Occupiers Liability

Question 1

What is it regarding?

Answer 1

Occupiers Liability concerns the liability of an ‘occupier’ of land for the claimant’s injury, damage or loss suffered caused by the state of the occupier’s premises.

Question 2

What two statutes govern Occupiers Liability?

Answer 2

Occupiers Liability Act 1957

Occupiers Liability Act 1984

Question 3

Where does basic liability arise?

Answer 3

The basic liability arises from the loss or injury caused by the ‘state of the premises.’

Question 4

Where could loss or damages not relating to the ‘state of the premises’ be claimed under?

Answer 4

Loss or damage arising other than because of the state of the premises should be claimed under the general rules of negligence if possibly.

Question 5

Give a case to explain this ‘state of the premises’ concept.

Answer 5

Ogwo v Taylor [1987] – There was no liability under the Act when a fireman was injured in a fire on the defendant’s premises. The fire did not result from the state of the premises, so the liability was in negligence.

Question 6

Does the Occupiers’ Liability Act 1957 define an occupier?

Answer 6

No.

Question 7

What does the Occupiers’ Liability Act 1957 say about a occupier?

Answer 7

Under Section 1(2) it merely states that the rules apply ‘in consequence of a person’s occupation or control of premises…’

Question 8

Therefore, where did the test for an occupier come from? What does it say?

Answer 8

Common law-An occupier is a person who is in control of the premises at the time the incident occurred – Wheat v E Lacon.

Question 9

Can there be more than one occupier?

Answer 9

Can be more than one occupier at any time – Collier v Anglian Water Authority.

Question 10

Does an occupier need to be in full occupation of the property?

Answer 10

The occupier does not need to be in full occupation of the property as long as they are in control of the premises at the time the incident occurs – Harris v Birkenhead Corporation

Question 11

What does Section 1(3)(a) of the OLA 1957 define a premises as?

Answer 11

Section 1(3)(a) of the Occupiers’ Liability Act 1957 defines premises as a fixed or moveable structure, including ‘any vessel, vehicle and aircraft…’

Question 12

Lift?

Answer 12

Haseldine v Daw

Question 13

Ship in a dry dock?

Answer 13

London Graving Dock v Horton

Question 14

Ladder?

Answer 14

Wheeler v Copas

Question 15

Vehicles?

Answer 15

Hartwell v Grayson

Question 16

What is the issue with that Statutory definition?

Answer 16

This is very vague and does not give a full meaning as to the term premises.

Question 17

What does case law provide for premises?

Answer 17

Wide definition to allow for all types of premises to be considered.

Question 18

What section of the OLA 1957 states the duty of care for lawful visitors?

Answer 18

Section 2(1)
“…an occupier owes the same duty, the common duty of care, to all his visitors except insofar as he is free to do and does extend, restrict modify or exclude his duty to any visitors by agreement or otherwise.”

Question 19

What is the standard of care for lawful visitors?

Answer 19

The standard of care expected of an occupier is the same as that in an ordinary claim in Negligence, i.e. an occupier must reach the standard of the reasonable occupier and will, therefore, only be liable if at fault (negligence).
Thus, the occupier is merely obliged to guard against what would be foreseeable.

Question 20

Given the similarity with a claim in negligence, will a court consider similar factors when deciding whether the common duty of care has been breached.

Answer 20

Yes.

Question 21

Where nature of the duty contained?

Answer 21

The nature of the duty is contained under S. 2(2) OLA 1957. The occupier will need to…
“…take such care as in all the circumstances what is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited…to be there…”

Question 22

When does the duty in OLA 57 only apply?

Answer 22

The duty in the 1957 Act only applies if the visitor is carrying out activities that are authorized within the terms of the visit.

the claimant is only protected if they are on the premises for the purpose of their visit.

Question 23

If the visitor strays from their authorized terms of visit where might they be protected?

Answer 23

So, if a visitor strays he may lose protection under the 1957, although the 1984 Act may still apply.

Question 24

Is the duty to keep the visitors safe or maintain safe premises?

Give a case example.

Answer 24

The duty is to keep the visitor safe, not necessarily to maintain safe premises.
If the latter were the case it would make industry unworkable.

Laverton v Kiapasha Takeaway Supreme (2002)

Question 25

Explain lawful visitors and accidents and give a case example.

Answer 25

The duty, however, does not extend to liability for pure accident and a duty in respect of a specific risk cannot last indefinitely where there could be other cases of damage. Cole v Davies-Gilbert & The Royal British Legion [2007] Maypole-2 years after fete, someone else had opened the hole-stranger, pure accident.

