Scenario: Amari (12) is injured by a “zip line” he built in a barn full of broken machinery on a farm.
Question: Outline the legal arguments for finding the occupier LIABLE for Amari’s broken leg under the OLA 1957.
Higher Duty of Care: Under s.2(3)(a), an occupier must be prepared for children to be less careful than adults. Amari is 12, so he is owed this higher duty.
Allurement: A barn full of broken machinery is an “allurement” to a child (Glasgow Corporation v Taylor). This helps establish that the child’s presence and actions were foreseeable.
Foreseeability of Harm: Following Jolley v Sutton LBC, the occupier is liable if the broad type of injury (e.g., injury from playing with machinery) is foreseeable.
Specifics Don’t Matter: It does not matter if the exact way the injury happened (the zip line) was foreseeable, as long as some harm from the machinery was.
Conclusion: Boswin Farm is likely liable, as they failed to secure a foreseeable allurement from a child visitor.
What is the legal/philosophical justification for the “Thin Skull” rule in tort law, and how does it relate to “fairness”?
The Principle: The rule is an expression of the idea that “the loss should fall on the person who created the risk, rather than the innocent victim.”
Application: This holds true even if the victim is unusually vulnerable or has a pre-existing condition (e.g., Smith v Leech Brain).
The “A” Insight:* It prioritizes social justice and claimant protection over the defendant’s lack of foreseeability, ensuring that a vulnerable person is not left uncompensated simply because of their “special characteristics.”
How does The Wagon Mound (No. 1) represent a shift in “fairness” for the defendant in the remoteness rule?
The Shift: It moved the law away from the “direct consequence” test (Re Polemis) to the “reasonable foreseeability of kind” test.
The “A” Insight:* This is a policy decision by the courts to ensure fairness for the defendant. It prevents “crushing liability” by ensuring a defendant is not held responsible for every freak consequence of a small mistake—only the types of harm that a reasonable person could have anticipated.
AO3 Link: Argue that while this is “fair” to the defendant, it can be “unfair” to a claimant who is left with no compensation for a very real loss simply because the specific type of damage was unusual.
