Occupiers Liability Act of 1984 - Case Study Example

work Assessment Introduction: The law regarding occupier’s liability differentiates a person who is a legal visitor from a trespasser. The Occupier’s Liability Act 1957 deals with lawful entrants or legal visitors, whereas the Occupier’s Liability Act 1984 deals with trespassers, or illegal transgressors. This case study is a mixed bag, containing both legal entrants and also illegal visitors (trespassers). However, as imposed by the Act passed in 1984, the law also imposes duties and performances by occupiers with respect to protection and other considerations being meted out to trespassers in human injury- prone premises. Occupier’s Liability Act 1984: Under normal circumstances, the law does not encourage trespassers on private property, and therefore, he is wholly responsible for his actions, along with the fact that he is quite aware of the risks and dangers lurking in the premises and that his actions may create compromises regarding his own health and safety. The very simple logic is that transgressors are well aware of the dangers their actions may raise, and therefore, they are themselves to blame for wrongful acts of intruding into another’s territory, or privacy. The laws relating to occupiers liability takes a wider and broader perspective of acts committed by children, since they are perceived to take lesser care than adults. Therefore, it is seen that the laws need to take greater consideration of the acts committed by children. In this case, it is seen that the young person Liam (14 years) was in the company of an elder person, Chris, (20 years) who needed to exercise better control over her own action and that of her associate, Liam. Occupiers owing a duty of care: Again, the facts relating to this case needs to be seen from the point of view of whether the owners, Cygnemer County Council (CCC) owe a duty of care to Liam, Chris and Noelle, and if so, to what extent. Duty of care in Liam’s case: It is evident from this case that Liam, a minor, had violated the laws relating to Occupier’s liability and is a trespasser, since he ignored the “No Trespassing” Board erected solely for the purpose of cautioning motor car enthusiasts from pursing their motocross sports. However, under the Occupier’s Liability Act 1984, the occupier has a duty of care, if he is aware of the latent risks in the premises, and knows fully well that the other person, faces a grave risk, and there is need for the occupier to provide protection against such danger from the said premises. It is also the duty of the occupier to offer protection whether the person is a trespasser or a legal visitor. In this case it is seen that the occupier, Cygnemer County Council (CCC) did not offer the protection that was needed. However, it is seen that the occupier had given warning by providing “No Trespassing “Board, although the dangers that fraught the premises was not disclosed. So the warning only had limited benefits in that it firstly failed to provide protection to the trespasser and also it could not circumvent the occurrence of an accident. The landmark case of Tomlinson (FC) v. Congleton Borough Council & Others (2003) UKHL 47 draws a parallel to the present one. In this case, the applicant dived into the beach at the Brereton Health Country Pass and struck his head into the shallow sandy bottom breaking his neck and rendering him a tetraplegic. He brought action against the Council stating that the Council owed him a duty of care under the 1984 Act, and the accident occurred due to lack of duty on their part, thus causing the accident. The House of Lords, to whom the case was finally referred, rejected his application on the ground that the accident occurred not due to the inherent dangers in the premises, but because of the applicant’s lack of care, “the claimant had known of the danger, and that he must have therefore have been deemed to have accepted it voluntarily.” (Tomlinson v Congleton BC 2003 2006). The Court observed that “it seems to me that Mr. Tomlinson suffered his injury because he chose to indulge in an activity which had inherent dangers, not because the premises were in a dangerous state.” (Judgments – Tomlison (FC) (Original Respondent and Cross Appellant) v. Congleton Borough Council and Others (Original Appellants and Cross Respondents). Donoghue v. Folkestore Properties (2003) 2 WLR 1150, Again, if one needs to consider the fact in Donoghue v.Folkestore Properties (2003) 2 WLR 1150, this reinforces the case rendered in Tomlinson v Congleton BC (2003) In that case, citing section 1 (3) (b) the Court believed that duty of care requires that the section 1 (3) (b) be invoked which states, interalia “he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not);” In the case of Donoghue v.Folkestore Properties (2003) This was absent in this case and therefore, no duty of care passed on from the defendant to the applicant. (United Kingdom Legislation for Tonga. 