Question 26

Name the types of lawful vistors.

Answer 26

``` A person who has permission to be on the premises. Invitee Licensee Right conferred in law. Contractual right. ```

Question 27

Who is a invitee?

Answer 27

Invitee has expressed permission from the occupier to access the premises for a particular purpose, e.g. invite a friend round to have dinner.

Question 28

Who is a licensee?

Answer 28

Licensee - can have an expressed licence or implied licence, e.g. implied licence to go to a supermarket to do your shopping.

Question 29

What happens if a lawful visitor exceeds the permission granted?

Answer 29

If the visitor acts beyond the permission granted to them they will no longer be a lawful visitor and will not be protected under the OLA 1957. If the visitor exceeds the purpose of their visit they will become trespassers.

Question 30

Is there a duty owed to trespassers under the OLA 57? Where might they be entitled to protection?

Answer 30

No duty is owed to trespassers under the 1957 Act. | May be entitled to protection under the Occupiers Liability Act 1984 .

Question 31

What is the rule for children and what section is to governed by?

Answer 31

Under S. 2(3)(a) the occupier must be prepared for children to be less careful than adults and thus the premises must be reasonably safe for a child of the relevant age. Therefore, for children a higher duty of care will be owed, but this duty will be measured subjectively based on the child’s age and other relevant factors.

Question 32

Give a case for special victors-children.

Answer 32

Moloney v Lambeth LBC (1966) - gap railings, adult not able to fit.

Question 33

Children- special visitors- explain appreciating risks and allurement. Give a case example. Do children appreciate risks like adults? Are they attracted to danger? What should occupiers do regarding allurement?

Answer 33

Similarly, children are unlikely to appreciate the risks that adults would and might even be attracted to the danger. Occupiers should guard against any kind of allurement which places a child visitor at risk of harm. Glasgow Corporation v Taylor [1922]

Question 34

Is the existence of allurement on its own sufficient ground for liability? Give a case example.

Answer 34

No. Liddle v Yorkshire (North Riding) County Council [1944]

Question 35

What does the damage or injury suffered have to be for a child? Give a case example.

Answer 35

The damage or injury suffered by the child must also be foreseeable. Even if the allurement exists, there will be no liability on the occupier if the damage or injury is not foreseeable. Jolley v Sutton [2000].

Question 36

What will the courts sometimes take the view for young children and what does this mean? Give a case example.

Answer 36

any case, the courts will sometimes take the view that very young children should be under the supervision of a parent or other adult. In this case the occupier might find that he or she is relieved of liability. Phipps v Rochester Corporation [1955]

Question 37

If a child is injured because of the occupier’s negligence and partly due to their guardian’s negligence what can happen?

Answer 37

Both the occupier and the guardian could be jointly liable.

Question 38

In the case of joint liability for children what specifically can happen? Give the Act and section it is under.

Answer 38

In this instance the occupier would be liable for the full amount, but could recover a contribution from the guardian under S. 1(1) of the Civil Liability (Contribution) Act 1978.

Question 39

What does S. 2(3)(b) OLA 1957 say professional visitors (skilled visitors) should do?

Answer 39

Under S. 2(3)(b) OLA 1957 professional visitors should, in relation to activities carried on within their trade, appreciate and guard against any special risks ordinarily incident to that trade.

Question 40

Is this a harsher than the usual approach to occupiers' liability towards the claimant? (Professional visitors)

Answer 40

Yes.

Question 41

When will an occupier not be liable with a professional visitor?

Answer 41

An occupier will not be liable where tradesmen fail to guard against risks which they should know about.

Question 42

Give a case example for a skilled visitor.

Answer 42

Roles v Nathan [1963]

Question 43

Tradesmen might still have an action against their employer if the employer has agreed to an unsafe system of work. (Skilled visitors). Give a a case example.

Answer 43

General Cleaning Contractors v Christmas [1953] Salmon v Seafarers Restaurants Ltd [1983]

Question 44

Under the Under S. 2(1) OLA 1957 what may the occupier do regarding defences?

Answer 44

Under S. 2(1) OLA 1957 the occupier may extend, restrict, modify or exclude his duty.

Question 45

How can a occupier Under S. 2(1) OLA 1957 extend, restrict, modify or exclude his duty.

Answer 45

By issuing effective warnings under S. 2(4)(a) OLA 1957; Exclusion due to work carried out by independent contractors under S. 2(4)(b) OLA 1957; and Issuing exclusion clauses under the power granted in the Unfair Contract Terms Act 1977 (UCTA 1977).

Question 46

The occupier can also limit their liability by successfully arguing one of two general defences, what are they?

Answer 46

