Chapter 9 Guidance on answering the end-of-chapter problem questions
It is always of importance in occupiers problems to work out whether the entrant on to premises is a visitor or a non-visitor because the liability regimes applicable to each are very different. While both Juanita and Jose are on the premises initially as invitees or licensees, Jose most clearly oversteps the mark and becomes a trespasser or non-visitor: OLA 1957, s 2(6); The Carlgarth. Although the pool might be seen as an ‘allurement’, this doctrine probably would not apply to Jose – who at 12 should clearly understand that he was a trespasser. It is less clear that Juanita is a trespasser; she is simply engaged in the task of rescuing Jose. Under the OLA 1957, the occupier will owe Juanita the common duty of care with respect to the state of the premises: 2(1). The Hotel must take such care as to see that the visitor is reasonably safe: s 2(2). Various breach factors can be considered in determining what the appropriate standard of care should be, but the fact that the wooden plank is in a state of disrepair and collapses makes it relatively easy to argue breach. Under the OLA 1984, the starting assumption is that no duty of care is owed to Jose: Donoghue v Folkstone Properties. He would need to prove that the Hotel knew or had reasonable grounds to believe both that Jose was present in the vicinity (which might be made out) and also of the specific risk of harm. There must also be a reasonable expectation that some protection would be offered: see OLA 1984, s 1(3). There is little evidence that the Hotel had that knowledge. In any case, they did fence off the pool. Recovery can be had for damaged property under OLA 1957, but not under OLA 1984: OLA 1984, s 1(8).