Occupiers' Liability

Question 1

Who are considered occupiers and what duty of care do they owe?

Answer 1

The owners and managers of premises are considered occupiers and they both owe a duty of care to ensure the safety of visitors on the premises.

Question 2

What is the duty of an occupier of premises to visitors?

Answer 2

An occupier of premises owes a duty to take reasonable care to see that the visitor will be reasonably safe in using the premises for the purposes for which they are invited or permitted by the occupier to be there.

Question 3

What is the purpose of the Occupiers’ Liability Act 1984?

Answer 3

The Occupiers’ Liability Act 1984 governs the duty owed by occupiers to non-visitors, specifically trespassers. It aims to establish the standard of care expected of occupiers to ensure that entrants do not suffer injury on the premises due to the danger concerned.

Question 4

Under the Occupiers’ Liability Act 1957, what is the higher standard of care owed to child visitors?

Answer 4

Child visitors are owed a higher standard of care under the Occupiers’ Liability Act 1957. Section 2(3)(a) states that an occupier must be prepared for children to be less careful than adults. This means that more may be required of an occupier in relation to child visitors to keep them reasonably safe.

Question 5

Under the Occupiers’ Liability Act 1984, what type of damages are recoverable?

Answer 5

Only personal injury is recoverable under the Occupiers’ Liability Act 1984, not property damage.

Question 6

What factors determine whether an occupier is liable for an accident on their premises?

Answer 6

Liability of an occupier depends on factors such as control over the premises, awareness of potential dangers, and the degree of care exercised. In some cases, liability may be limited if the accident was caused by a third party or if there was no reason to consider a certain condition as dangerous before the accident.

Question 7

What factors determine the standard of care for an occupier’s duty to visitors?

Answer 7

The standard of care for an occupier’s duty to visitors is generally reasonable care. However, a higher standard of care is owed to children and visitors with particular vulnerabilities, while a lower standard of care is owed to persons entering in the exercise of a calling.

Question 8

What is an example that illustrates the higher standard of care owed to child visitors under the Occupiers’ Liability Act 1957?

Answer 8

An example that illustrates the higher standard of care owed to child visitors is the case of Taylor v Glasgow City Council [1922] 1 AC 44. In this case, a child died after eating poisonous berries from a bush on the defendant’s premises. The court held that the bush was an allurement to children and should have been fenced off.

Question 9

What factors are considered when analyzing breach of duty under the Occupiers’ Liability Act 1984?

Answer 9

To analyze breach of duty under the Occupiers’ Liability Act 1984, the courts might consider negligence breach factors, age of claimant, nature of danger, nature of premises, purpose of claimant, foreseeability of trespassing, and whether a sufficient warning of the danger was given under section 1(5) of the Act.

Question 10

How did Lord Denning categorize occupiers?

Answer 10

Lord Denning categorized occupiers into four categories: (1) If the landlord does not live on the property, the tenant is the occupier; (2) If the landlord retains some part of the premises, such as common areas like stairways, they are the occupier of those parts; (3) If the landlord issues a license, they remain an occupier; and (4) If the occupier employs an independent contractor, they generally remain responsible.

Question 11

What are the defences available under the Occupiers’ Liability Act 1984?

Answer 11

The defences available under the Occupiers’ Liability Act 1984 are consent, contributory negligence, and illegality.

Question 12

What is the lower standard of care owed to persons entering premises in the exercise of their calling under the Occupiers’ Liability Act 1957?

Answer 12

Persons entering premises in the exercise of their calling (to exercise their skills) are owed a lower standard of care under the Occupiers’ Liability Act 1957. Section 2(3)(b) states that an occupier can reasonably expect a visitor coming onto their premises to exercise their skills and appreciate and guard against any risks ordinarily incidental to their job.

Question 13

What is the significance of control in determining who is an occupier?

Answer 13

Control is a significant factor in determining who is an occupier. The person in actual possession of the premises, whether they are the owner or not, and who has immediate supervision and control over the premises, is considered the occupier

Question 14

Under what circumstances can an occupier be considered not in breach of duty?

