8. Occupiers' Liability

Question 1

Regarding the premises, to what aspect do the relevant Occupiers’ Liability Acts apply?

Answer 1

The condition of the premises, not activities carried out on the premises

Question 2

What are the two Acts and what do they deal with?

Answer 2

• Occupiers’ Liability Act 1957 deals with an occupier’s duty to visitors
• Occupiers’ Liability Act 1984 deals with an occupier’s duty to persons other than visitors

Question 3

Definition of “visitor” under Acts

Answer 3

Person occupier has invited or permitted to be on the premises

Question 4

Under the 1957 Act, what does a person become if they enter the premises as a lawful visitor but exceed the scope of that permission?

Answer 4

Trespasser

Question 5

Definition of “occupier” under the Acts

Answer 5

The person exercising a sufficient degree of control over the premises to allow and prevent others from entering.

Occupier need not be owner.
Control need not be exclusive - same premise = multiple “occupiers”

Question 6

In a landlord-tenant situation, who is generally the occupier and what are some exceptions to this?

Answer 6

The tenant is generally the occupier, except for parts which have been excluded from the lease, e.g. common areas (ie. hallways, staircase)

Question 7

What is a premises?

Answer 7

Land, and any buildings on the land.

The 1957 Act (visitors) also extends to any fixed or moveable structure, e.g. scaffolding or ladders.

Question 8

What is the duty of care owed by an occupier to visitors under the 1957 Act?

Answer 8

Duty to take reasonable care so the visitor is reasonably safe in using the premises for the purpose they have been invited or permitted

Question 9

Does an occupier’s duty under the 1957 Act also apply to a visitor’s property?

Answer 9

Yes - claim for both property damage and personal injury

Question 10

What two factors will the court consider when determining whether the occupier exercised reasonable care?

Answer 10

1. Magnitude of the risk
2. Practicability of taking precautions

Question 11

Under the 1957 Act, how should an occupier treat children?

Answer 11

Expect children to be less careful than adults, not foresee certain dangers.

Question 12

Under the 1957 Act, how should an occupier reasonably expect skilled workers to act?

Answer 12

Reasonable expectation = in exercising their specific calling they will appreciate + guard against any risks incidental it.

Question 13

How may an occupier’s duty of care be discharged via placement of warning signs under 1957 Act?

Answer 13

Show that warning was sufficient to enable visitor to be reasonably safe.
- warning = warn of specific danger or harm and consider type of visitor (ie child/adult).

Question 14

Two conditions for occupier not be liable for injury caused by work undertaken by an independent contractor

Answer 14

1. Occupier acted reasonably in choosing an independent contractor, AND
2. Occupier took reasonable steps to be satisfied that the contractor was competent and the work was properly done

Question 15

After a visitor establishes that the occupier breached their duty, what must they do?

Answer 15

Establish causation in the usual way

Question 16

Under the 1957 Act, is the occupier allowed to exclude duty?

Answer 16

Yes - albeit some limitations apply to business occupiers

Question 17

Although liability can be excluded under the 1957 Act

If an occupier is acting in the course of business, what limitations are placed on their ability to exclude liability under the 1957 Act?

Answer 17

Under UCTA 1977:
1. Cannot exclude liability for death or personal injury of a non-consumer visitor
2. Liability for other damage can only be excluded if reasonable

Question 18

Where an occupier is free to exclude liability, through what means can they achieve this?

Answer 18

Through contract, or an effective non-contractual notice

Question 19

What two things are required of a contractual clause or notice excluding liability under the 1954 Act to be effective?

Answer 19

Exclusion must:
1. Cover the damage in question
2. Have been adequately brought to claimant’s attention

Question 20

When must an exclusion be adequately brought to the claimant’s attention where it is (1) by contract and (2) by notice?

Answer 20

1. Incorporated into the contract and brought to visitor’s attention of the before contract is made
2. Notice must be before visitor encounters the risk for which liability is excluded

Question 21

When liability is to be excluded by notice under the 1954 Act, is it necessary to show that the visitor was actually aware?

Answer 21

No, as long as reasonable steps were taken to bring it to the visitor’s attention, the fact they didn’t look at it or missed it does not preclude notice being effective

Question 22

What is a trespasser under the Occupiers’ Liability Act 1984?

Answer 22

Someone who comes onto premises without permission or who enters with permission and exceeds the scope of such

Question 23

What are the definitions of occupier and premises under the 1984 Act?

