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occupiers liability Flashcards

1
Q

What is the definition of Occupiers’ Liability?

A

The legal responsibility of an occupier for damage caused by the state of the premises.

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2
Q

Which statute applies to lawful visitors?

A

Occupiers’ Liability Act 1957

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3
Q

Which statute applies to unlawful visitors?

A

Occupiers’ Liability Act 1984

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4
Q

What is the first common element of Occupiers’ Liability?

A

D must be an occupier.

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5
Q

Who is an occupier?

A

Wheat v Lacon- anyone with enough control over the premises and there can be more than one occupier.

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6
Q

What is the second common element of Occupiers’ Liability?

A

The defendant must be an occupier of ‘premises’.

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7
Q

What is meant by premises?

A

S1(3)(a) of the 1957 act refers to having occupation or control of land and buildings, as well as a fixed or movable structure including any vessel, vehicle and aircraft.

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8
Q

What are some examples of premises?

A

Sheds, bridges, ladders, caravans, scaffolding, greenhouses, houses, factories, warehouses, fields, gardens, lakes, tents, playgrounds etc.

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9
Q

Who is a lawful visitor (third common element)?

A

-Invitees (people who have been invited onto the premises)
-Licensees (people with express or implied permission to be on the premises for a specific time/purpose
-Anyone with contractual permission (paid to be on the premises e.g ticket holder)
-Anyone with statutory permission (e.g. firefighter, police)

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10
Q

What doesn’t the term lawful visitor include?

A

Using public rights of way because no permission is needed to be on them.

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11
Q

Who is a trespasser?

A

A person who has no permission to be on the land or a lawful visitor who exceeds their permission for being on the premises (they then become a trespasser).

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12
Q

When is a duty owed under s2(1) of the 1957 Act?

A

An occupier of premises owes the same duty, the common duty of care to all their visitors.

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13
Q

What is the duty owed under s2(2) of the 1957 Act?

A

Occupiers have a duty towards visitors to take care as in all circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which they are invited to be there.

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14
Q

Which cases show what reasonable care means?

A

Laverton v Kiapasha Takeaway Supreme- Ds not liable as they didn’t have to make the shop completely safe, only reasonably safe.
Dean and Chapter of Rochester Cathedral v Debell- Tripping, slipping and falling are everyday occurrences and no occupier could possibly ensure that all areas were kept in perfect condition. No need to guarantee visitor safety.

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15
Q

What factors will the court take into account to decide if D acted reasonably?

A

-Size of risk
-Seriousness of potential harm
-Practicality of precautions
-Benefits outweigh the risk
(Don’t need cases from negligence)

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16
Q

What does s2(3)(a) of the 1957 Act say?

A

An occupier must be prepared for children to be less careful than adults and so the premises must be reasonable safe for a child of that age.

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17
Q

What is the main case for s2(3)(a)?

A

Glasgow Corporation v Taylor- the council knew the berries were dangerous and didn’t fence them off. Berries are an allurement to children so they should have taken more care.

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18
Q

What did Jolley v Sutton say about s2(3)(a)?

A

It must be foreseeable than an allurement could cause damage for D to be liable.

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19
Q

What is the rule regarding particularly young children under s2(3)(a)?

A

Phipps v Rochester Corporation- D is entitled to presume that parents will not let young children go to clearly unsafe places unaccompanied.

20
Q

What does s2(3)(b) of the 1957 Act say?

A

A person carrying out a trade/calling should appreciate and guard against any special risks ordinarily incident to it. I.e professionals should be able to protect themselves from risks normally part of their job and therefore D needs to take less care.

21
Q

Which case would you use to show s2(3)(b) of the 1957 Act?

A

Roles v Nathan. The chimney sweeps had been warned of the danger of carbon monoxide and they should be aware of this risk anyway due to the nature of their job. They should be able to protect themselves from this risk because of their profession.

22
Q

What are the specific defences to the 1957 Act?

A

-Exclusion clauses
-Warnings
-Work done by independent contractors

23
Q

How does the defence of an exclusion clause work?

A

Under s2(1) it says that a residential occupier may exclude liability via a sign/ticket/term in a contract which acts as a complete defence. However, to exclude liability for children, the child must be able to understand the exclusion and s65 of the Consumer Rights Act 2015 says that a business can’t exclude liability for personal injury or death to consumers under OLA 1957.

24
Q

How does the defence of warnings work?