Answer 14

An occupier will not be in breach of duty if they warned the claimant of the danger and the warning was enough to enable the visitor to be reasonably safe. Additionally, an occupier will not be in breach if, where building, construction, repair, or renovation is carried out by an independent contractor, they acted reasonably in entrusting the work to the independent contractor.

Question 15

What is the duty of care owed by occupiers to visitors under the OLA 1957?

Answer 15

Under section 2(1) of the OLA 1957, an occupier of premises owes a duty of care to their visitors. The duty is to take such care as is reasonable in all the circumstances to ensure that the visitor will be reasonably safe in using the premises for the purposes for which they were permitted by the occupier to be there.

Question 16

What are the restrictions on an occupier’s freedom to use exclusion clauses under the Occupiers’ Liability Act 1984?

Answer 16

Under the Occupiers’ Liability Act 1984, an occupier cannot, by contract, exclude or restrict the common duty of care owed to a third party. This means that the duty of care owed to strangers (non-visitors) cannot be restricted or excluded by a contract. However, the provisions of the Unfair Contract Terms Act 1977 (UCTA 1977) and the Consumer Rights Act 2015 (CRA 2015) do not apply to the Occupiers’ Liability Act 1984.

Question 17

Can there be multiple occupiers of the same premises?

Answer 17

Yes, there can be multiple occupiers of the same premises. Different occupiers may have responsibility for different parts of the premises or different dangers. For example, in the case of Bailey v Armes (1999), the Court of Appeal referred to Salmond on the Law of Torts (10th ed.) for an explanation of the sufficient degree of control required for occupancy.

Question 18

What is the difference between a warning notice and an exclusion clause?

Answer 18

A warning notice is relevant to breach and whether the defendant has discharged their duty of care, while an exclusion clause operates as a potential defense once a claim has been established against the occupier. Exclusion clauses attempt to exclude or limit the occupier’s liability.

Question 19

What is the definition of ‘premises’ under the Occupiers Liability Act 1957?

Answer 19

The term ‘premises’ under the Occupiers Liability Act 1957 includes any fixed or movable structure, including vessels, vehicles, or aircraft. It has a wide definition that encompasses various types of structures.

Question 20

What is the definition of a trespasser/non-visitor under the Occupiers’ Liability Act 1984?

Answer 20

A trespasser/non-visitor is defined as someone who goes onto the land without invitation and whose presence is either unknown to the proprietor or, if known, is practically objected to.

Question 21

What are the potential defences that can be relied upon in an Occupiers’ Liability Act 1957 claim?

Answer 21

In an Occupiers’ Liability Act 1957 claim, potential defences that can be relied upon include consent/volenti, contributory negligence, and illegality. Consent/volenti can be used if the claimant willingly accepted the risk. Contributory negligence can be used if the claimant’s own negligence contributed to the incident. Illegality can be used if the claimant’s actions were illegal.

Question 22

Who are considered visitors under the Occupiers Liability Act 1957?

Answer 22

Under the Occupiers Liability Act 1957, visitors are persons who are lawfully on the premises. This includes those with express or implied permission, lawful authority, and contractual permission. Visitors are the same as invitees and licensees under common law.

Question 23

What factors are considered in determining the common duty of care under the Occupiers’ Liability Act 1957?

Answer 23

In determining the common duty of care under the Occupiers’ Liability Act 1957, factors such as the likelihood of harm, magnitude of harm, social value of the activity, and cost of preventative measures are considered. These factors are balanced against each other to determine the standard of care expected of the occupier.

Question 24

What are the restrictions on an occupier’s freedom to use exclusion clauses under the Unfair Contract Terms Act 1977 (UCTA 1977)?

Answer 24

Under UCTA 1977, exclusion clauses in relation to negligence (including breach of duty under the Occupiers’ Liability Act 1957) cannot exclude or restrict liability for death or personal injury. However, in relation to other loss, a person can exclude or restrict liability for negligence if the term or notice satisfies the requirement of reasonableness, as defined in Section 11 of UCTA 1977.

