Shawaaf A

Video transcript

Hello everyone, I'm Shahaf and I am a law teacher at LLVR. Today we're going to break down a really important problem question on occupier's liability in a way that's simple, clear and easy to follow. Alright, so let's walk through this step-by-step. Now, let's read the question here, the scenario. The roof of Sonja's house was in urgent need of repair. Some of the tiles were very loose and one fell on Aurora, a 16-year-old girl. As she was delivering Sonja's newspaper, on previous visits, Aurora had noticed that the tiles were loose and might fall, but had decided to ignore the risk. In the second scenario, Sonja had also moved a broken washing machine into her back garden so it could be recycled later. That night, Jenny, age 23, decided that she would burgle Sonja's house. She entered the garden through a gap in the fence and fell over the broken washing machine in the dark, cutting her head badly. Now, the question here is asking, evaluate the civil rights and remedies, if any, of Aurora and Jenny against Sonja. This is for 20 marks, and we all know how to solve 20-mark questions previously in these previous sessions. There usually are four paragraphs, so let's break this down. First of all, what is this question about? It's a classic occupier's liability problem. That means, when someone owns or controls land, what duty do they owe to people who come onto it? The law splits this into two main parts. The Occupier's Liability Act 1957, which applies to lawful visitors only. The Occupier's Liability Act 1984, which is the second part, applies to trespassers, also known as unlawful visitors. So straight away, we're dealing with two completely different legal standards. One has more liability, and the other has lesser liability. We have two claimants. The first claimant is Aurora. Aurora is one of the claimants. The second claimant here is clearly who? Jenny. Jenny is the other claimant here. This is the other girl. So, Aurora is a lawful visitor, according to the 1957 Act. Aurora is clearly a lawful visitor. She is delivering a newspaper, so she falls under the 1957 Act, Section 1, Subsection 3a. Sonja, on the other hand, is the Occupier, under Section 1. So, Sonja here is the Occupier, because it's her house. Now, she has sufficient control over the premises, as per Section 1, as confirmed in Wheat v. Lacan, Ltd. So, what duty does Sonja owe? Under Section 2, Subsection 2, the common duty of care is to take reasonable care to ensure that visitors are reasonably safe. Now, apply that to the facts. The loose roof tiles show a dangerous state of the premises. So, see, the tiles were loose and might have fallen, but she decided to ignore the risk. One actually fell and caused the injury, which we've seen in this scenario. If Sonja knew or ought to have known about the danger, then this is a breach. We assess breach using negligence, which has style factors. The first factor of negligence is the duty of care. You owe a legal duty of care to your neighbor. The second element is the breach of that duty. The third one is causation, and the final one is the damage caused by the causation and the breach. So, because of that breach, the person had been incurred by an injury. Now, magnitude of the risk and seriousness of harm. This also matters, so by magnitude it means remoteness of the harm and seriousness of the harm. So, Bolton v. Stone tells us the greater risk, the more care is expected, which will be established in that precedent. Now, Paris v. Stepney shows that a higher standard applies when the potential harm is serious. A falling roof tile can cause severe injury, as we can see here, obviously. Now, more care is required in this scenario. Cost and practicality of precautions. Latimer v. AEC says we balance the risk against the burden of preventing it. Fixing loose tiles is a simple, low-cost precaution, so it's reasonable to expect Sonja to have done it. Now, what about warnings? Section 2, subsection 4A of the OLA 1957 Act says a warning can sometimes discharge the duty. But here, there was no warning at all. Contrast Rose v. Nathan, where a warning was enough because the danger was obvious to chimney sweeps, and Hazelden v. Dawe, where a warning wasn't enough because the danger was hidden, and the occupier should have done more. So these two precedents show us that there could be different scenarios which have separate endings, separate outcomes. On our facts, Sonja gave no warning, so she can't rely on that defense. Now, consider Aurora's own behavior. She knew about the danger, didn't she? And she ignored it, as we can see here. She ignored the risk. Now, that raises contributory negligence. The