Occupier’s Liability

Question 1

What is the definition of Occupier’s liability?

Answer 1

It is the legal responsibility of an occupier for damage caused by the state of the premises.

Question 2

What are the 2 acts for OL and when do they apply?

Answer 2

• Occupier’s Liability Act (OLA) 1957 - lawful visitors

- Occupier’s Liability Act (OLA) 1984 - trespassers

Question 3

What is the first common element of OL?

Answer 3

D must be an occupier

Question 4

Who is an occupier?

Answer 4

Neither act defines an occupier.
Wheat v Lacon - Anyone who has enough control over the premises is an occupier. There can be multiple occupiers for one premises.

Question 5

What is the second common element for OL?

Answer 5

The D must be an occupier of a premises.

Question 6

What is meant by a premises?

Answer 6

Neither of the acts specifically defines a premises, but S1(3)(a) of the ‘57 Act refers to having occupation or control: of land and buildings, as well as a fixed or movable structure, including any vessel, vehicle or aircraft.
Always the ‘57 Act, even for trespassers

Question 7

What is the 3rd element for OLA ‘57

Answer 7

D must be a lawful visitor.

Question 8

Who is a lawful visitor?

Answer 8

1. Invitees - people who have been invited to the premises.
2. Licensees - people with express or implied permission to be on the premises
3. Anyone with contractual permission
4. Anyone with a statutory right of entry.

Question 9

What is the 4th element for OLA ‘57

Answer 9

When is the duty owed?

S2(1) says that an occupier of a premises owes the same duty, the common duty of care, to all visitors.

Question 10

What is the 5th element for OLA ‘57

Answer 10

What is the duty owed?

s2(2) - occupiers must take ‘reasonable’ care

Question 11

What did Laverton v Kiapasha Takeaway say?

Answer 11

The premises does not need to be completely safe, only what is reasonable.

Question 12

What did Dean v Debell say?

Answer 12

Everyday occurrences (such as tripping or slipping) are not the occupier’s fault. The occupier does not need to keep their premises in perfect condition, only an obligation to make it reasonably safe for visitors.

Question 13

What are the two types of people that have different duties owed to them under S2(2)?

Answer 13

• Children

- Tradespeople/Professional visitors

Question 14

What did s2(3)(a) say about the duty of care to a child?

Answer 14

An occupier must be prepared for children to be less careful than adults and so the premises must be reasonably safe for children of that age.

Question 15

What are the cases for a duty owed to a child?

Answer 15

Glasgow Corporation v Taylor - C, a 7 year old, ate some poisonous berries, in a public park, that were not fenced off, and died. The council (D) were liable.
Jolley v Sutton LBC - Children would want to play on the boat so D should have taken more care. D is liable for damage caused by allurements when it is foreseeable.
Phipps v Rochester - D is entitled to presume that parents will not let young children go to clearly unsafe places unaccompanied.

Question 16

What did s2(3)(b) say about the duty of care to a professional visitor?

Answer 16

A person carrying out a trade/calling should ‘appreciate and guard against any special risks ordinarily incident to it.’
This means professionals should be able to protect themselves from risks normally part of their job, so D needs to take less care.

Question 17

What is the case for a duty owed to a professional visitor?

Answer 17

Roles v Nathan - Two chimney sweeps died after inhaling carbon monoxide while cleaning the chimney. As the risk was part of their job, the sweeps should have been more aware of the danger.

Question 18

What are the possible defences to claims under the OLA ‘57?

Answer 18

• Volenti
• Contributory negligence
• Exclusion clauses
• Warnings
• Work done by independent contractors

Question 19

Discuss exclusion clauses

Answer 19

S2(1) - A residential occupier may exclude liability via a sign/ticket/term in a contract excluding liability.

Question 20

Discuss warnings

Answer 20

S2(4)(a) is a complete defence where D has given a warning that ‘in all the circumstances, would enable the visitor to be reasonably safe.’
This is similar to exclusion clauses but can be verbal or in writing and can be used to escape liability for personal injury or death.

Rae v Mars - D was unable to use the defence as the warning could not be seen in the dark.

Question 21

Discuss work done by independent contractors

Answer 21

S2(4)(b) - Occupier is not at fault for the work of an independent contractor if:

1. It was reasonable for the occupier to give the work to an independent contractor
2. D made sure the contractor hired is competent to carry out the task
3. The occupier must check the work has been done properly.

Haseldine v Daw - It was reasonable to give the work to the contractor as the average person wouldn’t know how to fix the lift.
Bottomley v TCC - Contractors were not competent
Woodward v Mayor of Hastings - D didn’t check the work even though it would have been easy.

Question 22

What are the possible remedies for claims under the OLA ‘57?

Answer 22

Damages for:

1. Death or personal injury
2. Property damage

Question 23

What case shows a duty not being owed to a child trespasser?

Answer 23

Addie v Dumbreck

Question 24

What case shows a duty being owed to a child trespasser?

Answer 24

Herrington v BRB

Question 25

What is the 3rd element of OLA ' 84?

Answer 25

There has to be an unlawful visitor/trespasser

Question 26

How does S1(1)(a) define an unlawful visitor?

Answer 26

Anyone who is not a lawful visitor.

Question 27

What is the 4th element of OLA ' 84?

Answer 27

When does the duty arise?

Question 28

What does S1(3) say about when D owes a duty?

Answer 28

Occupier only owes a duty if: (a) -he is aware of the danger or has reasonable grounds to believe it exists (b) -he knows or has grounds to believe that the other is in the vicinity of the danger or that he may come in to the vicinity of the danger (c) -the risk is one against which he may be expected to offer the other some protection

Question 29

Discuss S1(3)(a)

Answer 29

D is aware of the danger Rhind v Astbury Water Park - D was not liable as they were unaware of the objects in the water, no duty was owed.

Question 30

Discuss S1(3)(b)

Answer 30

D knows there is a chance V is in the vicinity of the danger. D will not be liable if he had no reason to suspect the presence of a trespasser. Higgs v Foster - D was not liable - They could not have predicted the officer's presence in the vicinity of the pit. When thinking if the occupier may have reason to suspect the presence of a trespasser: - Consider the location - Consider if someone has trespassed previously

Question 31

Discuss S1(3)(c)

Answer 31

D may be expected to offer some protection. If the trespasser is injured by an obvious injury, D will not be liable. Tomlinson v CBC - D put up warning signs, making the danger obvious. It was C's actions that caused the danger. For obvious danger, D needs to take little precautions.

Question 32

What is the 5th element of OLA ' 84?

Answer 32

What is the duty? S1(4) - The occupier has a duty to 'take such care as is reasonable in the circumstances to see that the trespasser is not injured by reason of the danger. The court will consider risk factors when deciding if D has acted reasonably. Children get no special protection, they are treated as adults. Keown v Coventry - The danger was obvious and a result of C's own acts, it did not matter if it was obvious to a child.

Question 33

What are the defences to a claim under OLA '84?

Answer 33

-Volenti -Contributory negligence -Warnings - S1(5) - if D can show he has taken reasonable steps to give a warning, this will be a complete defence. Westwood v Post Office - The sign was clear enough to discourage unauthorised people from entering.

Question 34

What are the possible remedies under OLA '84?

Answer 34

Ordered to pay damages for: -Death of personal injury NOT property damage.