Evaluation: Duty of care under 1957 Act for lawful visitors. Why is it fair for the occupier to owe a greater duty?
Automatically imposes a common duty of care. Fairer to lawful visitors as they have permission to be on premises. Right that extra care is taken for vulnerable visitors (e.g., blind person).
valuation: Limits to Occupier’s duty for lawful visitors. (Fairness/Policy?)
- Occupier only expected to do what is reasonable (assessed objectively). Unfair to hold liable if reasonable steps taken but injury still occurs (e.g., Laverton v Kiapasha Takeaway (2002)).
- Judges recognise not every accident is fault of another; “pure accidents” happen. Risk only foreseeable if “real source of danger” (Rochester Cathedral v Debell (2012)).
- Policy: Prevents a “compensation culture,” controls insurance costs.
Overall balance of 1957 Act protection?
The protection offered is evenly balanced between the occupier and visitor.
Evaluation: Special protection for child lawful visitors. Why is the standard of care raised?
s.2(3)(a) OLA 1957 raises standard of care. Occupiers must be prepared for children to take less care. Must guard against “allurement” (attraction causing risk) (e.g., Glasgow Corporation v Taylor (1922), Jolley v Sutton (2000)).
Evaluation: Balance between occupier’s duty and parental responsibility for children. (Fairness/Uncertainty?)
- Balance: A balance must be struck. No duty to warn of dangers obvious to a parent/guardian unless unaccompanied children are expected (e.g., Phipps v Rochester (1955)).
- Fairness to Occupier: Reasonable to expect parents to supervise young children.
- Uncertainty: Some uncertainty about the age limit to which this applies.
- Policy: Court accepts accidents happen to young children without fault (Bourne Leisure v Marsden (2009)).
Key point regarding children’s vulnerability vs. shared responsibility?
Fair to impose higher standard on occupiers because children are especially vulnerable. However, it is right that responsibility should be shared with parents.
Evaluation: Skilled visitors/professionals. How is occupier’s liability affected
s.2(3)(b) OLA 1957 relieves occupier’s liability. Law expects skilled visitors to understand and guard against special risks related to their trade (e.g., Roles v Nathan (1963)).
Evaluation: Limits to skilled visitor’s responsibility. What duty remains for the occupier?
s.2(3)(b) only covers risks relevant to their trade. Common duty of care under s.2(1) applies to other dangers.
Key point regarding professional visitors’ protection and personal responsibility?
Professional visitors enjoy some protection, but still have a degree of personal responsibility in respect of special risks that are part of their job.
Evaluation: Shifting liability to independent contractors (s.2(4)(b) OLA 1957). Why is this fair?
Defence for occupier if lawful visitors injured due to contractor’s danger. Just that responsibility lies with negligent contractor, as reasonable for occupier to rely on specialist skills (Haseldine v Daw (1941)).
Evaluation: When is the occupier still liable for contractor’s work?
- Occupier still responsible if they failed to take reasonable care to ensure contractor was competent, or failed to check work was done properly (e.g., Bottomley v Todmorden Cricket Club (2003) - club liable for incompetent/uninsured fireworks team; Woodward v Mayor of Hastings (1945) - occupier should check simple work like clearing snow).
Key point: If occupier not at fault, who should visitor claim against?
If the occupier is not technically at fault, the visitor should be able to claim against the contractor instead.
valuation: Why was the 1984 Act needed for trespassers? (History/Old Law
Until British Railways Board v Herrington (1972), no common law duty to trespassers (except not to deliberately/recklessly inflict injury), harsh for child trespassers. Herrington introduced “common humanity” duty (occupier knew of danger & likelihood of trespass), but scope unclear.
Evaluation: Effectiveness/Limitations of the 1984 Act for trespassers.
- Clarity: Clearer than old common law.
- Limitations: Duty is limited, not automatic (s.1(3) conditions must be met). Only for personal injury, not property damage (trespassers less deserving).
- Judicial Approach: Judges reluctant to impose heavy duty, often finding no duty owed, duty discharged, or self-inflicted injury.
Evaluation: Fairness of the 1984 Act’s lesser duty to trespassers. (Fairness/Policy?)
- Fairness to Occupier: Right that there is lesser duty; too great a burden if forced to protect uninvited people.
- Policy: Duty shouldn’t arise if occupier unaware of danger (Rhind v Astbury (2004)). Fair to consider occupier’s financial circumstances when deciding on reasonable steps (Tomlinson (2003)).
Evaluation: Criticism of 1984 Act re: child trespassers. (Comparison to 1957 Act/old law?)
-1984 OLA criticized for not imposing higher standard for children, unlike 1957 Act. Old “allurement” doctrine treated child trespassers as visitors (Glasgow Corporation v Taylor (1922)).
Evaluation: Allowances for child trespassers under s.1(4) OLA 1984.
udges likely to make allowances. Must consider what was reasonable “in all the circumstances,” including premises nature and age of trespasser. A place safe for adults might be dangerous for child (Keown v Coventry (2004)). For instance, Young v Kent CC (2005): 12-year-old on roof, duty arose because known meeting place, danger known, low cost to fix. Damages reduced for contributory negligence.
Key point regarding age of child trespasser and level of protection?
It is reasonable to take into account the age of a child trespasser when deciding what level of protection is required.
Evaluation: “Danger must arise due to state of premises.” What’s the key point / implication?
- Claims will fail if injury due to Claimant’s own dangerous behaviour (e.g., Geary v Wetherspoons (2011), Keown v Coventry NHS Trust (2006)).
- No duty to warn against “obvious dangers” (e.g., Ratcliff v McConnell (1999), Edwards v Sutton (2016)).
Evaluation: Fairness & Policy behind “danger must arise from premises” / “obvious dangers” rules?
- Fairness to Occupier: Limits possible claims, seems fair to the occupier.
Personal Responsibility: Encourages personal responsibility on behalf of the Claimant. - Policy: Prevents claims for self-inflicted injuries.
- Alternative: Note that alternative action in negligence might be available if danger not from premises (e.g., Ogwo v Taylor (1987)).
Evaluation: Warnings as a defence for occupiers (lawful visitors
Warning can be complete defence if it enables visitor to be reasonably safe (Rae v Marrs (1990) - warning insufficient if not seen). Occupier not obliged to warn against obvious risks (Edwards v Sutton (2016)).
Evaluation: Warnings for unlawful visitors (trespassers).
For unlawful visitors, enough to take reasonable steps to warn; no need for warning to make trespasser “reasonably safe.”
Evaluation: Challenges with warnings and young children.
: Almost anything can be dangerous to young children, and they rarely understand written notices. Warnings unlikely to prevent incidents for very young children (Bourne Leisure v Marsden (2009)).
Balance of protection related to warnings?
Protection is therefore balanced evenly between the occupier and the visitor.
