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    Activity 7-6 Scenario

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    Yusuf Limalia
    The document provides advice to Clarissa and Gordon regarding potential liability claims under the Occupiers' Liability Act 1984. For Clarissa, who climbed onto a buoy and was injured despite warning signs, it is argued that she would be considered a trespasser under the Act. Prior case law established that the defendant fulfilled their duties even with awareness of the risk as long as warnings were provided. For Gordon, who tripped on tangled ropes while on a commonly used path, all three criteria for occupier liability appear to be met. The owners were aware of the dangerous state of the premises and risk to visitors, establishing they could reasonably be expected to offer protection against the risk. Gordon may therefore succeed in a

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    Activity 7-6 Scenario

    Uploaded by

    Yusuf Limalia
    9 views3 pages
    The document provides advice to Clarissa and Gordon regarding potential liability claims under the Occupiers' Liability Act 1984. For Clarissa, who climbed onto a buoy and was injured despite warning signs, it is argued that she would be considered a trespasser under the Act. Prior case law established that the defendant fulfilled their duties even with awareness of the risk as long as warnings were provided. For Gordon, who tripped on tangled ropes while on a commonly used path, all three criteria for occupier liability appear to be met. The owners were aware of the dangerous state of the premises and risk to visitors, establishing they could reasonably be expected to offer protection against the risk. Gordon may therefore succeed in a

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    Activity 7-6 scenario

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    The document provides advice to Clarissa and Gordon regarding potential liability claims under the Occupiers' Liability Act 1984. For Clarissa, who climbed onto a buoy and was injured despite warning signs, it is argued that she would be considered a trespasser under the Act. Prior case law established that the defendant fulfilled their duties even with awareness of the risk as long as warnings were provided. For Gordon, who tripped on tangled ropes while on a commonly used path, all three criteria for occupier liability appear to be met. The owners were aware of the dangerous state of the premises and risk to visitors, establishing they could reasonably be expected to offer protection against the risk. Gordon may therefore succeed in a

    Copyright:

    © All Rights Reserved
    Download as DOC, PDF, TXT or read online from Scribd
    Download as doc, pdf, or txt
    9 views3 pages

    Activity 7-6 Scenario

    Uploaded by

    Yusuf Limalia
    The document provides advice to Clarissa and Gordon regarding potential liability claims under the Occupiers' Liability Act 1984. For Clarissa, who climbed onto a buoy and was injured despite warning signs, it is argued that she would be considered a trespasser under the Act. Prior case law established that the defendant fulfilled their duties even with awareness of the risk as long as warnings were provided. For Gordon, who tripped on tangled ropes while on a commonly used path, all three criteria for occupier liability appear to be met. The owners were aware of the dangerous state of the premises and risk to visitors, establishing they could reasonably be expected to offer protection against the risk. Gordon may therefore succeed in a

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    Activity 7.

    Advise Clarissa and Gordon.

    In the tort of Occupier’s Liability , the matter is argued on a level of statutes rather than
    on common law principle of negligence. The Occupational Liability Act 1984 ( OLA
    1984) covers the unlawful visitor on the principle of the state of the premises. In this
    context, it is important at the onset of the case, to define the concepts of an unlawful
    visitor as per OLA 1984 and what is an occupier of premise and what is a premise in
    the same context.

    Who according to OLA 1984 is an unlawful visitor?

    As per OLA 1984 a visitor is anyone who has unlawfully gained access or trespassed
    onto land or premises owned by an occupier. In other words that person has not gone
    onto the premises with the lawful authorisation of the occupier by either permission,
    licence or implied contractual service to be provided,

    What is a premise and occupier of a premise ?

    Occupier of premises is someone who has a degree of control over the premises. It can
    be the owner, the tenant, the manager of a shop, the council. In broad terms, everyone
    who exercise a degree of control over the state of the premises. Premises need not be
    an actual building or land. It can be any tangible asset , a vessel at sea, an aircraft a car
    etc. A good case to illustrate this would be Jolley V Sutton London Borough Council
    [2000] where children played and got injured on an abandoned boat on the council
    land. The council did nothing to remove the boat and it can be said that it impliedly took
    control of the boat by leaving it on its land.

