2.3 Occupiers' Liability Flashcards
(27 cards)
What is the difference between the Occupiers’ Liability Act 1957 (OLA 1957) and the Occupiers’ Liability Act 1984 (OLA 1984)?
OLA 1957 covers the duty owed in law for lawful visitors
OLA 1984 covers the duty owed to unlawful visitors, also called trespassers
What duty of care is owed by occupiers to lawful visitors and what is the scope of this duty?
The occupier owes a duty to all lawful visitors to keep them “reasonably safe” - delegable duty
Section 1(1) of the OLA 1957 Act regulates scope of duty:
“The duty which an occupier of premises owes to his visitors is in respect of dangers due to the state of the premises or to things done or omitted to be done on them.”
What constitutes an ‘occupier’?
No definition contained in OLA 1957
s1(2) refers to a ‘person’s occupation or control of the premises’
What is the test determined by the court to determine who is an occupier?
It is necessary to look at who has control of the premises. It is possible to be an occupier without having physical possession of the property.
What is meant by ‘premises’?
OLA 1957 s1(3)(a): ‘any fixed or movable structure, including any vessel, vehicle or aircraft’
Broad view undertaken by the courts - can include things on the structure (e.g. ladder, derelict boat, splat wall, inflatable sculpture)
What is meant by a ‘lawful visitor’?
A person who has permission from the occupier, or who has a statutory right of entry
N.B: permission can be limited, either in time or to a part of the premises
What is meant by a ‘trespasser’?
A person who has not be granted permission by the occupier to be on the premises
Explain the duty of care owed by visitors under OLA 1957 (statutory provision)
Duty of care under OLA 1957:
Section 2(2) states that the duty of care is:
“To take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”
What is the limit of the common duty of care in OLA 1957?
Duty owed only applies to:
- dangers due to the state of the premises or
- things done or omitted to be done on them [premises]
How is ‘reasonable care’ determined by the court for OLA 1957?
Court will take into what is reasonable in all the circumstances:
likelihood of harm, nature of the danger, type of visitor, their purpose for visiting, seriousness and longevity of the risk, cost of prevention and whether there were any warning signs
What is the special duty of care owed to children by occupiers?
Children under s2(3)(a):
An occupier must be prepared for children to be less careful than adults
Raises standard of care level for breach
What should be considered in relation to skilled visitors?
An occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it
Lowers standard of care level for breach
What should an occupier do to ensure that they adhere to their duty to lawful visitors to keep them reasonably safe?
Dangerous areas: Occupier is expected to prevent the visitor from visiting the area or to put out a notice. The idea behind a notice is to enable the visitor to be reasonably safe.
An occupier is not expected to take precautions if there is an obvious danger
When can an occupier discharge its duty of care regarding work done by independent contractors?
The occupier will not be liable for the faulty execution of independent contractors if they have discharged their duty of care. Three requirements are that the occupier must have:
1) Entrusted the work to a competent contractor
2) Taken reasonable steps to ensure the contractor was competent
3) Taken reasonable care to ensure the work was properly done
Work must be of ‘construction, maintenance or repair’.
When is a duty owed in OLA 1984 to trespassers?
A duty of care does not arise automatically under OLA 1984.
Section 1(3) outlines the 3 conditions that must be satisfied:
1) [O is aware of danger] The occupier is aware of the danger or has reasonable grounds to believe that it exists
2) [O knows or believes that P is in vicinity of danger] The occupier knows, or has reasonable grounds to believe, that someone is in the vicinity of the danger concerned or that they may come into the vicinity of the danger
3) [O was reasonably expected to offer P protection from risk] The risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer the non-visitor some protection
OBJECTIVE TEST - duty may be discharged by placing a warning
What type of damage is covered under OLA 1984?
Risk of injury must be due to the state of the premises.
Type of damage covered under OLA 1984: personal injury (including death) only.
NOT property damage!
What type of damage is covered under OLA 1957?
Personal injury (including death)
Property damage
How do warnings allow an occupier to discharge its duty of care?
Provision gives some protection for occupiers where claimants have been warned about the danger.
NOTE: However, the warning will not absolve an occupier from liability unless in all the circumstances it was enough to enable the visitor to be reasonably safe.
Was the warning sufficient to enable the visitor to be reasonably safe?
If the danger is not obvious, the occupier will be held liable if they fail to adequately warn visitors
What factors will the court consider when dealing with warning signs and risk posed?
Nature of warning - Is the warning clear? Does it accurately reflect the risk posed?
Nature of danger - Is the danger obvious? Are there hidden dangers?
Nature of visitor - Is the visitor a child? Is more than a sign needed?
How is ‘reasonable care’ determined by the court for OLA 1984?
Not as onerous as under OLA 1957. Occupier only needs to take ‘such care as is reasonable in all the circumstances;’ this includes factors such as:
The type of risk involved - was the risk obvious or a hidden risk?
The type of trespasser: children? Vulnerable adults?
Whether the risk could have been reduced
When can an occupier defend a claim brought under OLA 1954 and 1984?
Claim can be defended if:
1) Visitor / trespasser consented to the risk
2) Liability is excluded, restricted or modified under the Acts
3) There were warning signs alerting visitors / trespassers to the danger
4) Visitor / trespasser contributed to the injury sustained
Explain how an occupier can demonstrate the defence of Volenti (consent)
OLA 1957: Defence applies if visitor knew, understood and accepted the precise risk
OLA 1984: Same as above
Explain how an occupier can demonstrate the defence of restricting / modifying / excluding duty
OLA 1957: An occupier can restrict, extend, modify or exclude their liability. Exclusion notice must be brought to the claimant’s attention and the wording of the notice must cover the loss suffered.
OLA 1984: Same as above
Explain how an occupier can demonstrate the defence of warnings
OLA 1957: Warning must enable the visitor in ‘all the circumstances’ to be safe
OLA 1984: Occupier may discharge their duty to trespassers by giving warnings to discourage entry to trespassers. The occupier only needs to take ‘reasonable steps’ to alert the claimant to danger
