Chapter 11 Answers to end-of-chapter questions

Occupiers' liability

1. What are the main similarities and differences between the Occupiers' Liability Act 1957 and the Occupiers' Liability Act 1984?

The key differences between the two Acts relate to who is owed a duty of care and how a duty of care is established. Table 11.1 detailing the differences/similarities between the Occupiers' Liability Acts 1957 and 1984 is the best place for you to check your answer to this question. The 1957 Act applies to visitors, while the 1984 Act applies to non-visitors (usually trespassers). All visitors are owed a common duty of care under the 1957 Act simply because they are visitors (s2(1)), however a duty of care will not be owed to a non-visitor under the 1984 Act unless the conditions set out in s1(3) are met: (a) that the occupier is aware of the danger or has reasonable grounds to believe that it exists; (b) and the occupier knows, or has reasonable grounds to believe that someone is, or may come, in the vicinity of the danger (whether or not they have lawful authority to do so); (c) and the risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer some protection. A strong answer would also consider why there are different rules for visitors/non-visitors and whether these distinctions can be justified. You can read our thoughts on this in sections11.1 and 11.4 of Chapter 11.

It is important to know what the Acts say and how they actually ‘work’ in order to be able to apply them to problem questions, as well as to be able to analyse them in the context of an essay. This is one of the reasons we have provided an annotated version of both the 1957 and 1984 Acts (also available to download and print from the ORC) and a table outlining ‘at a glance’ the differences between the Acts in section 11.6 of Chapter 11.

2. Do you think the House of Lords would have come to the same decision in Tomlinson if John Tomlinson was a 4 year old child? Also, given the evidence before the House of Lords about 'macho male diving syndrome' what if he had been an 18 year old woman?

The purpose of this question is to get you thinking about some of the policy issues/factors which lie behind the House of Lords' decision in Tomlinson v Congleton Borough Council [2004]. In particular the arguments relating the importance of individual responsibility are less easy to apply in relation to a young child than to a young man (although see discussion of the Court of Appeal decision in section 11.4.1 note 30). Since the enactment of the Occupiers' Liability Act 1984, the courts have been less willing to stretch the provisions of the 1957 Act so as to ensure that child-trespassers fall within its remit. Thus, the 4 year old child would have to establish that the council owed them a duty of care under the 1984 Act. Remember the concept of 'allurement' discussed in Jolley v Sutton is only relevant in relation to establishing foreseeability of, here, a child entering the water and thus whether it was reasonable for the council not to take steps to prevent this. This will only become relevant once it has been established that the council owes the child a duty of care.

Given the evidence before the courts in relation to 'macho male diving syndrome', arguments relating to allurement may also be harder to establish had John Tomlinson been an 18 year old woman. What do you think about this?

You may also find it helpful to read the discussion of Tomlinson in section 21.6.

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