Evaluation of Occupiers Liability

• 1957 vs. 1984 Occupiers Liability Acts


  • Advantage
  • Disadvantage
• 1957 Act


  Allows claims for personal injury and damage suffered on someone's property
• 1984 Act


  Allows for limited claims of personal injury only
• Lord Hoffman: 'Parliament recognised that it would be unduly burdensome to require landowners to protect the safety of people who came upon their land without invitations or permission.'
• Test to impose duty on occupier

  • 1957 Act uses objective test
  • 1984 Act uses subjective test
• The use of a subjective test in the 1984 Act is inconsistent with most other torts and means that the decision in a 1984 claim depends on the facts of each case, it is not consistent
• 1984 Act claims


  • Donoghue v Folkstone Properties (2003) - Occupier had no knowledge of trespasser, so not liable as accident happened at night in winter
  • Outcome may have been different if accident happened during day or summer
• Except for child visitors, the 1957 Act does not require the court to consider whether the premises are safe for the person who is injured
• Under the 1984 Act the occupier is required to, within reason, offer the injured trespasser some protection
• Whether occupier acted reasonably

  May depend on the injured trespasser - what is reasonable for that particular person?
• 1984 Act


  Gives trespassers the right to make a claim, however judges have found a way to restrict this in line with public opinion and the idea that someone who should not be on the premises can benefit from their actions
• Obvious dangers


  No duty is owed to a trespasser if they are injured due to an obvious danger
• Obvious danger cases


  • Ratcliff v McConnell (1999) - Adult should have appreciated obvious risk of danger
  • Revill v Newbery (1996) - 82-year-old Newbery injured trespasser Revill
• Compensation culture


  It is fair that a visitor should receive compensation if injured on premises, but this has developed into claims being made at every opportunity
• More recently, the courts seem to be trying to prevent the compensation culture by sending a message that visitors have to take personal responsibility for their safety and sometimes accidents do happen
• Cases reinforcing personal responsibility

  • Laverton v Kiapasha Takeaway Supreme (2002)
  • The Deana and Chapter of Rochester Cathedral v Debell (2016)
• Balance between occupier and visitor responsibility

  • It is generally fair that an occupier is responsible for the reasonable safety of their lawful visitors, but this does not mean making premises completely safe
  • This strikes a fair balance between the rights of an occupier and the personal responsibility of lawful visitors for their own safety, especially in public areas/open spaces
• This balance is not achieved under the 1984 Act, as public support for trespasser claims is low and judges will not allow claims where there was an obvious risk
• This creates an imbalance between the interests of the occupier and the trespasser and does not achieve the aim of compensating someone injured by someone's actions