Question 25

What are the conditions that need to be satisfied to establish a duty of care owed by an occupier to a trespasser/non-visitor?

Answer 25

To establish a duty of care owed by an occupier to a trespasser/non-visitor, three conditions need to be satisfied: (1) the occupier is aware of the danger or has reasonable grounds to believe that it exists, (2) the occupier knows or has reasonable grounds to believe that the other person is in the vicinity of the danger, and (3) the risk is one against which, in all the circumstances, the occupier may reasonably be expected to offer some protection.

Question 26

How can an occupier limit permission for visitors through notice?

Answer 26

An occupier can limit permission for visitors through notice by imposing restrictions in terms of area, time, or purpose. For example, signs indicating restricted areas or opening hours can limit the scope of permission and turn a visitor into a trespasser.

Question 27

What is the role of warnings in discharging the duty of care under the Occupiers’ Liability Act 1957?

Answer 27

Warnings can be used to discharge the duty of care under the Occupiers’ Liability Act 1957. If there is adequate warning of a danger, written, visual, or oral, and the warning is enough to enable the visitor to be reasonably safe, the occupier may have discharged their duty. The warning should make the visitor aware of the danger, its location, and how to avoid it.

Question 28

What are the restrictions on an occupier’s freedom to use exclusion clauses under the Consumer Rights Act 2015 (CRA 2015)?

Answer 28

Under CRA 2015, traders cannot exclude their liability for death or personal injury resulting from negligence. However, they may exclude liability for other loss if the term or notice is fair. The fairness of a term is determined by whether it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer, as defined in Section 62 of CRA 2015.

Question 29

What is implied permission and how can it be limited?

Answer 29

Implied permission exists based on an occupier’s behavior. For example, a postman has implied permission to enter a property to deliver letters. However, implied permission can be limited by notice, such as signs indicating restricted access or activities.

Question 30

What is the standard of care for an occupier’s duty to a trespasser/non-visitor?

Answer 30

The standard of care for an occupier’s duty to a trespasser/non-visitor is such care as is reasonable in all the circumstances to see that the entrant does not suffer injury on the premises by reason of the danger concerned.

Question 31

What are the common law restrictions on the use of exclusion clauses in occupiers’ liability cases?

Answer 31

If neither UCTA 1977 nor CRA 2015 applies, common law restrictions may still apply. These restrictions are based on the principle of common humanity, as established in the case of British Railway Board v Herrington [1972] AC 877. The common law restrictions ensure that a conscientious person with the defendant’s knowledge, skill, and resources would be reasonably expected to have done something to help avoid the accident.

Question 32

What is lawful authority and who can enter premises with lawful authority?

Answer 32

Lawful authority refers to the right conferred by law for a person to enter premises. Police officers with a warrant and persons with statutory rights, such as gas board officials, can enter premises with lawful authority.

Question 33

What is the purpose of Section 3 of the Occupiers’ Liability Act 1957?

Answer 33

Section 3 of the Occupiers’ Liability Act 1957 states that an occupier cannot, by contract, exclude or restrict the common duty of care owed to a third party. This means that if an occupier is bound by a contract to allow strangers (non-visitors) to enter or use the premises, the duty of care owed to those strangers cannot be restricted or excluded by the contract.

Question 34

What is contractual permission and what duty of care is owed to visitors with contractual permission?

Answer 34

Contractual permission refers to entering premises under the terms of a contract with the occupier. In the absence of express provisions, there is an implied term that the entrant is owed the common duty of care. This means that the occupier owes a duty of care to visitors with contractual permission.

Question 35

How are causation and remoteness addressed in claims under the Occupiers’ Liability Act 1957?

Answer 35

Causation and remoteness in claims under the Occupiers’ Liability Act 1957 are addressed using the same legal principles as in negligence claims. The courts assume that causation and remoteness have been satisfied unless there are specific issues that need closer examination. The legal tests used in negligence claims can be applied to determine causation and remoteness in Occupiers’ Liability Act claims.