Contributory Negligence- the occupier has some part in the negligent act. Volenti non fit injuria- voluntarily, consent.

Question 47

For a warning sign to be effective, it must:

Answer 47

Be clear as to the danger it is warning of; Be visible in location and clarity; Be located near to the danger.

Question 48

What happens if the visitor ignores the signs given by the occupier?

Answer 48

All occupier has to do is take reasonable steps to ensure safety of their visitors, if the visitor ignores the sign then they are volunteering for the risk – see volenti.

Question 49

Sometimes, a warning sign alone may not be sufficient, the occupier may need to take further measures to ensure the safety of its visitors. Give case example.

Answer 49

Rae v Mars (UK) Ltd (1990)

Question 50

Will warning signs be sufficient for children?

Answer 50

Warning signs will not be sufficient alone when it comes to children – unable to appreciate the danger, may not be able to read or understand the sign fully, or even see it depending on placement and height of the child- all age dependent. 13 vs 3.

Question 51

In some instances, if the risk is so obvious that no additional warning is needed the occupier will not be liable. Give a case example.

Answer 51

Darby v National Trust [2001]

Question 52

If the occupier has taken reasonable steps to avoid harm will they be liable?

Answer 52

No.

Question 53

Can the occupier avoid liability for loss or injury suffered by their visitors when the cause of the damage is due to the negligence of an independent contractor?

Answer 53

Generally, the occupier can avoid liability for loss or injury suffered by their visitors when the cause of the damage is due to the negligence of an independent contractors.

Question 54

S. 2(4)(b) OLA 1957 – to avoid liability, the occupier must show:

Answer 54

It was reasonable to entrust the work done on the premises to an independent contractor; They took all reasonable steps to ensure that the contractor hired was competent; and They checked that the work had been properly done (if possible).

Question 55

Do all three elements have to be satisfied under S.2(4)(b) OLA 1957?

Answer 55

Yes

Question 56

What does S.2(4)(b) only apply to?

Answer 56

Only applies to independent contractors hired to carry out construction, maintenance or repair on the premises.

Question 57

The first requirement is that it must be reasonable for the occupier to have entrusted the work to the independent contractor. Give a case example.

Answer 57

Haseldine v Daw &Son Ltd

Question 58

The contractor must be able to demonstrate obvious expertise. The fact that the contractor fails to carry insurance for the activity should be a fair indication to the occupier that the contractor is not competent. Give a case example.

Answer 58

Bottomley v Todmorden Cricket Club [2003]

Question 59

The third requirement is that the occupier must check the work of the independent contractor if possible. The more complex and technical the work is the less reasonable it is to impose this obligation. Give a case example.

Answer 59

Woodward v The Mayor of Hastings [1945]

Question 60

What are exclusion clauses?

Answer 60

Another method which has been accepted by the court is through the use of exclusion clauses or notices which exclude an occupiers’ liability.

Question 61

What does the general rule with exclusion clauses stem from?

Answer 61

The general rule with exclusion clauses stems from Contract Law.

Question 62

What must you do with exclusion clauses and how will they only be acceptable?

Answer 62

As long as the clause was brought to the attention of the claimant prior to any loss, injury or damage, then the occupier may be able to escape liability.

Question 63

Give a case example for exclusion clauses.

Answer 63

Ashdown v Samuel Williams & Sons Ltd [1957]

Question 64

What is the general rule for exclusion clauses and children?

Answer 64

The general rule as well is that the use of an exclusion clause or sign will not be allowed in claims from children as they may be too young to understand the implications of the clause or notice, or even have the ability to read it.

Question 65

What is the rule for personal injury/death and businesses and exclusion clauses? Give the act and section.

Answer 65

In relation to UCTA 1987, S. 2(1) states that a business occupier cannot exclude liability for personal injury or death if it occurs as a result of the occupier’s negligence.

Question 66

For exclusion clauses, businesses and personal injury/death what is the minimum standard of care and why is that important?

Answer 66

It is argued that the minimum standard required in these circumstances will be the same standard applied to trespassers. If the standard was not applied then it could result in trespassers having more rights than lawful visitors.

Question 67

If the occupier argues contributory negligence does that mean they will not be held liable?

Answer 67

If the defendant successfully argues contributory negligence this does not exclude their liability completely.

Question 68

Under the Law Reform (Contributory Negligence) Act 1945 the damages which are made payable by the defendant occupier...will be?

Answer 68

...will be reduced accordingly based on the level of contributory negligence by the claimant.

