THIS IS JUST FOR TRESPASSERS. THE ANSWER WOULD BE DIFFERENT FOR VISITORS
Occupiers liability 1984 trespassers (9 marks)
An occupier is someone who has legal control over a premises - occupation can be shared between two or more people as in Wheat v Lacon. In the case of the British Railway Board v Herrington occupiers owed trespassers a duty of care however this was overruled by Addie v Dumbreck.
Section 2 (1) states that a duty is owed by occupiers to visitors. A visitor is someone who has express or implied permission or people with a legal right of entry such as the police.
Here Farhan enters the premises with implied permission as he has come to visit/view. However he becomes a trespasser once he goes beyond the prohibited zone. Therefore we’ll consider if Farhan has a claim under the occupiers liability act 1984 as he’s a trespasser and has been injured by the bricks.
Next we have to establish a duty which is owed by the occupier. section 1 (3) states that the occupier will owe a duty of care to a visitor if the occupier meets the three criteria: they knew of the danger, they knew of the trespasser in the area, and the occupier knew they should be reasonably expected to protect them from the danger. In Tomlinson v CBC the courts said the defendants couldn’t be liable as it was not a danger they could be reasonably be expected to offer protection against and the defendant could rely on the defence of consent.
Here fix it builders know there’s a danger on the premises because they have put up a sign and are doing construction work. Fix it builders know that others can go In the vicinity of the danger as they have a public viewing. therefore Fixit builders owe Farhan a duty of care
As in section 1(4)a breach of duty has to be considered. The courts take into account various factors to see if the duty has been breached such as the nature of the premises (eg the seriousness of the risk and cost of precautions) the nature of the trespass (if it’s malicious or careless) and the age of the trespasser. In the case of Scott V ABP the courts held that the defendant was not liable as they put up 10 foot high fences and the claimant was of sufficient age to understand the dangers
Hear the courts can take into consideration various factors to see if fix it builders breached Their duty. the seriousness of risk is higher as the bricks fell on Farhan and if it is possible that people will go into all part of the side because they have an open viewing. Farhans trespass was careless as there was a warning sign he did not see and we can assume that he is of sufficient age
The next step is to consider if the occupier took reasonable steps in the circumstances. section 1 (5) states that warnings must be clear and indicate how to remain safe. in the case of Ratcliffe v McConnell the defendants were liable as warning signs were put up prohibiting people from using the swimming pool at night
Here fix it builders put a warning sign saying danger only employees allowed to beyond this point. this is insufficient because it was easy for Farhan to miss it when he walked past. They could have put barriers or tape around the areas so people would understand clearly not to enter as it is a public viewing. the seriousness of harm is high as it’s a building site. therefore they have not fulfilled of duty and cannot rely on a warning sign
We now must measure to check if the breach caused damage using factual causation and legal causation. Factual causation is used using the but for test; “but for the defendants actions, would the harm have occurred?” If no, the test is proved. Legal causation asks if the damage is foreseeable and that anything else will be too remote
“But for Fixit builders lack of insufficient warnings would farhan have suffered any injury?” the answer is no. the damage is foreseeable as it is a public viewing and anyone can be injured because of the incomplete work as it is a building site
The final thing we can check for is to see if the occupier has any defences. we can check this in two ways; if the claimant willingly consented to the risk or if the claimant contributed to his own negligence.
Here fix it builders cannot use a defence.
therefore fix it builders owe a duty to farhan