Occupiers liability evaluation

8 Mark ‘Factual’ Section

● Occupier is liable for damage caused to someone by the state of their premises.

● Occupiers Liability Act (OLA) 1957 (visitors) and the OLA 84 (trespassers)

● Common Elements:

○ D must be an occupier (Wheat v Lacon - sufficient control of the premises.

○ Premises is not strictly defined, but s1(3)(a) OLA 57 = land and buildings, as well

as fixed and moveable structures, vehicles, vessels and aircraft

○ Lawful visitors can be invitees, licencees, contractees, or those entering for a

statutory purpose. Anyone other than these people will be trespassing, as they do

not have permission to be on the premises.

● 2(1) OLA 57, = common duty of care to all lawful visitors.

● 1(3)OLA 84, D = only owes a duty to trespassers on 3 conditions:

○ (a) that they knew of the danger or had reason to believe it existed (Rhind v Astbury Water Park), (

○ (b) that they knew or had reason to believe the trespasser would be near the danger (Higgs v Foster),

○ (c) the danger was one D should offer protection against (ie the risk is not obvious like in Tomlinson v Congleton).

8 Mark ‘Factual’ Section (Cont’d)

● s2(2) OLA 57 = Duty to take reasonable care in the circumstances to make sure lawful visitors are reasonably safe for the purpose of their visit.

○ Laverton v Kiapasha shows this can consider any precautions D has taken

○ Dean v Debell clarifies that D does not need to guarantee C is safe, just keep them reasonably safe.

○ s2(3)(a) children are owed more protection (Glasgow Corp v Taylor)

○ s 2(3)(b) professionals are owed less care for risks part of their

profession (Roles v Nathan).

However, s1(4) OLA 84, D must take reasonable care in the circumstances to keep C safe, but there is no special protection to children (shown in Keown v Coventry NHS).

Point one issue

Confusion caused by objectives/subjective test

Point one cause

● Test for whether or not the occupier owes a duty to visitors is objective: if a lawful visitor is on the premises they are owed a duty.

● However, the test for trespassers is subjective: the occupier must know of the danger (or have a reasonable belief that the danger exists) and of the presence of trespassers

Point one example

Swain v Natui shows when no trespasser is suspected by the occupier there is no duty

Point one consequence

● 1957 Act: This ensures high level of protection for lawful visitors and makes liability certain

● Occupier only liable for trespassers in limited circumstances.

● 1984 Act: Fair: it is generally held view that trespassers should get less protection than lawful visitors and this was the aim of the legislation

Point one counterpoint

1984 Act: Subjective test for trespassers inconsistent with other torts such as negligence which are largely objective

1984 Act: Each trespasser case will have to be decided on its own facts, creating potential uncertainty.

1957 Act: This imposes a very high liability on occupiers - to look after all visitors to a standard of care which is objectively owed.

Point two issue

Differing protection for children

Point 2 cause

● The OLA 57 offers extra protection to children if they are lawful visitors

● OLA 84 offers no extra protection to child trespassers

Point two example

Glasgow Corp v Taylor and/or Keown v Coventry NHS

Point two consequence

● 1957 Act: Good thing as children are more likely to be harmed as they are ‘less careful’ so fair that D should make his premises safer if he knows children are going to be on land - this makes law certain

● 1984 Act: it would be unfair on occupiers to make land safe for unexpected child visitors (trespassers) so this is a sensible provision

Point two counterpoint

● 1957 Act: Judicial interpretation of when a child is responsible and when the parents might be responsible is confused. Age 7 = occupier is liable, age 5 parent is responsible. What about a 6 year old?

● 1984 Act: Children are the most likely people to trespass (due to allurements/not understanding private property etc) and Children are less likely to recognise obvious dangers so are more likely to be injured but less likely to be protected.

● 1984 Act: Unfair on children who could be seriously hurt with life-changing injuries, with no chance of compensation

Point three issue

Direction of judicial decisions appears to be increasing personal responsibility (Applies to both Acts)

Point three cause

● Trespassers have always had to take responsibility for their own injuries if caused by an obvious danger

● Recent decisions have seen judges ruling that potential claimants who are lawful visitors should take more responsibility for themselves rather than suing occupiers.

Point three example

● Trespassers have always had to take responsibility for their own injuries if caused by an obvious danger

● Recent decisions have seen judges ruling that potential claimants who are lawful visitors should take more responsibility for themselves rather than suing occupiers.

Point three consequence

● Good thing as it encourages people to take care of themselves/take responsibility for their actions.

● Limits number of claimants (floodgates argument)

● Occupiers’ do not have to guarantee safety - this would be expensive and impractical

● Counterpoint

● The more responsibility put on claimants, occupiers may feel they can reduce the level

of care they take.

● Goes beyond what Parliament intended by the Acts which was to make occupiers look

after people

Point four issue

Vagueness of terms (applies to both Acts)

Point four cause

1957 and 1984 Act: No statutory definition of occupier or premises leading to judicial interpretation being essential. This vagueness is surprising because Parliament envisaged both Acts as trying to clarify the law when in fact they have made it less clear in some areas.

Point four example

Wheat v Lacon was required for a definition of occupier, S1(3)(a) of the 57 Act does

not give a solid definition of premises, only a non-exhaustive list of very broad terms.

Point four consequence

Allows judges to be flexible and allows law to change and update rather than being time locked.

Point four counterpoint

● Creates uncertainty in the law.

● Judges may interpret occupier/premises in a way Parliament did not intend