Question 69

Under S. 2(5) OLA 1957 the occupier has no liability towards a visitor who?

Answer 69

who has voluntarily accepted the risks involved in entering the premises. e.g. if they saw a warning sign; 'DANGER OF ELECTROCUTION'.

Question 70

Express warning can fall under the scope of what act?

Answer 70

Express warnings may fall under the scope of UCTA 1977.

Question 71

To successfully argue Volenti Non Fit Injuria what must the visitor have done?

Answer 71

To successfully use this defence the risk must be fully understood by the visitor.

Question 72

If the risk was not understood can liability still be imposed?

Answer 72

If the risk is not understood liability may still be imposed.

Question 73

Give a case example for Volenti Non Fit Injuria.

Answer 73

Simms v Leigh Rugby Football Club [1969]

Question 74

What is a trespasser?

Answer 74

If a person enters a premises without expressed or implied permission, or if a lawful visitor acts beyond the permission granted to them, they will become an unlawful visitor.

Question 75

What did Addie v Dumbreck define a trespasser as?

Answer 75

“who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to.”

Question 76

Occupier may still be liable for injuries suffered by trespassers due to the state of the premises under which act?

Answer 76

Occupiers Liability Act 1984.

Question 77

What reflects that trespassers are deserving of less protection than lawful visitors in S. 1(4) OLA 1984?

Answer 77

As it will provide damages to the claimant for injuries only, damage to property is not covered.

Question 78

S. 1(3) OLA 1984 explains when an occupier will be held liable for injuries suffered by trespassers due to the state of the premises: What are the three elements?

Answer 78

They are aware of the danger or has reasonable grounds to believe that it exists; They know, or has reasonable grounds to believe, that the other is in the vicinity of the danger concerned, or that the other may come within the vicinity of the danger concerned; and The risk is one that they may reasonably be expected to offer the other some protection.

Question 79

The court will consider all the circumstances as to how the injury occurred. For unlawful visitors. Give a case example.

Answer 79

Donoghue v Folkstone Properties [2003]

Question 80

The occupier will not be held liable then if he or she had no reason to suspect the presence of a trespasser. For unlawful visitors. Give a case example.

Answer 80

Higgs v Foster [2004]

Question 81

The occupier is also not liable if he was not aware of the danger or had no reason to suspect the danger existed. For unlawful visitors. Give a case example.

Answer 81

Rhind v Astbury Water Park [2004]

Question 82

The character of the duty owed is, under S. 1(4) OLA 1984 is?

Answer 82

to ‘take such care as is reasonable in all the circumstances’ to prevent injury to the non-visitor.

Question 83

What is the standard of care under S.1(4) OLA 1984?

Answer 83

The standard of care is measured objectively and what is required of the occupier will depend on the circumstances of each case.

Question 84

What do the courts take into account for the degree of risk for trespassers?

Answer 84

The courts will take into account the degree of risk involved in relation to potential injuries sustained by the trespasser.

Question 85

For the degree of risk and precautions what is the link?

Answer 85

The higher the risk the more precautions the occupier will have to take.

Question 86

What are the factors that will be taken into consideration for the degree of risk?

Answer 86

Factors that will be taken into consideration include the nature of the premises, the degree of danger, the practicality of taking precautions and the age of the trespasser.

Question 87

(Unlawful visitors) The mere fact that the occupier has taken precautions or fenced the premises is not proof that the occupier knew or ought to have known of the existence of a danger. Give a case example.

Answer 87

White v St. Albans City Council [1990]

Question 88

For child and adult trespassers what is the same?

Answer 88

The same statutory rules apply to child visitors as for adult visitors. The approach of judges towards claims by child trespassers is the same as for adults.

Question 89

Give a case for child and adult trespassers and what is the same.

Answer 89

Keown v Coventry Healthcare NHS Trust [2006]

Question 90

Under S.1(5) OLA 1984 how can an occupier avoid liability?

Answer 90

Under S. 1(5) OLA 1984 the occupier can avoid liability by taking ‘such steps as are reasonable in all the circumstances.’

Question 91

In 1984 how can the occupier avoid liability specifically. When are they only effective?

Answer 91

Adults-effective warning signs. Only effective when it warns of the precise danger in clear terms.

Question 92

Give a case example for 1984 warning signs and what does it say regarding them.

Answer 92

Westwood v The Post Office [1973] 'intelligent adult'

Question 93

Section 1(6) OLA 1984 also preserves the defence of volenti. Are the principles the same?

Answer 93

The same principles will apply as they do in general terms, i.e. the claimant must appreciate the nature and degree of the risk, not merely know of its existence.