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Tort Law > Occupiers' Liability: Lawful Visitors > Flashcards

Occupiers' Liability: Lawful Visitors Flashcards

1
Q

Who are occupiers? + case

A

Someone who had a degree of control over premises at the time of the incident: WHEAT v LACON 1966

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2
Q

Can control be shared with others? + case

A

Two or more people can share control, each are under commons duty of care towards lawful visitors: WHEAT v LACON 1966

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3
Q

What are the facts of WHEAT v LACON 1966?

A

C stayed at pub owed by D, a brewery company. Her husband died after falling down stairs. The handrail didn’t not go all they way down and there was no bulb in the light. The court held the landowners and manager as occupiers, both had a right to repair the light giving them sufficient control.

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4
Q

What are premises?

A

Under S.1(3)(a) of OLA 1957, “premises” cover:

  • Land
  • Permanent buildings
  • Fixed and moveable structures
  • Vessels, vehicles and aircraft
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5
Q

What is an occupiers liability in respect of adult visitors?

A

Under S.2(1) of OLA 1957 an occupier owes a lawful visitor common duty of care. Occupier is liable for breach of statutory duty. C can claim for damages for death, personal injury and/or damage to property.

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6
Q

What is an invitee?

A

Person invited to enter premises and have expressed permission to be there.

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7
Q

Who are licensees ?

A

Person who have express or implied permission to be there: LOWERY v WALKER 1911

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8
Q

What are the facts of LOWERY v WALKER 1911?

A

C was injured by a horse when using a short cut across D’s field. D had taken no steps to prevent members of the public using the short cut. D was aware the horse was dangerous. The courts held D was liable as a licence through repeated trespass and D’s failure to prevent.

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9
Q

What is contractual permission?

A

Person who bought permission to enter. Example: Paying guest at a hotel.

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10
Q

What is statutory rights of entry?

A

Permission given to those such as meter readers and police officers with search warrants.

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11
Q

Who does the 1957 act not protect?

A
  • Trespassers
  • Invitees who exceed their permission
  • Someone who is on D’s land involuntarily
  • Person exercising public or private right of way
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12
Q

What does the common duty of care cover?

A

It covers structural defects, dangers due to state of premises or things such as vicious jobs roaming free in D’s garden. OLA 57 covers acts or omissions associated with occupation of the premises which late cause harm.

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13
Q

What is the common duty of care in respect of specific risk?

A

It cannot last indefinitely where there could be other causes of danger: COLE v DAVID-GILBERT 2007

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14
Q

What are the facts of COLE v DAVID-GILBERT?

A

C was injured when she trapped her foot in a hole on the village green where the maypole had been in the past. Courts held the pole had been gone for 2 years, the common duty of care couldn’t last that long, the hole could have been reopened by a stranger.

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15
Q

How will the common duty of care be breached?

A

Under s.2(2) of the OLA 1957, an occupier will breach is they didn’t take such care in all the circumstances that is reasonable for the visitor using the premise for the purposes they are invited/permitted to be there for.

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16
Q

How safe does the premise have to be for adult visitors? + case

A

The premise must be reasonable safe but not completely safe: LAVERTON v KIAPASHA 2002

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17
Q

What are the facts of LAVERTON v KIAPASHA?

A

D owned a takeaway shop, C visited D’s shop early hours of a rainy morning. She was drunk and wearing ankle boots, she slipped and injured her ankle. The floor shop was covered with slip resistant tiles, it had mops and buckets in addition. There were no similar incidents and the floor couldn’t be mopped as it was full. D wasn’t liable as couldn’t prevent the floor becoming wet. D took reasonable care to ensure visitors were reasonably safe. C should have been aware of the risk.

18
Q

What must have D’s breach cause?

A

It must have caused damage suffered by C. C must prove injury/damage was reasonably foreseeable.

19
Q

What is an occupiers’ liability in respect of child visitors?

A

Common duty of care is owed, under s.2(3)(a) of OLA 1957 the occupier must prepare for children to be less careful than adults. Premise must be reasonably safe for child of that age.

20
Q

What should D expect in relation to child visitors?

A
  • What is not a danger to an adult may be to a child.
  • If an adult accompanies a young child, the danger would be obvious to the adult so there would not be a breach.
  • Where young children are unaccompanied and injured by the state of the premise, the courts are reluctant to find the occupier liable: PHIPPS v ROCHESTER CORPORATION 1955
21
Q

What are the facts of PHIPPS v ROCHESTER CORPORATION?

A

5 year old child was playing on grassland owner by the council with 7 year old sister. There was a deep trench dug for sewage. The boy fell down and broke his leg. Court found D not liable as prudent parents would not allow their young children to go there without adequate supervision.

