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Tort Law > EXAM NOTES - Occupiers Liability > Flashcards

EXAM NOTES - Occupiers Liability Flashcards

1
Q

What are the two crucial pieces of legislation in occupiers’ liability?

A

Occupiers Liability Act 1957

Occupiers Liability Act 1984

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2
Q

which OLA act is it better to do first and why?

A

OLA 1957 easier to find a claim for visitors than trespassers

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3
Q

Sum up the duty in OLA 1957

A

The occupier of premises owes a duty to all visitors

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4
Q

who is the occupier?

A

Wheat v E. Lacon the person with sufficient degree of control over the premises

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5
Q

explain the definition of an occupier

A

Wheat v E Lacon

1) if the landlord does not live in the property the tenant is an occupier
2) if the landlord does not live in the property and it is empty he is still responsible Harris v Birkenhead Corp
3) if the landlord retains some party of the premises eg hallways they occupy them Maloney v Lambeth BC
4) if the landlord issues licenses only they remain an occupier Wheat v E Lacon

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6
Q

what is the general rule about landlords and independent contractors in terms of the occupier?

A
  • the landlord remains generally responsible even if there is an IC too
  • but ICs can be occupiers eg AMF International v Magnet Bowling - L and IC both occupy
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7
Q

Can you have multiple occupiers?

A

yes - Collier v Anglian Water - LA and water board both occupiers

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8
Q

what are premises under the OLA 1957

A

more than just land and buildings

  • s1(3)(a) OLA 1957 “any fixed or moveable structure”
  • Wheeler v Copas a ladder was part of the premises
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9
Q

who is a visitor under OLA 1957

A

people lawfully on the property s1(2)

  • by express permission or license eg guests
  • by implied permission
  • by lawful authority
  • by contractual permission s5(1)
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10
Q

explain express permission to be on the property under OLA 1957

A

1) restricted by area and the guest becomes a trespasser when they go beyond it eg Pearson v Coleman Bros child not told to not enter hte animal enclosure
2) restricted by time Stone v Taffe
3) restricted by purpose R v Smith & Jones you are only treated as a visitor as long as you’re doing what you were invited onto the land for

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11
Q

explain implied permission to be on the property under OLA 1957

A

eg Lowery v Walker - D had not prevented the public walking across his field for decades so they had implied permission to be there

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12
Q

what is lawful authority to be on someone’s property and how is it limited

A

s2(6) OLA 1957 eg for policeman and firemen etc but Higgs v Foster policeman had no reason to go onto the land so was a trespasser when injured

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13
Q

what is the duty owed under the OLA 1957?

A

s2(1) “common duty of care” to all visitors

s2(2) OLA 1957 standard of care - reasonable in all circumstances to keep the visitor safe for the purposes of his visit

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14
Q

give examples of cases involving the standard of care under OLA 1957

A
  • Latimer v AEC: D did everything they could to avoid injuries short of closing the factory
  • Laverton v Kiapasha: D had taken reasonable steps to ensure visitors would not slip over
  • Poppleton v Trustees of Portsmouth Youth Activities Committee: D had taken all reasonable precautions and shouldn’t be liable just because C chose to do a dangerous activity
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15
Q

how is the OLA 1957 breached?

A 
Did D act as the reasonable occupier would?
- how serious was the risk created by d?
- how foreseeable was the risk?
- how avoidable was the risk?
- what has D done to avoid the risk?
etc
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16
Q

How does the OLA 1957 relate to children?

A

s2(3) children less careful than adults

  • therefore higher standard of care owed to them: Jolley v London Borough of Sutton - 14 year old children playing with a boat. D is liable if the particular harm is foreseeable, no need to foresee manner of harm
  • doctrine of allurement
17
Q

what is the doctrine of allurement?

