Tresspasser - Occupiers Liability Act 1984

Question 1

Describe

Trespasser: OLA

S.1(1), S.1(3)(a-c), S.1(4)

Apart of OLA84

Answer 1

S.1(1) - Occupier  owes a duty of care to people other than lawful visitors for injury on the premises by reason of any danger due to the state of the premise.

S.1(3) - Occupier owes a duty of care if,
A) He is aware of the danger or has reasonable grounds to believe danger exists.
B) He knows or has reasonable grounds to believe others are in the vicinity of danger or may come in vicinity of danger.
C) The risk is one that in all case circumstances, he may be expected to offer some protection.

S.1(4) - Occupier is to take reasonable care in the circumstances of the case, to see that the trespasser isn’t injured by reason of that danger.

Question 2

Describe

Other factors

Tomlinson v CongletonBC, Donoghue v Folkstone, Rhine v Astbury Waterpark

Apart of OL84

Answer 2

• Courts consider degree of danger and age of trespasser, though children are treated the same as adults.

Tomlinson v Congleton BC -
1) Occupier is not liable where trespasser has taken an obvious risk which resulted in injury.
2) Occupier is not expected to spend a lot of money to prevent trespasser being injured by an obvious danger.

Donoghue v Folkstone- Occupier not liable for injuries that occurred at certain times of day or year.

Rhind v Astbury Waterpark - Occupier will not be liable, if they are not aware of the danger or had no reason to think it existed.

Question 3

Describe

Defences and remedy.

S.1(5), S.1(6)

Apart of OL84

Answer 3

**Warning Signs **

S.1(5) - A warning sign can be a full defence however it must be enough to keep the trespasses safe.

The trespasser must be able to see and understand the sign for it to be effective. A sign is not needed for obvious danger and it is a full defence.

Contributory Negligence

Compensatory damage can be reduced to reflect the level of C’s contribution.

Volenti

S.1(6) - Adult trespasses will accept any risk they knew about when entering the land.

Full defence

Remedy
If C is successful, can only claim for personal injury.

Question 4

Apply to an exam question.

Flip

Apart of OL84

Answer 4

Who is the trespasser and why?

Is the D aware of any danger or has reasonable grounds to believe it exists? Have they guarded against it if so?

Do they have reasonable grounds to believe someone would be in the vicinity of the danger?

Is the risk something that should be guarded against?

Other rules

If protecting the trespasser against the danger costs a lot of money and time the D is not expected to do it.

Did harm occur at a certain time of year? The occupier is not expected to guard against this.

What’s the occupy and not aware of the danger? If so, not expected to protect trespasses against it.

Defences

Do any defences apply?

Did the trespasser consent to the risk?

Did the trespasser contribute to their injury? To what extent have they contributed?

Did the occupier put up a warning sign?

Remedy

What is C claiming for? Is it allowed?

Conclusion

Question 5

Evaluate

Provide justice

• Provide justice for trespassers.
• What does occupier still owe? Why is this fair? What is a common principle?
• Why is this fair on occupier? What shouldn’t have C done?

Apart of OL84

Answer 5

• The occupier still owes a duty of care, if section 1(3) is satisfied. This is fair as it’s a common humanity principle, if there is an unnecessary risk on the land, it is your principle to fix it for everyone
• It is hard to establish liability under S1(3), C shouldn’t have been there in the first place, so it makes sense for this to be a limited duty.

Question 6

Evaluate

Lack of Statutory Definitions

• Despite an act, there is a lack of definitions
• Is there a definition for occupier? What does it lead to? What does this make the law and not uphold?
• Is there definition for premise? What is it widely interpreted as? Why is this bad?

Apart of OL84

Answer 6

• There is no set definition of occupier. This leads to wide interpretation of the meaning of occupier, and this will be confusing and complex for lay people and not follow the role of law.
• There is a definition of premise, however it is widely interpreted to include ladders or lifts, this is confusing and it extends liability and it’s illogical to interpret a premise in that way, which ends up being unfair for the D.

Question 7

Evaluate

Easy to Avoid Liability

• Liability can be easily avoided.
• What does a warning sign do to liability ? Why is this warning sign fair for the occupier, what does it show?
• Why should it be easy to avoid liability? C shouldn’t be able to claim because?

Apart of OL84

Answer 7

• Using a warning sign avoids liability for the occupier. This is fair, as it shows the occupier has taken precautions and warned against the risk.
• It should be easy to avoid liability, as the occupier should not be liable for this, because it was the C who was trespassing on their property so the C shouldn’t be allowed to claim as they shouldn’t have been there in the first place.

Question 8

Evaluate

Unfair Rules

• The Act places unfair burden on occupiers.
• What are occupiers expected to do? What can this cost? Do they have to do it? Why is this absurd and unfair?
• What shouldn’t the occupier be liable for? Why is this not really a burden? Does law have correct approach and what is this approach?

Apart of OL84

Answer 8

• The occupier is expected to provide protection for trespassers, however this can cost a lot of money, warning signs and fences have to be added, even if they aren’t able to afford it. This is absurd and unfair as a trespasser shouldn’t have been on the land in the first place.
• The occupier should not be liable for any intentional trespassers. However, this isn’t a burden, this is because most claims fail and the law has a correct approach for this. It’s a duty but it’s not really enforced.