Question 36

Under the Occupiers’ Liability Act 1957, who is considered a stranger to the contract?

Answer 36

A stranger to the contract is defined as someone who is not entitled to the benefit of the contract, such as not being a party or a successor. This definition is outlined in Section 3(3) of the Occupiers’ Liability Act 1957.

Question 37

What is the standard of care owed by an occupier to a visitor?

Answer 37

The standard of care owed by an occupier to a visitor is that of a reasonable occupier. It is an objective test, similar to negligence. The occupier must take reasonable care to ensure the visitor’s safety on the premises.

Question 38

What is the purpose of Section 3(1) of the Occupiers’ Liability Act 1957?

Answer 38

Section 3(1) of the Occupiers’ Liability Act 1957 aims to protect employees of a person with whom the occupier has contracted. If the occupier has contracted with a person for their employees to do work on the premises, the occupier may not restrict or exclude any liability to those employees under the Occupiers’ Liability Act 1957. Additionally, any term of the contract that obliges the occupier to increase the level of care shown to these employees will establish the standard of care to be shown.

Question 39

How does an occupier’s awareness of a visitor’s vulnerability affect the duty of care?

Answer 39

If an occupier is aware of a visitor’s vulnerability, they can reasonably be expected to take steps to guard against it. For example, if an occupier is aware that a visitor is blind, they should take measures to ensure their safety, such as warning them of potential hazards.

Question 40

What is the legal test for the defence of volenti in an Occupiers’ Liability Act 1957 claim?

Answer 40

The legal test for the defence of volenti in an Occupiers’ Liability Act 1957 claim is that the claimant must be fully aware of the particular risk and willingly accept the risk through their conduct. Volenti can be used as a defence if the claimant voluntarily assumed the risk.

Question 41

What are some examples of personal characteristics that may affect the standard of care owed by an occupier?

Answer 41

Personal characteristics such as age, physical disabilities, or mental impairments may affect the standard of care owed by an occupier. The occupier should consider these characteristics and take appropriate measures to ensure the visitor’s safety.

Question 42

What are the restrictions on the use of exclusion clauses under the Unfair Contract Terms Act 1977 (UCTA 1977)?

Answer 42

UCTA 1977 restricts the use of exclusion clauses to exclude or limit liability for negligence, which includes breach of duty under the Occupiers’ Liability Act 1957. Section 2(1) of UCTA 1977 states that a person cannot exclude or restrict their liability for death or personal injury resulting from negligence. However, in relation to other loss, a person can exclude or restrict their liability for negligence if the term or notice satisfies the requirement of reasonableness, as defined in Section 11 of UCTA 1977.

Question 43

What is the legal test for the defence of contributory negligence in an Occupiers’ Liability Act 1957 claim?

Answer 43

The legal test for the defence of contributory negligence in an Occupiers’ Liability Act 1957 claim is that the degree of care, and want of care, which would ordinarily be looked for in such a visitor is taken into account. The courts consider the claimant’s own negligence and assess whether they contributed to the incident.

Question 44

What is the loss for which an occupier is liable under the Occupiers’ Liability Act 1984?

Answer 44

Under the Occupiers’ Liability Act 1984, the occupier is liable for physical injury, including disease and any impairment of a person’s physical or mental condition. However, property damage is not recoverable.

Question 45

Can an occupier limit their duty of care to visitors?

Answer 45

An occupier can limit their duty of care to visitors through notice. By providing clear and appropriate signs or notices, an occupier can restrict entry to certain areas, impose time limits, or specify the purpose for which visitors are permitted on the premises.

Question 46

What is the legal test for the defence of illegality in an Occupiers’ Liability Act 1957 claim?

Answer 46

The legal test for the defence of illegality in an Occupiers’ Liability Act 1957 claim is that the claimant’s actions were illegal. Illegality can be relied upon as a defence if the claimant’s actions were unlawful or against public policy.