Law Reform Contributory Negligence Act 1945 allows damages to be reduced to reflect her share of fault. What about Voluntee Non-Fit Injury, a Latin term? Section 2, subsection 5 and Section 2, subsection 4B mention it, but as Smith v. Baker shows, knowledge of risk is not the same as freely accepting it. Now, what is Voluntee Non-Fit Injury? It means your harm has been impended by you while you're contributing to it. It's because of your own volition, which is what Voluntee means in Latin. Knowledge of risk is not the same as freely accepting it. Aurora came to deliver a paper. She didn't voluntarily assume the risk of injury, so Voluntee will not succeed in this scenario, which means it will not suffice as a defense. So, conclusion for Aurora, there's a clear breach of duty. She has a strong claim, but her damages will likely be reduced for contributory negligence. Now, the second scenario, about Jenny. Jenny is the other claimant. Jenny is a trespasser. She's not a lawful visitor, as you can see here. She wanted to burgle Sonja's house. Now, Jenny's situation is completely different. Jenny is a trespasser, so the Occupier's Liability Act, 1957, will not apply. However, the Occupier's Liability Act, OLA 1984, will apply. Under Section 1, subsection 2, a trespasser is anyone who is not a lawful visitor. Now, what duty does Sonja owe as an occupier? The 1984 Act doesn't create any automatic duty. Under Section 1, subsection 3, three conditions must all be satisfied. Number 1, Sonja must be aware of the danger. She knows about the washing machine, so Condition 1 is satisfied. So, she knew about the danger. She was aware of the danger. Number 2, she must know or have reasonable grounds to believe that someone may come near it. This is where the claim starts to fall apart. Would Sonja expect trespassers in her garden at night? Probably not. This is similar to Donahue v. Folkestone properties, where no duty arose because the Occupier had no reason to foresee someone diving into the harbour in winter. So, you have to have foreseeability. Compare British Railways v. Herrington. There, the Occupier knew children regularly played on the land, so a duty arose. Here, there is no evidence Sonja knew or should have known burglars would target her garden. Number 3 is, the risk must be one she can reasonably protect against, even if Conditions 1 and 2 were met. We'd ask, what would reasonable care look like? Removing a washing machine? Possibly. But we must also consider the nature of the risk. Look at the danger itself. A washing machine in a garden is an obvious risk. So, this broken washing machine is a clear obvious risk in the dark, which could harm someone, even a trespasser. So, it's not a concealed hazard, as in, the Occupier is aware of the danger. The hazard is known to the Occupier, it is not concealed. Tomlinson v. Congleton Borough Council is a key precedent, which says, there is no duty to protect against risks that are obvious to a person of ordinary intelligence. Now, another case, Keown v. Coventry and Platt v. Liverpool City Council, also show that no liability arises where the danger is obvious, and not due to the state of the premises in a hidden way. Even if a duty existed, it's limited to Section 1, subsection 4, which says, the duty is only to take reasonable care. It is not reasonable to make premises completely safe for burglars, obviously. Scott v. Associated British Reports for Burglars reminds us that the standard is flexible. What's reasonable depends on the circumstances. And here, Jenny's own illegal conduct is a powerful factor. Now, add Jenny's conduct. She is committing a crime, as in, she is burgling the house, right? Sonja's house. Attempting burglary. This engages the principle of exturpicaza, which means no claim based on illegality. Even if the court allows a claim, damages will be heavily reduced. The case of Reville v. Newbury shows that a trespasser can sometimes claim, but their damages are cut down significantly because of their wrongdoing. Because, well, she went to burgle, which is a criminal offence. Section 1, subsection 8 of OLA 1984 limits damages to personal injury only, which is pain and suffering, loss of amenity. No property damage is recoverable, right? Recoverable for the claimant. Now, here, the claimant is clearly a burglar, not the occupier. Conclusion for Jenny. Her claim is very weak, even as a trespasser. The duty is unlikely to arise because the foreseeability of trespassers is low, and the risk is obvious. Even if it did, her legal actions and the limited nature of the duty mean any award would be minimal. Now, let's wrap everything up. Aurora has a strong claim under the 1957 