by the standards of other occupiers and ensures a degree of consistency in how the law operates
Furthermore, the requirement of reasonableness helps ensure that the law reflects a fair balance between the need to protect the safety of lawful visitors and the interests of the occupier by having a duty which does not impose a disproportionate burden.
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Laverton v Kiapasha Takeaway - where the occupier had taken reasonable precautions to protect customers in heavy rain by providing matt
The strength of reasonableness requirement can also be seen in the rule that there is no duty to protect or warn of obvious risks (Cotton v Derbyshire Dales; Staples v West Dorset)
Extent of the duty owed to children
The law recognises that children are more vulnerable that adults and deserve a greater degree of protection s2.3a
Appropriate for an occupier to have an additional responsibility towards children as they are in a position to protect them from danger
Glasgow v Taylor - the council failed to protect children from poisonous berries. It would have been easy to do so, at a little cost and would not have imposed an unreasonable burden on the council
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Jolley v Sutton - courts recognised the doctrine of allurement in which a child trespasser can be treated as a lawful visitor if their presence on the premises is a consequences of the allurement
Law is balanced as recognises that very young children should be supervised by their parents and this protects occupiers from claims which would be unfair as many things are hazards to children
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Independent Contractors and Professional visitors
The rules governing contractors under s2(3)(b) and s2(4) help ensures that an occupier is only responsible for things under their control
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It would not be just for an occupier to be responsible for things they have no control over and things it would not be reasonable to expect them to be responsible for.
Roles v Nathan - Contractors were qualified and aware of the risks of carbon monoxide poisoning but chose to take those risks.
Contractors can be treated as an occupier in relation to the work they carry (liability transferred) out can also be seen as a strength.
Haseldine v Daws where the occupier was not liable for the death of a visitor while using a lift as the maintenance had been carried by a contractor, s2(4) protects occupiers from unjust claims but at the same time ensures that visitors can obtain compensation through contractor
However, where reasonable steps have not been taken to identify a competent contract and ensure the work has been carried out, the occupier will remain liable
Warnings
The rules governing warnings s4 can be seen to be a positive features of the law. The use of a warning can be sufficient to fulfil the duty owed by an occupier to a visitor provided it is sufficient to ensure the visitor is safe
The strength of this law is that the liability of an occupier is kept to sensible limits while at the same time ensuring that visitors are protected
Furthermore, the law does not require visitors to be warned about obvious risks (Cotton v Derbyshire Dales) as to do so would have damaging consequences and implication for matters such as access to land and recreation.
This reflects the principle of autonomy and individual responsibility - that it is just and fair to expect people to take reasonable care of themselves and be aware of obvious risks
Occupier Liability 1984
Broad Definition
Broad definition of key concepts such as occupier, lawful visitor and premises
Ensures scope of the law provides the widest possible protection to lawful visitors and allows for a potentially just outcome to be achieved
Wheat v Lacon court laid down a control test to determine whether a person was classified as an occupier. This test ensures that the law extends beyond owners of property and recognises the reality that in many situations those running businesses or living on the property are not owners of the premises
However, the non specification of the law could cause uncertainty as occupiers ma be unaware of the extent of their potential liability.
-
However, the fact that premises covers moveable structures as well as vehicles, vessels and aircrafts ensures people are protected and can obtain compensation in a broad range of situations
-
Lesser duty owed than under the 1957 Act
Historically occupiers did not owe a duty to trespasser; This evolved in the Herrington v British Railways where it was recognised that the law should recognise a duty of common humanity. Occupiers owe a lesser duty to trespasser than to lawful visitor (Donoghue v Folkestone). There is no automatic duty to trespassers and a duty will only be owed where the 3 pre-conditions are satisfied.
In addition, occupiers only owe a duty in relation to personal injury and not in relation to damage to property. This appears to be fair as trespasser are acting unlawfully and should not be rewarded for their behaviour by being treated as if they were lawful visitor.
Furthermore, the duty only extends to the danger on the premises and the focus is not on keeping the trespasser safe.. This contrasts with the 1957 Act where the duty owed by the occupier to the visitor is to ensure the lawful visitor is safe rather the premises.
This can be seen in Keown v Coventry the hospital was not liable for the injuries to the child trespasser as the premises were not dangerous; the injury was caused by the behaviour of the defendant
Reasonableness
Where a duty is owed, it is only to do what is reasonable to protect the trespasser from danger s.1(4)
The occupier does not have to protect or warn against obvious risks (Ratcliffe v McConnel) and only have to do what is reasonable in the circumstances to ensure that trespassers are protected from danger S1(4). Occupiers are therefore only liable when they are at fault. If occupiers are at fault then they must compensate the claimant. This will act to raise standards.
Platt v Liverpool - 8ft metal fence surrounding the derelict building was regarded as sufficient. The Council had taken steps to prevent trespass and deter people from entering. Even if the building amounted to an allurement, fence sufficient to protect persons by preventing entry. To impose a greater burden would be unfair on occupiers and result in additional costs
Warnings
Warning can prevent the occupier from being liable under the 1984 Act - section 1(5) provided the warning is reasonable to protects trespassers from danger. For example secured entrances; warning signs; fences
In Tomlinson v Congleton, the sign prohibiting swimming was sufficient to prevent the defendants from being liable. Once the claimant entered water trespassing and injury product of shallow dive not occupiers responsibility
This upholds and reflects the principle of free will
and individual autonomy and ensures the occupiers are not liable for matters beyond their control. In Tomlinson, to hold the Council (occupier) responsible would promote the compensation culture and shift responsibility away from the visitor/ trespasser to the occupier.
Volenti
The availability of both contributory negligence and volenti limits the potential liability of an occupier and helps ensure their liability is kept withing reasonable limits
The defence of volenti s1(6) protects an occupier from unjust claims where it would be unreasonable to hold them responsible - as they are not at fault. This can be seen in cases concerning injuries arising from swimming.
Ratcliffe v McConnell and Tomlinson v Congleton neither occupier was liable for the injuries which resulted as the trespasser had been aware of which resulted as the trespasser had been aware of the risks and voluntarily assumed those risks through their behaviour/ conduct
The drawback with volenti is that a claimant can be uncompensated despite having life changing injuries as in Ratcliffe v McConnel.
Could be argued that the law is unpredictable in terms of whether the contributory negligence or volenti will apply
In Ratcliffe, the claimant initially won his case but had damaged reduced for contributory negligence. On appeal the decision was overturned on the basis of volenti and Ratcliffe therefore failed to obtain ant compensation despite becoming paraplegic
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Reform
Introducing a "no fault" liability scheme - so injured visitors whoever they are can claim compensation. This could be funded through insurances or a government scheme.
However. this would not give occupiers the same incentive to improve their facilities and take incentive to improve their facilities and take precautions and might be regarded as unfair as occupiers who were careless would have the same liability as those who took reasonable precautions
The strength of the system is that all those injured would receive appropriate compensation without the need to bring a case
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