Question 47

What are the three terms that need to be determined to decide whether the OLA 1957 applies and whether a duty of care is owed?

Answer 47

The three terms that need to be determined to decide whether the OLA 1957 applies and whether a duty of care is owed are: (1) Whether the defendant is an occupier; (2) Whether the defendant is an occupier of premises that caused loss to the claimant; and (3) Whether the claimant is a visitor.

Question 48

What is the definition of an occupier under the OLA 1957?

Answer 48

An occupier is someone who has a sufficient degree of control over the premises.

Question 49

hat are the requirements for an occupier to escape liability when using independent contractors under the Occupiers’ Liability Act 1957?

Answer 49

For an occupier to escape liability when using independent contractors under the Occupiers’ Liability Act 1957, they must satisfy the requirements of hiring an independent contractor, selecting the independent contractor, and supervising and checking that the work is properly done. These requirements ensure that the occupier acted reasonably in engaging the independent contractor.

Question 50

What is the difference between public and private rights of way in terms of occupiers’ liability?

Answer 50

Public rights of way, such as footpaths, are not covered by the Occupiers Liability Act 1957 or the Occupiers Liability Act 1984. Visitors using public rights of way rely on common law principles. Private rights of way, on the other hand, are covered by the Occupiers Liability Act 1984.

Question 51

What conditions must be met for someone to be considered a visitor under the Occupiers Liability Act 1957?

Answer 51

To be considered a visitor under the OLA 1957, a person must have some sort of permission or authority to be on the premises. This can be express or implied permission, permission through a contractual provision, permission granted by statute, or permission due to the doctrine of allurement in the case of children.

Question 52

What is the standard of care that an occupier is required to meet towards visitors?

Answer 52

The common duty of care under the OLA 1957 is to take such care as is reasonable in all the circumstances of the case to ensure that the visitor will be reasonably safe in using the premises. The standard of care is an objective test and depends on the characteristics of the visitor. For example, a higher standard of care is owed to children, while less might be expected of occupiers in relation to skilled visitors.

Question 53

Who is an occupier?

Answer 53

The common law defines an occupier as a person who has a sufficient degree of control over the premises.

Question 54

Dushal is a professional electrician. He is working at a wealthy client’s house when the wooden stairs give way. He falls and suffers serious injuries. The client thought the stairs required some maintenance work.

Which of the following is correct under the OLA 1957?

Dushal is owed a higher standard of care than the ordinary visitor as he is a professional visitor. It is likely that the client is in breach of duty.

Dushal is owed the same standard of care as an ordinary visitor. It is unlikely that the client is in breach of duty as it is known that stairs can be dangerous.

Dushal is owed the same standard of care as any ordinary visitor. It is likely that the client is in breach of duty.

Dushal is owed a lower standard of care than the ordinary visitor as he is a person entering in the exercise of a calling. It is therefore unlikely the client is in breach of duty as Dushal should have protected against all risks.

Dushal is owed a lower standard of care than the ordinary visitor as he is a person entering in the exercise of a calling. However, the client is likely to be in breach of duty as the risk of the stairs collapsing was not a risk incidental to being an electrician.

Answer 54

Dushal is owed the same standard of care as any ordinary visitor. It is likely that the client is in breach of duty.

This is the correct answer. Dushal will be owed the standard of care under s.2(2) OLA 1957. Although he is a person entering in exercise of a calling, a lower standard is only owed in relation to risks incidental to the person’s trade/job. The risk of stairs collapsing is not a risk incidental to being an electrician. The occupier is likely to be in breach if the stairs were unsafe: he knew the stairs required maintenance and had the money to repair them.

Question 55

An occupier of premises puts up a large sign on their electrical fence saying “Danger. Electrical fence. Do not touch.” A visitor touches the fence and is electrocuted. Which of the following is correct under the OLA 1957?

The occupier has discharged their duty of care to the visitor as the warning is in writing (s.2(4)(a) OLA 1957).