Answer 23

Same as under the 1957 Act.

Occupier: Person who has control over the premises, who need not be the owner
Premises: Land, and any buildings on the land, minus the fixed/moveable option under the 1954 Act

Question 24

What three conditions must be met before a duty is owed to a trespasser under the 1984 Act?

Answer 24

1. Occupier aware of danger, or ought to be
2. Occupier aware that trespasser may encounter the danger, or ought to be aware, and
3. The danger is one against which it would be reasonable to expect the occupier to offer protection

Question 25

Where a duty is owed to a trespasser under the 1984 Act, what is that duty?

Answer 25

Duty to take care so that trespasser is not injured by the danger

Question 26

Does the duty owed to a trespasser under the 1984 Act extend to property?

Answer 26

No

Question 27

What is the standard of care under the 1984 Act?

Answer 27

The same as negligence and the 1954 Act, so the court will have regard to the magnitude of the risk and the practicability of taking precautions

Question 28

In what two ways may an occupier discharge their duty under the 1984 Act?

Answer 28

By taking steps to:

1. Give a warning of the danger, or
2. Discourage trespasser from incurring the risk

Question 29

Can a duty be excluded under the 1984 Act?

Answer 29

The 1984 Act is silent as to exclusion so it is not clear whether duty can be excluded in the same way as under the 1954 Act

Question 30

What two negligence defences are available to an occupier under both the 1957 and 1984 Act?

Answer 30

1. Volenti non fit injuria
2. Contributory negligence

Question 31

Can permission to enter premises be implied from the occupier’s conduct?

Answer 31

Yes

Question 32

Implied permission?
Edward v Railways Executive

Answer 32

no implied permission.
- even if spot in a railway’s fence was used as a regular shortcut = its repeated repairs every time it was damages illustrated a clear intention to keep people out.

• Fence was in good repair at time at time claimant trespasser unto railway.

Question 33

What duty of care is owed towards vulnerable visitors under the OLA 1957?

Answer 33

where occupier has full knowlegde of the vulnerability, they will be expected to take steps to guard against it.

ie. Pollock v Cahill - open window led to blind visitor falling out.

Question 34

In relation to an occupiers’ duty towards visitor children, how might age be of relevance?

Answer 34

• special duty of care is owed to children, and depending on the type of danger and age of child, might be expected to take additional precautions.
• Age is key factor, and where child is very young, it is generally reasonable to expect a form of parental supervision.
• if there is allurement of the land, the occupier is expected to take greater care.

Question 35

What three requirements must be satisfied for an occupier to discharge their duty of care under the OLA 1957 for negligence caused by an independent contractor?

Answer 35

1) must have entrusted the work to a competent contractor
2) taken reasonable steps to ensure the contractor was competent; and
3) taken reasonable care to ensure the work was properly done.

• more complex the work, more likely DoC = discharged as occupier cannot reasonably be expected to check over their work (ie. Haseldine v Daw & Son - elevator case)

Question 36

Does an occupier owe an automatic duty of care to both trespassers and visitors alike?

Answer 36

no, duty of care needs to be satisfied under the OLA 1984.

Question 37

Does an occupier owe a duty of care towards any visitors willingly accepted by their visitors?

Answer 37

No!
- provided risk is an obvious one, meaning that a warning sign would not even be required to alert visitors against it.

Question 38

When would an occupier be expected to place a warning against the risk of danger?

Answer 38

where the danger is not obvious

Question 39

Beyond being aware as to the existence of the danger, what is required for an occupier to owe a duty towards a trespasser under the OLA 1984?

Answer 39

• must know or have reasonable ground to believe trespasser is in the vicinity of danger.

ie. not liable if occupier had no reason to believe trespassers would come into their land.

Question 40

What four defences might an occupier rely on?

Answer 40

• contributory negligence
• consent
• restriction/exclusion of liability for particular loss.
• placing a warning sign

Question 41

How does an occupier’s duty to warn a visitor versus a trespasser differ?

Answer 41

• placement of a warning sign must enable visitors in all circumstances to keep safe. Higher standard of care expected.
• cf. trespassers, only need to take ‘reasonable steps’ to alert to danger.

Question 42

What damage can an occupier not exclude liability for?

Answer 42

death and personal injury
- other forms of damage are subject to ‘reasonableness’ or ‘fairness’ test depending on whether we are concerned with B2B or B2C context.