    The criteria set by the Act regarding the qualification to be able to bring an action
    against the occupiers :

    Section 1 (3) of the OLA 1994 an occupier owe a duty to a trespasser if these three
    criteria are met:

    - That the occupier is aware of the danger or has reasonable grounds to believe
    that it exist. This means that the occupier must be aware of the danger that his
    premises could display if the state of the premises is not good. In Rhind V
    Artbury Water Park Ltd [2004] , denying the claimant claim, the court held that
    the defendant had no knowledge nor there was reasonable grounds for them to
    believe that his premises i.e his lake had a hidden container beneath.
    - Knowledge of the presence of non-visitor in the vicinity of danger. This means
    that the occupiers knows or has reasonable grounds to believe that someone is
    or may come in the vicinity of danger. In Swain V Puri [1996] it was held that He
    must have actual knowledge of such background or primary facts as would
    support such an inference.
    - Reasonable Expectation of protection against the risk. The risk is one against
    which in all the circumstances of the case , the occupier may reasonably be
    expected to offer some protection. Tomlinson v Congleton Borough Council
    [2003]
    The case and Arguments for Clarissa.

    At the very beginning of this discussion it is important to clarify that despite being on a
    resort with the permission of the occupier which the latter has control over the premises,
    the mere fact that Clarissa did not have the occupiers’ permission to climb onto the
    buoy ( further ignoring the warning sign) makes he as trespasser as soon as she
    climbed over the buoy.

    In the leading case of Tomlinson v Congleton Borough Council [2003] it was held that
    the claimant status as a lawful visitor to the park was limited to the time before he
    entered the lake. The claim of Tomlinson was rejected on the basis of there was no risk
    to the claimant due to the state of the premises or anything done or omitted upon the
    premises and so no risk of a kind which gave rise to a duty of care under either of the
    OLAs.

    Further Lord Hoffman stated that : though the defendants were aware of the danger
    ( with warning signs) and had reasonable grounds to believe that people were in the
    vicinity of it, the risk was not one against which they could be reasonably expected to
    offer protection.

    In the present case, Clarissa is a 16 year old girl who is fully capable of reading a
    warning sign and can has the mental capacity to contemplate danger. She was even
    without the supervision of her parents, which means that she was mature enough to be
    on her own with friends to enjoy the resort.

    Taking the above information into account and the authority in the Tomlinson case, it
    can be said that The Criterion Outdoor Holiday Centre has fulfilled the criteria of Section
    3 of the Act and also the requirement for establishing duty of care under section 1 o the
    act has not been met.

    Also in Donoghue V Forlkestone Properties Ltd [2003] the claim was denied because
    the defendant knew that people were swimming in the summer days and not expected
    to swim during winter nights. Same for clarissa. The defendant can argue that they
    knew people were swimming in the evening whilst they were not around and not after
    lunch when people are around.

    The Case for Gordon

    The case for Gordon has a potential to succeed in both the common law principles of
    negligence and in the Occupier’s Liability Act 1984. For purpose of analysis, we shall
    look at the OLA 1984 for the claim.

    In determining the liability under the Act, we shall identity the three criteria set out in
    Section 3 in direct relationship with Gordon Injury and come to a conclusion:

    1) Was the occupier is aware of the danger or has reasonable grounds to


    believe that it exist.
    Yes. The premises had tangled ropes on the ground. This means that the state of
    the premises was not good
    2) Did the occupier had Knowledge of the presence of non-visitor in the
    vicinity of danger.
    Yes. As the case mentions, the path was commonly used by holiday makers. In
    Swain V Puri [1996] it was held that He must have actual knowledge of such
    background or primary facts as would support such an inference.
    3) Would there be reasonable expectation of protection against the risk.
    Yes. Since the owners knew of the state of the premises, they could reasonably
    be expected to offer some protection.
    Having failed in all these three criteria, Gordon may be awarded damages in respect of
    his injury through the Private owners.

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