Defences

• What is the test used to determine if a warning sign can be used as a defence to avoid liability?

  S2(4)(a) OLA 1957:

  • warning signs will not absolve liability unless in all the circumstances it was enough for a visitor to be reasonably safe
  • this will be a question of fact in the case.
  • e.g. if this is the only means of access a warning wouldn't prevent liability if there other means of access it might
• When are warning signs not necessary?

  Where the danger is obvious a warning sign isn't necessary as seen in Staples v West Dorset DC
• How can occupiers exclude themselves from liability?

  S2(1) Occupiers can exclude themselves from liability by agreement:

  • The validity of this agreement depends on what's being excluded and from where
• When are exclusion clauses likely to fail?

  There're numerous scenarios:

  • Exclusion clauses with children
  • Exclusion clauses with strangers, had no chance to agree to the exclusion
  • People with a legal right of entry
  • Minimum standard of care as prescribed by OLA 1984 cannot be waived
• When does an occupier not owe a visitor a duty of care?

  S2(1):

  • Occupiers have no liability to a visitor for risks willingly accepted by a visitor.
  • Mere knowledge is insufficient, must be sufficient to keep the visitor safe as seen in White v Blackmore
  • Must be fully aware of the risks and consequences of taking that risk.
  • choice to enter area with risk must be made freely, as seen in Burnett v British waterway
  • risk must be voluntarily and freely accepted - as seen in Simms v Leigh RFC