The occupier has discharged their duty of care to the visitor as they have warned of the danger concerned (s.2(4)(a) OLA 1957).

The occupier has discharged their duty of care to the visitor as the warning was enough to ensure the premises were reasonably safe (s.2(4)(a) OLA 1957).

The occupier has discharged their duty of care to the visitor as the danger was an obvious danger (s.2(4)(a) OLA 1957).

The occupier has discharged their duty of care to the visitor as the warning was enough to enable the visitor to be reasonably safe (s.2(4)(a) OLA 1957).

Answer 55

The occupier has discharged their duty of care to the visitor as the warning was enough to enable the visitor to be reasonably safe (s.2(4)(a) OLA 1957).

This is the correct answer. Under s.2(4)(a) OLA 1957 the occupier discharges the duty of care owed to a visitor if they warn the visitor of the danger concerned, and the warning is enough to enable the visitor to be reasonably safe. Case law suggests that this means informing the visitor of what the danger is, where it is and how to avoid this. The occupier’s warning (“Danger. Electrical fence. Do not touch.”) does this.

Question 56

A nine year old boy is at a playground with his mother. The playground is owned by the local authority. The boy falls over and cuts his knee badly on glass from a broken bottle. His mother was not watching him at the time. Which of the following is correct under the OLA 1957?

The local authority owes the boy the same standard of care as adult visitors. They are not in breach as an adult would have seen the broken bottle.

The local authority owes the boy a higher standard of care than adult visitors and it is likely to be in breach of duty given the playground is an area commonly used by children.

The local authority owes the boy a higher standard of care than adult visitors but it is unlikely to be in breach of duty as it is not their fault someone left a broken bottle at the playground.

The local authority owes the boy a higher standard of care than adult visitors, but it is unlikely to have breached its duty as the boy’s mother should have been supervising him.

The local authority owes the boy a higher standard of care than adult visitors and it is likely to be in breach as the boy has been injured.

Answer 56

The local authority owes the boy a higher standard of care than adult visitors and it is likely to be in breach of duty given the playground is an area commonly used by children.

Under s.2(3)(a) OLA 1957 occupiers owe children a higher standard of care. There is likely to be a breach here as the local authority should have got rid of the broken bottle. Children will regularly be in the area, so it is important to take extra precautions in order to keep the premises reasonably safe.

Question 57

A university student is temporarily banned from the university premises. He enters the premises to meet some of his friends at the student bar. When he is leaving, he falls down a steep staircase which has no handrail or lighting. He breaks his neck and is left paralysed.

Which of the following is correct under the OLA 1984?

The student will be owed a duty of care by the university if they were aware of the danger, knew that someone would be in the vicinity of the danger, and the risk was one against which the university ought to offer protection.

The student will not be owed a duty of care by the university as his injuries were caused by his activity on the premises, rather than the state of the premises themselves.

The student will not be owed a duty of care by the university as he has suffered personal injury.

The student will be owed a duty of care by the university if they were aware of the danger and knew the claimant would be in the vicinity of the danger.
The student will not be owed a duty of care by the university as he was banned from the university premises.

Answer 57

The student will be owed a duty of care by the university if they were aware of the danger, knew that someone would be in the vicinity of the danger, and the risk was one against which the university ought to offer protection.

Question 58

Following on from question one, the university had erected a temporary barrier to try and prevent students using the staircase. The student had difficulty climbing over the barrier to get to the staircase. Which of the following is correct under the OLA 1984?

A physical barrier is not a sufficient warning under the OLA 1984 especially as the student was able to climb over it.

The university do not need to warn trespassers of any dangers.

A physical barrier is likely to be a sufficient warning under the OLA 1984.

A physical barrier is not sufficient for the purpose of warning of a danger under the OLA 1984. There should have been a written sign accompanying the barrier denying access.

A physical barrier is not sufficient for the purpose of warning of a danger under the OLA 1984. A sufficient warning must make it clear what the danger is, where it is and how to avoid it.