1998). On the strength of case decisions enunciated in various case laws, the aspect that is emerging is whether the fault lies with the defendant, the injured person, or the premises which did not present warnings or protection, which was incumbent on the part of the occupier to provide. Again the argument could also be in terms of the fact that the occupier has to maintain a duty of care in ensuring that foreseeable and reasonably types of accident needs to be duly protected, without which the probability of anybody contracting injuries are imminent, at the same time, he cannot, by any stretch of imagination, be held liable for carelessness or lack of care on the part of the injured party, or his willingness to go ahead with the risk, fully aware of its consequences. Changes in section 1 of the Occupiers’ Liability Act: The CROW Act has made certain changes in section 1 of the Occupiers’ Liability Act 1984 in certain portions, including by removing the liability of occupiers of access land to those exercising the right of access, and to trespassers, in respect of risks arising from natural features of the landscape “or any river, stream, ditch or pond whether or not a natural feature.” (Marine and Coastal Access Bill. 2008). Thus, it could be said that considering the fact that Liam is a trespasser, whose activities falls squarely in the domain of the Occupiers Act 1984, and more importantly, he had acted in his own volition being fully aware of the dangers in such sports, and disobeying the rules against trespassing, there may be no liability on the part of Cygnemer County Council (CCC) since they are not directly to blame for his actions. However, the warning sign display by them is not specific in nature and does not disclose the real risks, it needs to be clarified at a later stage. Chris: In the case of Chris, the injuries were indirect cause of trespassing, in trying to help Liam in getting medical aid. The Council could not have possibly gained foreknowledge of this accident that could happen to Chris under the provisions of Occupiers Liability Act 1984. Under it the existence of duty must have the following aspects: 1. Knowledge and foresight of the danger 2. Knowledge or predomination that trespassers would transgress and bring about danger to themselves. 3. It would be necessary for the occupier to provide reasonable protection to all people in general, whether legal entrants or trespassers. However, there is one important aspect in this case, in that the clause of Occupier’s liability 1957, would also apply, since the injuries were not to the person of Chris, but to her visor. It is seen that under the Occupiers Liability 1984, which applies to trespassers, only Injuries in terms of “anything resulting in death or personal injury, including any disease and any impairment of physical or mental condition” are covered. (Occupiers Liability Act 1984). The losses suffered by Chris are not physical injures and therefore does not come within the purview of Occupiers Liabilities Act, 1984. Further, since Chris is a transgressor and not a legal entrant, she would not come within the purview of Occupiers Liability Act 1957. “The Occupiers Liability Act 1957 protects lawful visitors while Occupiers Liability Act 1984 affords protection even to trespassers.” (Chigbo 2006). Noelle: It is seen in this case law, in as far as Noelle’s role is concerned that she is a legal entrant since she has responded to a medical call and had not come for sporting activities. The law relating to the duty of care owed by the occupier to legal entrants and the liability for physical injuries and loss of goods sustained by her are in terms of a wrist fracture and breakage of a costly watch needed to be seen in the context of the Occupiers Liability Act 1957. Under Section 2 Sub section 2, of the act, there is a general duty of care to ensure that in all situations, “the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.” (Swarbrick 2009). Again, under section 2 Sub section 5, it is seen that the common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor.” (Swarbrick 2009). However, it is seen that in this case, Noelle had not willingly accepted the risks which happened to cause the injury. The fact that due to the apparent lack of care of the occupier, or his agent/servant led to the exposed tree root over which she tripped and fell. A person of reasonable care and caution could also have fallen down, since there were no warning nor was the offending tree root fenced off. The occupiers need to be under responsibility and answerability for Noelle’s injury. Under the provisions of the Act, it was necessary for Cygnemer County Council (CCC) to have known before hand that tree stumps could be the cause of potential injury to visitors, and it was necessary on their part to take necessary steps or precautions to eliminate such risks. Under the Provisions of Section 2 Subsection 4, it is said that for assessing whether due care has been exercised by the occupier, in view of the prevailing circumstances, it is necessary that: (a) Damages or injuries are caused despite warning; the occupier would be freed of his responsibility if it was enough for the visitor to reasonably secure. (b) where injury inures to a visitor by a risk due to the defective implementation of any work of construction, repairs by an outside contractor working by the occupier, the occupier need to prove that he had exercised due reasonableness and prudence in his work and the lack of care could not be attributable to improper supervision of outside contractor or he had “taken such steps” as was necessary to enforce work ethos on work force. (Judgments – Tomlison (FC) (Original Respondent and Cross Appellant) v. Congleton Borough Council and Others (Original Appellants and Cross Respondents). Role of Cygnemer County Council (CCC): Prima facie, Cygnemer County Council (CCC) may be held responsible for