Essay
Occupier's Liability Model Essay
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- AQA
A 30 mark, A grade model essay assessing a problem question on Occupier's Liability
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It is submitted that under section 1 of the 1984 Occupier’s Liability Act (OLA), and amended in the case of Tomlinson,Jack will likely not be tortiously liable for Sam’s injuries as he is a trespasser. Even if Jack is somehow found liable for
Sam’s injuries, it is evident that the defence of warning signs under s2(4a) of the OLA 1957 will apply as seen in the
case of Rae v Marrs. Moreover, under s2(3a) of the 1957 OLA, Jack will not be liable for Leo’s injuries due to the rule
of persons in a trade or calling. Jack may however be liable for Ruben’s injuries under s2 of aforementioned 1957 act
but, under s2(4c), may be able to claim the denial of “liability for the actions of independent contractors”. However,
due to not checking that the work had been properly done, it is likely that he will be unable to claim this defence, as
seen in the case of Woodward v The Mayor of Hastings. It is evident that Jack is an occupier as he had control over
the premise, which is a fixed or moveable structure, which the abandoned house clearly is.
Sam
We must see if D has a duty of care to C (s1(1)), as explained in the s1(3) test. We then shall look at dangerous state
of affairs as per s1(1) also and consider an interpretation provided in the famous case of Tomlinson. There are no
issues with s1(2) (personal injury), so we shall disregard this part. Firstly, we shall assess whether Jack owed a duty of
care to Sam, assessing first whether Jack knew of the dangers. This can be seen in the case of Ratcliffe v McConnel
where the defendant put up a warning sign, indicating he was aware of the dangers. This is similar to our case where
our defendant Jack put up a warning sign, indicating that he too was aware of the dangers of the house. Secondly,
the defendant must be aware that the claimant or possible claimants were in the vicinity, as seen in the case of Higgs
v Foster where a police officer without a warrant card broke into a construction yard and it was held that the
occupiers did not know that C was in the vicinity. Regarding our defendant Jack, putting up warning signs indicates
that he knew a claimant would be in the vicinity. The final section of this duty of care which we must assess is
whether the occupier is expected to protect the claimant from the danger as he can only be liable if it is reasonably
expected that he should protect C. This can be viewed in the case of Donoghue v Folkestone Properties where it was
held that the occupier was not expected to protect people from midnight swims in the docks. Similarly, in our case,
Jack would clearly not be expected to protect trespassers like Sam from knocking down a barrier to gain entry.
Furthermore, in Tomlinson, judges added to this duty of care, borrowing an idea from the defence of Volenti and
stating that trespassers are responsible for their own actions, thus making Sam responsible for tearing down the
boards. Therefore, it is autre clare that Jack does not owe Sam a duty of care.
Nonetheless, we shall continue to assess whether the rest of the test is applicable to our scenario. The second half of
this test is found in s1(1) of the 1984 OLA and is that the property must be in a dangerous state of affairs. This was
later amended in Tomlinson to depend on what the property is and that it must be dangerous for what it is.
Tomlinson also added s2(2) of the 1957 OLA into this test, saying that the property only has to be reasonably safe
not absolutely safe. A key example of this can be seen in the case of Keown where it was held that the hospital fire
escape was not in a dangerous state of affairs for a fire escape. Applying this to our defendant Jack, having rotting
wood is not dangerous for an old house. Even if the court held that it was in a dangerous state of affairs, it is evident
that Jack made it reasonably safe, the section of the test added from Tomlinson, by putting up warning signs, which
can be viewed in the case of Rae v Marrs where the defendant put up “do not enter” signs and this made the
premises reasonably safe. Therefore, it is evident that the property was not in a dangerous state of affairs.
Unlike visitors under the 1957 Act, there is no distinguishment between adult and children trespassers so the fact
that Sam was only 14 and thus a child is irrelevant. Therefore, it is clear that Jack is not liable for any of the injuries
against Sam.
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