Answer 58

A physical barrier is likely to be a sufficient warning under the OLA 1984.

This is the correct answer. It is easier for the occupier to discharge their duty under the OLA 1984 than the OLA 1957. Under s.1(5) OLA 1984 the occupier will discharge their duty of care if they have warned the trespasser of the danger or discouraged persons from incurring the risk. The physical barrier is likely to be enough to discourage persons from incurring the risk, as it was in the case of Titchener v British Railway Board.

Question 59

A householder invites friends over for lunch. They are having a tennis court built on their property and have erected a sign at the entrance to their property reading “Tennis court under construction on this property and the construction site is dangerous. Under no circumstances will the occupier be liable for any injury caused to those on/near the construction site.” One of the householder’s friends decides to look at the tennis court. The friend’s heel gets stuck in wet clay, causing them to fall. They break their ankle and wrist. The friend sues the householder for breach of duty under the Occupiers’ Liability Act 1957.

Which of the following statements is correct?

The sign is an exclusion notice but will be subject to the CRA 2015, so the householder is unable to exclude liability for personal injury.

The sign is an exclusion notice but will be subject to the UCTA 1977 and the CRA 2015, so the householder is unable to exclude liability for personal injury.

The sign is an exclusion notice but will be subject to the UCTA 1977, so the householder is unable to exclude liability for personal injury.

The sign is an exclusion notice and may operate as a potential defence to the claim.

The sign is an exclusion notice but will be subject to section 3 OLA 1957, so the householder is unable to exclude or restrict the duty of care that they owe their friend.

Answer 59

The sign is an exclusion notice and may operate as a potential defence to the claim.

The exclusion notice will not be subject to UCTA 1977 or the CRA 2015. The householder is a private occupier, so not occupying the premises for business purposes or acting as a trader. The exclusion notice may be subject to the common law restrictions but seems unlikely to succeed here, although further information needed.

Question 60

A client would like advice on whether they can exclude their liability under the OLA 1957. The client owns a small sweet shop and wants to protect themselves against claims from customers who injure themselves on their premises.

Which of the following is correct?

The exclusion notice will be subject to common law restrictions. The client can exclude liability for any type of loss if it is considered reasonable to do so.

The exclusion notice will be subject to UCTA 1977. The client cannot exclude liability for any personal injury caused by their negligence but can for other types of loss if the notice is reasonable.

The exclusion notice will be subject to the CRA 2015. The client can exclude liability for any type of loss provided the consumer notice is considered fair.

The exclusion notice will be subject to the CRA 2015. The client cannot exclude liability for any personal injury caused by their negligence but can for other types of loss if the notice is considered fair.

The exclusion notice will be subject to UCTA 1977. The client can exclude liability for any type of loss provided the consumer notice is considered reasonable.

Answer 60

The exclusion notice will be subject to the CRA 2015. The client cannot exclude liability for any personal injury caused by their negligence but can for other types of loss if the notice is considered fair.

The customers would be consumers and the client would be a trader. The CRA 2015 would therefore apply to any consumer notice. Section 65(1) CRA 2015 says that a trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence (this includes a breach under the OLA 1957).In respect of damage other than death or personal injury, an unfair notice is not binding on the consumer (s.62(2) CRA 2015).

Question 61

A 5 year old boy is attending a funfair with his mother. While she is having their tickets checked, he wanders off and finds a large tent with cheering coming from inside it. At the entrance to the tent there is a sign stating: ‘Children must be accompanied by an adult.’ He walks into the tent and sees a tiger in a cage. He pushes his arm through the gap in the bars to pat the tiger. The tiger bites his arm, causing serious injury.

Which one of the following statements best explains whether or not the funfair owner owes the boy a duty of care?

The boy is a visitor because he had implied permission to be on the premises. The funfair owner therefore owes him an automatic duty of care.

The boy is a visitor because he had contractual permission to be on the premises once his mother bought the tickets. The funfair owner therefore owes him an automatic duty of care.

