Lawful Visitor - Occupiers Liability Act 1957 Flashcards
(11 cards)
Describe
Occupiers Liability for Lawful Visitors
S.2(1), S,2(2), Laverton v Kiapasha Takeaway Supreme, S.2(3)(b),
Dean and Chapter of Rochester Cathdedral v Debell, Apart of OL57
- Lawful Visitors can be, an invitee, licensee, someone with a contractual or legal right to enter.
S.2(1) - Occupier will owe a general duty of care to all lawful visitor. S.2(2) - Occupier should see that the visitor will be reasonable safe in the premise for the purpose they are there for. S.2(3)(b) - Occupier can expect the visitor to appreciate and guard against any specific risks. Laverton v Kiapasha Takeaway Supreme - Occupier doesn’t need to make premises completely safe with no chance of injury. Dean and Chapter of Rochester Cathedral v Debell - No common duty to prevent everyday trips or falls unless it creates a real source of danger.
Describe
Child Visitors
S.2(3)(a), Taylor v Glasgow Corporations, Bourne Leisure v Marsden
Apart of OL57
S.2(3)(A) - Occupier must be prepared for children to be less careful than adults and as a result, the premise must be reasonably safe for a child of that age. Taylor v Glasgow Corporations - Occupiers must expect children to be less careful than adults, and protect against hidden dangerous allurements. Bourne Leisure v Marsden - Parents will be expected to be responsible for small children and to be aware of obvious risks.
Describe
Trades Person definition
Apart of OL57
Someone who provides goods or services to occupier.
Describe
Tradesperson is injured
Roles v Nathan
Apart of OL57
- Tradesperson not allowed to claim if they acted recklessly without care.
Roles v Nathan - Tradesperson must guard themselves at risk of their trade especially if have been warned of them.
Describe
Lawful Visitor injured due to Tradesperson
S.2(4)(b)
Apart of OL57
- Defence for the occupier if
S.2(4)(b) - 1) Occupier acted reasonable in entrusting the work to the tradesperson 2) The tradesperson is competent to carry out the work 3) Occupier took reasonable steps, if could, to check work had been properly carried out.
Describe
Defences for occupier and remedy for C.
S.2(4)(a)
Apart of OL57
Warning Sign
Visitor must see and understand the sign for it to be effective, not needed for obvious danger
Full defence
S.2(4)(a) - A warning sign can be a full defence if enough to keep visitor reasonable safe
Exclusion Clauses
Occupier can limit or exclude liability by putting up and exclusion notice which is a full defence.
Contrib Negligence
Compensatory damage can be reduced to reflect level C contributed.
Volenti
Full defence is C consented to risk of injury, such as by ignoring a warning sign.
The remedy for C is, compensatory damage for person and property damage.
Apply to an Exam Question
Flip
Apart of OL57
Why is the C a lawful visitor?
Has the D made the premise reasonable safe for all lawful visitors? State they don’t need to make it completely safe.
(IF APPLICABLE - Children)
Is premise reasonable safe for a child of that age?
If there is a parent. Have they took some responsibly over watching the child or stopping them?
If there is an allurement, has occupier taken measures to guard children of them?
(IF APPLICABLE - Tradesperson)
Are they aware of the risks of their job?
Have they guarded against these risks?
Were they negligent in their actions?
——
Did the occupier act reasonably entrusting the work to the tradesperson?
Is the tradesperson competent to carry out the work?
Did occupier take reasonable steps to ensure to check work has been properly carried out, to best of their ability?
Defences
Do any defences apply?
Did lawful visitor consent to harm or injury?
Did they contribute to the harm or injury, to what extent?
Did the occupier have a warning sign or exclusionary clause put up?
Remedies
What can C claim for, and is this allowed?
Conclude
Evaluate
Provides Justice
- Provides justice for both C and D.
- What did the previous law have that was confusing? What did the new law change?
- How is rule of law upheld? Is law clear and consistent?
Apart of OL 57
- Multiple confusing duties that were hard for both occupiers and citizens to understand. Now with new law, there is one test and a common duty for all lawful visitors.
- This uphold rule of law, as this new law is clear and easily understandable by lay people, ensuring everyone knows the law and can follow it and occupiers know what to protect against, applied consistently as for all cases
Evaluate
Lack of Statutory Definitions
- Despite an act being made, there is lack of definitions.
- Is there a definition for occupier? What does the interpretation lead to? Rule of law?
- Is there a premise definition? What is the problem with it? Why is this bad?
Apart of OL57
- No definition of occupier so there is a wide interpretation by judges as to who the occupier can be, which can get confusing for lay people and is complex which doesn’t follow the rule of law.
- There is the definition of premise, however it is widely interpreted and it includes ladders or lifts. This is confusing and extends liability and is also illogical at what gets classed as premise which is unfair for D
Evaluate
Easy to avoid liability
- Liability can be easily avoided
- What kind of defences are there in the act? How do these affect liability? Why is this fair for the occupier and what does it discourage?
- What does this mean for compensation for lawful visitors? How much protection does D? Does C get any justice?
Apart of OL57
- There is a range of defences like exclusion clauses which can reduce or completely exclude liability. This is fair on the occupier as it shows they prepared for all the risks and took responsibility upon themselves to mitigate the risk and can also discourage compensation culture.
- Lawful visitors can get reduced or no compensation. This gives too much protection for the defendant and does not enforce justice as the C, even if they have a life changing illness will not get compensation.
Evaluate
Rules are unfair.
- Occupier has an unfair responsibility for allurements.
- What is an occupier expected to protect against? Is there a definition for allurements? How are these cases decided? Why is this responsibility unfair?
- Why can this be fair also? What should parents have been doing? What does this discourage? And ensured a higher standard for? However how can this be confusing? How is this decided in cases?
Apart of OL57
- Allurements, there is no definition for allurements in the act, so on a case by case basis these allurements are decided and defined. This is unfair as the D can’t protect against something they never knew existed.
- Parents also responsible making occupier not liable, as parents should be watching over their kid, discourages blame culture, and higher standards. Confusing how old or young parental responsibility starts or ends, decided on a case by case basis. Which is inconsistent.