A
  • children attracted to dangerous things so the occupier should take necessary precautions
  • Glasgow Corporation v Taylor: poisonous berries were an allurement which should have been fenced off
  • Perry v Butlins Holiday World: if children are regularly in the area greater care will be appropriate
  • occupier though has right to assume children will be supervised Phipps v Rochester Corporation
18
Q

what is the rule for experts and breach in the OLA 1957

A

OLA 1957 ss2(3)(b) not a breach for occupiers to expect specialists to understand the dangers of the job they are doing
- eg Roles v Nathan chimney sweeps killed while working

19
Q

what is the rule for independent contractors, the OLA 1957 and breach

A

OLA 1957 s2(4)(b) independent contractor takes liability for the breach if the occupier has:
1. acted reasonably in all circumstances
2. checked the IC was competent, and
3. ensured the work was done properly
- and if the work being done involves a degree of technical skill Woodward v Mayor of Hastings
- Haseldine v Daw - lift maintenance
(- IC might have sufficient control in the areas it is working in)

20
Q

What does the OLA 1957 say about warnings?

A

1) s2(4)(a) adequate warnings can mean the occupier has discharged their duty of care
2) Roles v Nathan chimney sweeps warned
3) BUT warning must be enough to enable the visitor to be safe eg bridge analogy in Roles v Nathan
4) clear danger = less need for clear warning Staples v West Dorset DC slippery sea wall

21
Q

What is the rule for factual causation and the OLA 1957?

A

normal rules: but for test

  • Cork v Kirby
  • Barnett v Chelsea and Kensington HMC
  • Apportionment eg Fitzgerald v Lane and Patel
22
Q

What is the rule for legal causation and the OLA 1957

A

NAI can break the chain of causation so long as they are unforeseeable

  • acts of god
  • acts of third party
  • acts of claimant
23
Q

What defences are there to the OLA 1957

A

volenti s2(1) and (5)

  • a warning notice must be sufficient to the risk to equate to consent on C’s part White v Blackmore
  • contributory negligence
24
Q

can an occupier of business premises exclude their liability?

A
  • s2(1) OLA 1957 business occupier can restrict subject to UCTA 1977
  • s2(1) UCTA 1977 no restriction in death/PI
  • s2(2) and s11 UCTA 1977 Liability for damage to property can be excluded, but it will be subject to the test of reasonableness
25
Q

what case gives the duty owed to trespassers?

A

BRB v Herrington duty of “common sense and common humanity

26
Q

define a trespasser

A

Robert Addie v Dumbreck

1) someone who goes onto the premises without the owner’s permission
2) and if the owner knew he would object to it

27
Q

when is a duty owed under the OLA 1984

A

s1(3)(a-c) OLA 1984: DPP Danger Proximity Precautions

  1. occupier is (or has reasonable grounds to be) aware of the DANGER, and
  2. occupier knows (or has reasonable grounds to know) a trespasser is in the VICINITY of the danger or could come into it
  3. it is reasonable for the occupier to PROTECT the trespasser from the risk
28
Q

what duty is owed under the OLA 1984

A

if s1(3) satisfied then s1(4) duty to take such care as is reasonable to ensure the entrant does not suffer injury - PI only (s1(9)) OLA 1984

29
Q

how is breached determined under the OLA 1984

A
  • same as OLA 1957 - considering all circumstances but easier to satisfy
  • eg Swain v Natui Ram Puri - no breach because no previous trespassing there and sufficient precautions
  • Young v Kent CC - breach because known trespassing on the roof and no precautions
  • but easier to avoid a breach through providing sufficient warning
30
Q

what defences are there under the OLA 1984

A

1) can give reasonable warning in appropriate cases s1(5) OLA 1984 and if so can use volenti s1(6) OLA 1984
- Tomlinson v Congleton BC signs placed around a lake warned of danger
- Simms v Leigh RFC - consented to risks in rugby

2) Can also rely on contributory negligence of the trespasser eg Revill v Newbury damages reduced by two thirds for a trespasser shot by the occupier

31
Q

What is the general standard of care under the OLA 1957

A
  • to act as the reasonable occupier would
32
Q

can an occupier of private premises exclude liability to visitors?

A

yes: Under s2(1) OLA 1957, an occupier of private premises can exclude his duty of care

  • Ashdown v Samuel Williams - the occupier excluded liability by use of a notice
  • White v Blackmore exclusion effective at race event
33
Q

how is contributory negligence judged for children?

A

with reference to the reasonable child of the same age Yachuk v Oliver Blais

34
Q

How do courts feel about child trespassers?

A
  • generally do not count them as trespassers BRB v Herrington
  • often use doctrine of implied permission Pearson v Coleman Brothers to make them visitors
  • or doctrine of common humanity BRB v Herrington to protect them

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