Act, so Aurora actually has a valid claim. I'm not underscoring Jenny's claim, however, she's a trespasser, so this has less culpability of harm. Sonja breached the common duty of care, but Aurora's own knowledge may reduce her damages through contributory negligence. Jenny has a much weaker claim under the 1984 Act. This shows that the three conditions are not at all met. The risk is obvious, and her illegal conduct weighs heavily against her, which is burgling Sonja's house. In both cases, the main remedies are damages, which means general damages for pain and suffering, and special damages for things such as loss of earnings and medical expenses. Now, I'm going to show you all the answer. I'm going to edit this. Now, this is the answer that I wrote. This is generally the answer. The first paragraph has the definition and description. This can be classified as AO1. AO1 has knowledge and understanding. The subject matter here is OLA 1957, Occupier Stability Act 1957, as I've written down here. The second portion of OLA is OLA 1984, which applies to trespassers. I have written these both down here. These are all knowledge. I'm not really applying anything from this scenario. This is knowledge, AO1. Now, the second paragraph usually consists of AO2 plus AO3, which is application and analysis. Now, why is application and analysis in the second paragraph? Because we're relating to the scenario. We're mentioning Aurora. There's names here. Sonja as well. Jenny as well. So we're applying the law. This is me applying the law. This is the application. So I'm applying the section from the statute, and I'm applying common law cases. Well, not yet, but yeah. The analysis is me explaining what the section outlines and stands for and how it relates to the scenario that is given here in the question. Now, the third paragraph is usually counterpoints. However, this question is special because you can also take a different approach, which is evaluating in the same paragraph. So sometimes the second paragraph may have AO4 in this, but this is not necessary. You could mention Aurora's case and Jenny's case in the second paragraph together. But here I approach it differently because I mentioned however here instead of the third paragraph. So I evaluated right after I put the analysis and application. But usually the format is I write the application and the analysis first, and then in the third paragraph it's only the evaluation. But you can approach it as countering the points immediately, which is what I did in this question because this is an exception. There's two types of occupier's liability cases here. In the third paragraph here, I did the same thing. So I mentioned the application analysis, so AO2 plus AO3. And towards the end, I mentioned the defenses, the possible excuses Jenny could have, which is AO4, counterpoints, which is also known as evaluation. You're countering your own positive points or negative points. In this scenario, it's me playing prosecution in the second paragraph and also the defense lawyer in the last portion of the second paragraph. I did the same thing here. If you want, you can do the entire evaluation in the third paragraph, but that is not necessary. For the final paragraph, I mentioned the conclusion. The conclusion is important because you're outweighing the facts, who's benefiting from the case, and what sentences they might get as this is a tortious liability. Well, this is not a sentence, but you're having to pay damages, right? So that's a form of remedy that you have to give. So in conclusion, if it's a criminal case, you mention the sentences they might get. If it's a civil case, you mention damages or equitable remedies. So here, in conclusion, Aurora has a stronger claim against Sonja for injuries sustained from falling roof tile. Sonja's failure to address the risk posed by the loose tiles amounts to a breach of her duty of care. So I basically summarized the whole thing here, and I mentioned what she has to pay, so general damages or special damages. So Aurora can claim full damages for her injury. Jenny's claim will be much weaker because she's a trespasser, with any damages likely being reduced due to her illegal and voluntary actions, which is burgling Sonja's house. The primary remedy for both will likely be damages, like I've said, so paying monetary sums, but the amount awarded to Jenny would likely be lower due to her contributory negligence. That's it for today. Make sure you revise the key sections, the common law cases, practice applying them clearly like this, and you'll be ready for any occupiers of the problem. See you all in the next session. Thank you for joining me today. Goodbye.