ola assesment also Flashcards
(11 cards)
Definition of Occupier (Control-Based Test)
It’s fair that responsibility is based on who is in control, not just owners or tenants—e.g., a building company on a redevelopment site. This ensures accountability for those creating potential dangers.
Occupier’s Knowledge of Trespassers
The test (subjective and objective) considers whether the occupier did or should have known about the trespassers. This is fair as it encourages occupiers to take extra precautions when they know people are likely to enter without permission.
Occupier’s Knowledge of Danger
Using a combined subjective/objective test, it’s fair not to hold occupiers liable for unknown dangers. Courts can take all relevant factors into account to reach a balanced decision.
Nature of the Danger
It is fair that occupiers should only be liable for dangers that actually pose a risk—expecting protection against all conditions would go too far, especially if a risk is not substantial.
Case Example – Donoghue v Folkestone Properties
Demonstrates fairness—no duty to a trespasser diving into a harbour at midnight in midwinter, as the risk wasn’t foreseeable in those circumstances.
Reasonable Steps to Avoid Harm – Tomlinson v Congleton BC
The court fairly held that warning signs about the lake were enough. Trespassers shouldn’t expect the same duty as lawful visitors. The ruling allowed courts to apply a lower standard based on the person’s legal status and context.
Business Protection – Insurance
Businesses can use insurance to manage the cost of claims, which helps mitigate the financial impact of potential liability under fair rules.
Narrow Definition of Premises (Statutory)
The legal definition is too restrictive and can unfairly limit liability unless courts stretch it to cover other settings like land or scaffolding.
Equal Duty of Care to Children
It’s arguably unfair that children are treated the same as adults in some trespasser situations, despite being less aware of risks and more vulnerable.
Overly Broad Definitions (Occupier and Trespasser)
The wide definitions could lead to occupiers being unfairly held liable in questionable cases—potentially making them responsible for too many unforeseeable situations.
Insurance Cost Increases (Due to Unfair Claims)
If unfair liability rules lead to an increase in claims, this can unfairly raise insurance costs for businesses—especially when the fault isn’t clearly the occupier’s.