Liam’s injury, provided it is proved that in that the accident occurred due to their wilful volition of the applicants, when they ignored the warning board exclusively disallowing trespassers beyond that point. In other words the occupiers would be free of liability if he had provided warnings that, in all situations, would have rendered the visitor to be safe. In this case however, it is seen that the warning was a general disclaimer and could not absolve occupier from liabilities, especially regarding Noelle, who was not only a legal visitor but was also unaware of the general dangers inherent in the said premises. Warning needs to be detailed and specific: The Warning board was not a specific one; It needed to warn about the specific type of danger or risk lying ahead – Mere “no trespassing’ board is not enough. 1. The Warning should have mentioned about the inherent dangers of motor cross in that vicinity. It is well known that young people being active would venture in danger areas without knowledge or previous permission. The occupiers needed to have exercised a greater degree of caution 2. Whether the degree of protection offered was in commensuration with the risks It could be said that the occupiers may have not succeeded in exercising reasonably caution in cordoning off the pond to avoid the chances of accidents. By deliberately ignoring the warning, Liam and Chris had become trespassers According to the law it recognises that it would often be excessively onerous to require occupiers to take measures to protect the safety and health of people who came upon their land without call or consent. They should not generally be able to force duties upon reluctant hosts. In the application of that principle, the Court saw little distinction between a person who comes upon land without permission and one who, having come with permission, does something which (s)he is not authorised to do. In both situations, it is seen that the trespasser would be imposing upon the occupier a duty of care which he is not bound to accept or honour. In order to claim compensation by enforcing existence of duty, the applicant needs to prove beyond doubt that the fault arouse not due to the applicant’s negligence or lack of care but “the injury was someone elses fault.” ((Judgments – Tomlison (FC) (Original Respondent and Cross Appellant) v. Congleton Borough Council and Others (Original Appellants and Cross Respondents). Conclusion: It is seen that in the case of Occupiers liability, in most cases, firm evidence of negligence and lack of care on the part of the occupiers need to be proved. Even in the case of fatal accidents that occur due to unprecedented circumstances, occupiers can be free from liability if they have issued prior notice to the public regarding the dangers of the sport and the applicants are aware of contents of such notices. In the case of White v Blackmore [1972] 2 QB 651, [1972] 3 All ER 158, [1972] 3 WLR 296, 116 Sol Jo 547, the said person died due to injuries sustained while watching a motor racing event, though he was more of a participant and not a spectator. Although he was expected to be aware of the notice and the terms disclaiming the sponsor company, the fact remained that “a visitor to a motor race meeting did not willingly accept the risk of injury due to the organisers defaults in ensuring his safety; since deceased did not have full knowledge of the risk he was running from the faulty layout of the ropes, he had not willingly accepted the risk of injury arising from the defendants default.” (Case Law Database: White v Blackmore. 2008). However, the Courts held that the accident occurred due to the negligence of the person in not following safety instructions and not the lack of duty of the sponsors. Bibliography Case Law Database: White v Blackmore. (2008). [online]. Law Teacher: UK Law Essay and Dissertation Writing Services. Last accessed 12 January 2009 at: http://www.lawteacher.net/cases/neg15.htm/file-52.php CHIGBO, Clement. (2006). Occupiers Liability and the Position of a Trespasser. [online]. The Bahama Journal. Last accessed 12 January 2009 at: http://www.jonesbahamas.com/?c=135&a=8864 Judgments – Tomlison (FC) (Original Respondent and Cross Appellant) v. Congleton Borough Council and Others (Original Appellants and Cross Respondents). [online]. www.parliament.uk. Last accessed 12 January 2009 at: http://www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd030731/tomlin-2.htm Marine and Coastal Access Bill. (2008). [online]. www.parliament.uk. Last accessed 12 January 2009 at: http://www.publications.parliament.uk/pa/ld200809/ldbills/001/en/09001x-l.htm Occupiers Liability Act 1984. [online]. OPSI: Office of the Public Sector Information. Last accessed 12 January 2009 at: http://www.statutelaw.gov.uk/content.aspx?LegType=All+Primary&PageNumber=43&NavFrom=2&parentActiveTextDocId=1286286&ActiveTextDocId=1286286&filesize=13771 SWARBRICK, David. (2009). Occupiers Liability Act 1957. [online]. Swarb.co.uk. Last accessed 12 January 2009 at: http://www.swarb.co.uk/acts/1957Occupiers_LiabilityAct.shtml Tomlinson v Congleton BC 2003. (2006). [online]. The K-Zone: Wasting Your Internet Bandwidth Since 1994. Last accessed 12 January 2009 at: http://www.kevinboone.com/lawglos_TomlinsonVCongletonBC2003.html United Kingdom Legislation for Tonga. (1998). [online]. Paclii. Last accessed 12 January 2009 at: http://www.paclii.org/to/legis/to-uk_act/ola1984211/ Read More