22
Q

What should an occupier do in relation to allurement?

A

The occupier should guard against and kind of allurment drawing the child on to the land which places the child at risk of harm. The child has implied permission: GLASGOW CORPORATION v TAYLOR 1922

23
Q

What must have D’s breach have caused?

A

The damage suffered by the child visitor. Damage or injury must be reasonable foreseeable: JOLLEY v LONDON BOROUGH OF SUTTON

24
Q

What are the facts oF GLASGOW CORPORATION v TAYLOR?

A

7 year old boy ate poisonous berries from a botanic garden which opened to the public and died. The shrubs were not fenced off and no warning signs were present. D was liable as the berries were alluring to child rescue and D failed to ensure the premises were reasonably safe for a child of V’s age.

25
Q

What does an occupier owe to a tradesperson visitor?

A

common duty of care

26
Q

How would the occupier breach the duty?

A

By not taking such care as in all the circumstances is reasonable to see that the tradesperson will be reasonably safe in using the premises for the purposes they’re invited to be there.

27
Q

Which section relates to special risks?

A

S.2(3)(b) of OLA 1957

28
Q

What does S.2(3)(b) of OLA 1957 state?

A

An occupier may expect a tradesperson to appreciate and guard against special risks in relation to their trade: ROLES v NATHAN 1963

29
Q

What are the facts of ROLES v NATHAN?

A

Two chimney sweeps died after inhaling carbon monoxide fumes. The occupier advised the sweeps to turn the boiler off but they didn’t do so. The court held the occupier wasn’t liable as they should have guarded against danger associated with their trade.

30
Q

If the tradesperson is still injured despite taking normal safeguards, can the occupier be liable?

A

Yes: SALMON v SEAFARERS RESTAURANT 1983

31
Q

What are the facts of SALMON v SEAFARERS RESTAURANT 1983

A

D left chip shop fryer on and closed shop. This caused a fire. C was fireman who fell from ladder due to explosion while fighting fire. D was liable as C’s injuries were reasonable foreseeable even if C exercised all skill of their trade.

32
Q

How does the 1957 act allow occupiers to avoid liability for damage caused to a visitor by a danger on the premise caused by an independence contractor’s negligent work?

A

Under S.2(4)(b) of OLA 1957, occupier won’t breach if:

  • it was reasonable for occupier to give work to independent contractor: HASELDINE v DAW & SON 1941
  • The occupier took reasonable steps to choose a competent contractor. If the work involves a risk, the occupier is under duty to check competence of the contractor.
  • The occupier too reasonable steps to check the work had been done properly. The more complicated and the less skilled the occupier the more likely this condition will require and expert eg surveyor: WOODWARD v THE MAYOR OF HASTINGS
33
Q

Explain the defence of contributory negligence.

A
  • Partial defence
  • LAW REFORM ACT 1945
  • Damages can be reduced according to extent C contributed to their harm.
34
Q

Explain the defence of volenti.

A
  • Complete defence
  • S.2(5) OLA 1957
  • occupier has no liability to a visitor in respect of risks freely accepted by the visitor.
  • STAPLES v WEST DORSET DISTRICT COUNCIL 1995
35
Q

Facts of STAPLES v WEST DORSET DISTRICT COUNCIL

A

C fractured hip when slipped off harbour wall. Dangers of slipping on wet algae were obvious and known to C there for D didn’t breach duty and damages were refused.

36
Q

Explain defence of warnings to visitors

A
  • Complete defence
  • S.2(4) of OLA 1957
  • warning is ineffective unless it was enough to enable visitor to be reasonably safe on the premise
  • If the premises are dangerous or unusual in structure, rather than just warning sign, they should use barriers or additional warnings
  • RAE v MARS (UK) LTD 1990
37
Q

Facts of RAE v MARS

A

C was injured falling down 3 foot drop when entering unlit room at D’s factory. Courts said specific warning should be given.

38
Q

Explain the defence of exclusion clauses

A
  • partial or complete defence under S.2(1) of OLA 1957
  • occupier can restrict, modify or exclude duty by agreement or otherwise by
    - expressing terms in a contract
    - clear notice displayed at entrance
  • Exclusion against a child depends on age and ability to understand
  • a trader can’t exclude or limit liability for death or personal injury resulting from negligence: S.65 CONSUMER RIGHTS ACT 2015
  • UNFAIR CONTRACT TERMS ACT 1977 Provides protections against exclusion clauses in business to business contracts.
39
Q

Who do exclusion clauses not apply to?

A
  • Those entering under a statutory right of entry

- Strangers

40
Q

What can farmers do in relation to exclusion clauses?

A

Restrict or exclude liability to day trippers by contractual agreement or notice.

Tort Law (15 decks)

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