4286705
Description
Flashcards by pavlina.hunt, updated more than 1 year ago
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Created by pavlina.hunt
almost 9 years ago
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| Question | Answer |
| OLA 1984 Scope of occupiers' duty | s 1(1)(a) - 'persons other than visitors': mainly trespassers, but also those using private rights of way: Following the Countryside and Rights of Way Act 2000 - a duty is owed under the 1984 Act to those exercising 'access to land' for 'open-air recreational' purposes, excluding risks from natural features of the land or some unnatural like climbing a wall or a fence. |
| Occupiers and premises | s1(2) - identifies them in the same way as OLA 1957. Again it has to be the state of the premises and not the action that raises the duty of care. - Keown v Coventry National Health NHS - the action of climbing the underside of a fire escape caused injuries; - Revill v Newbery - shooting a burglar is action. |
| When does a duty arise? | s 1(3) - only if all three are met: (a) he is aware or should have been of the danger; (b) he was aware of the trespasser or should have been; (c) the risk was one against which it was reasonable for the occupier to offer some protection. - Rhind v Astbury - (a) could not know there was container in the water; - Donoghue v Folkstone Properties - (b) cannot anticipate divers in the middle of the night in Winter; - Tomlison v Congleton DC - (c) there was a warning, no need for more protection, also not the state of the lake, but the diving caused the injuries. |
| Standard of care | s 1(4) - 'the duty is to take such care as is reasonable in all the circumstances of the case to see that [the entrant] does not suffer injury on the premises by reason of the danger concerned' The courts will weigh up all the factors as in common law negligence: - Ratcliff v McConnell - the cost of taking precaution is also taken into account. |
| Warnings | s 1(5) - a warning or discouraging people from entering may discharge the duty in 'appropriate cases' - Regarding adults Tomlinson (Dangerous water: no swimming) implies that almost any notice will be adequate. With children prevention from entry is more appropriate. |
| Exclusion of liability | No express provision, but it is thought that the statutory duty is excludable; otherwise trespassers would be in a better position than visitors. |
| Volenti non fit injuria | s 1(6) - no duty will be owed in respect of risks willingly accepted by the non-visitor - Ratcliff v McConnell - drunk college student climbed over a high fence into a locked swimming pool after hours. There was also a warning sign and a situation of obvious danger. |
| Contributory negligence | Not mentioned in the statute, but used by courts in a similar manner as in OLA 1957 |
| Defective Premises Act 1972 | Section 4 imposes a liability on landlords for damage caused by defects owing to failure to maintain or repair premises. |
| Diagram for solving a problem (under OLA 1984) | |
| Limitation period and damages | - Adults: 3 years from the event - Children: 3 years after 18 - Damages: personal injury only |
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