A

S2(4)(a) is a complete defence where D has given a warning that in all the circumstances, would enable the visitor to be reasonably safe. Unlike an exclusion clause, this doesn’t need to be in a contract and could be used by businesses to escape liability for personal injury or death.

25
Q

In which case was the warning given inadequate?

A

Rae v Mars. The room was too dark to read the warning and so didn’t enable C to be reasonable safe.

26
Q

How does the defence of work done by independent contractors work?

A

S2(4)(b) says the occupier is not at fault for the work of an independent contractor if
-It was reasonable for the occupier to give the work to an independent contractor
-D made sure the contractor hired was competent to carry out the task
-The occupier must check the work has been done properly

27
Q

Which case would you use for the first element of work done by independent contractors?

A

Haseldine v Daw- given the highly specialist nature of the work, it was reasonable to give it to a specialist firm rather than D doing the work themselves.

28
Q

Which case would you use for the second element of work done by independent contractors?

A

Bottomley v Todmorden Cricket Club- the contractors were clearly not competent because of the way the stunts were performed and the fact they couldn’t get insurance so the defence failed.

29
Q

Which case would you use for the third element of work done by independent contractors?

A

Woodward v The Mayor of Hastings- it would have been very easy to check the work and it would have been clear that the danger still existed.
However, it may not be reasonable for D to inspect the work if the work requires specialist or technical skills to check.

30
Q

What remedies are available under the OLA 1957?

A

The occupier can be ordered to pay damages for death or personal injuries or property damage (for lawful visitors only).

31
Q

Why was Parliament forced to introduce the Occupiers’ Liability Act 1984?

A

The House of Lords said that a duty of ‘common humanity’ was owed to trespassers in Herrington v BRB (which overruled Addie v Dumbreck) which was quite vague and ill defined. Parliament then introduced the Act to make this area of law clearer.

32
Q

When does the OLA 1984 apply?

A

S1(1)(a) says that it applies to those other than lawful visitors for injury on the premises by reason of any danger due to the state of the premises or things done or omitted to be done on them.

33
Q

What are the first three elements of OLA 1984?

A

Same as for the 1957 Act i.e. occupier, premises and visitor.

34
Q

What does s1(3) of the OLA 1984 cover?

A

When a duty of care is owed. There are three elements that must be passed.

35
Q

What does s1(3)(a) of the OLA 1984 say?

A

D must be aware of the danger or has reasonable grounds to believe it exists.

36
Q

Which case is an example of s1(3)(a) of the OLA 1984?

A

Rhind v Astbury Water Park- D was not liable as they didn’t know the object was there, meaning no duty was owed.

37
Q

What does s1(3)(b) of the OLA 1984 say?

A

D must know or have reasonable grounds to believe that the trespasser is in vicinity of the danger or that he may come into the vicinity of the danger. The occupier will not be liable if he had no reason to suspect the presence of a trespasser.

38
Q

Which case is an example of s1(3)(b) of the OLA 1984?

A

Higgs v Foster- D was not liable because they couldn’t have anticipated the officer’s presence there or in the vicinity of the pit.

39
Q

What does s1(3)(c) of the OLA 1984 say?

A

The risk must be one against which the occupier may be expected to offer the trespasser some protection. The occupier will not be liable if the trespasser is injured by an obvious danger, as he shouldn’t be expected to keep people safe from things they can keep safe from themselves.

40
Q

Which case is an example of s1(3)(c) of the OLA 1984?

A

Tomlinson v Congleton Borough Council- the court said that where the risk is obvious, D needed to take very little precautions to ensure C’s safety.

41
Q

What is the duty owed under the OLA 1984?

A

s1(4) says the occupier has a duty to take such care as is reasonable in the circumstances to see that the trespasser is not injured by reason of the danger.

42
Q

How do you decide if D acted reasonably under the OLA 1984?

A

Use the risk factors from negligence (without cases).

43
Q

What is the rule for child trespassers under the OLA 1984?

A

Keown v Coventry- the same rules apply to child trespassers as they do to adult trespassers, the duty owed does not change.

44
Q

What does s1(5) of the OLA 1984 say?

A

If D can show he has taken such steps as are reasonable in the circumstances to give a warning of the danger, or to discourage trespassers from taking the risk, this will be a complete defence.

45
Q

Which case is an example of the warning defence of the 1984 Act working?

A

Westwood v Post Office- the sign was clear enough to discourage unauthorised people from entering so D was not liable.

46
Q

What remedies can C claim under the OLA 1984?

A

s1(8) says the occupier can be ordered to pay damages for death or personal injuries but not property damage.

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