The boy could be either a visitor or a trespasser. A duty of care will be therefore automatically imposed on the funfair owner.

The boy is a trespasser because he should not have put his arm into the tiger’s cage. The funfair owner will not therefore owe him a duty of care.

The boy is a trespasser because he should have been accompanied by an adult when he walked into the tent. The funfair owner therefore may owe him a duty of care.

Answer 61

The boy is a visitor because he had contractual permission to be on the premises once his mother bought the tickets. The funfair owner therefore owes him an automatic duty of care.

Correct. The boy has contractual permission to visit the funfair as a ticket holder and so is a visitor for the purposes of s1(2) OLA 1957. His permission has not been limited by the sign that he, aged 5, will not have been able to read or understand. Following Pearson v Coleman Bros (1948) 2 KB 359 an occupier must be very clear as to the areas where visitors are denied access if he is seeking to limit their permission by area. The funfair is ‘premises’ for the purposes of s1(3) OLA 1957 and is controlled by the funfair owner, who is the ‘occupier’ for the purposes of s1(2) OLA 1957. The funfair owner therefore owes the boy an automatic duty of care under s 2(1) OLA 1957.

Question 62

A department store needs to repaint its ladies’ toilets. They contract a decorator to do the work overnight. The next morning, although the decorator is still finishing off the work and the paint is still wet, the department store opens the ladies’ toilets as usual with the decorator’s approval. A lady enters and her Chanel handbag gets covered in paint.

Which of the following best describes against whom the lady can bring a claim in occupiers’ liability under the OLA 1957?

The lady can bring a claim against the decorator only, as the decorator is the only person with a sufficient degree of control over the toilets.

The lady can bring a claim against the department store and/or decorator, as both have a sufficient degree of control over the toilets.

The lady cannot bring a claim against anyone in occupiers’ liability as the toilets are not premises.

The lady can bring a claim against the department store only, as they alone have a sufficient degree of control over the toilets.

The lady cannot bring a claim against anyone in occupiers’ liability as she has not suffered any personal injury.

Answer 62

The lady can bring a claim against the department store and/or decorator, as both have a sufficient degree of control over the toilets.

Question 63

A family has owned a large country estate for 22 years, which they allow members of the public to visit upon paying an entrance fee. A woman pays the entrance fee and visits the country estate. As she is walking around the estate, she becomes distracted by her mobile phone ringing, so she does not look where she is going and she trips over a paving slab that has been left in the middle of the pathway. She suffers a broken ankle as a result.

Which statement best describes the defence available to the family in relation to the woman’s claim for her broken ankle?

The family can raise the defence of prescription.

There are no defences that the family can raise.

The family can raise the defence of volenti.

The family can raise the defence of an act of a third party.

The family can raise the defence of contributory negligence.

Answer 63

The family can raise the defence of contributory negligence.

Question 64

An empty hospital ward is due to be refurbished and the hospital has put a sign on the door of the ward that says ‘Work in Progress - No entry under any circumstances’ and has placed a table across the doorway to prevent access. Some patients have been moving the table and opening the door to use the ward as a waiting room, as there is never enough space in the general waiting area. The hospital is aware a couple of patients have done this. A patient trips over a loose floor tile while waiting in the empty ward and breaks his arm.

Which of the following best describes whether or not the hospital is in breach of a duty of care to the patient under the Occupiers’ Liability Act 1984?

The hospital is unlikely to owe a duty of care to the patient as the risk is not one which the hospital would reasonably be expected to protect against.

The hospital is unlikely to owe a duty of care to the patient as it was not aware that anyone would be using the ward because it had prevented access.

The hospital is unlikely to owe a duty of care to the patient as he is not supposed to be in the empty ward.

The hospital is likely to owe a duty of care to the patient and it is in breach as it has failed to put up a sign that warns visitors of the actual danger.

The hospital is likely to owe a duty of care to the patient, but it is not in breach because it has taken reasonable steps to warn visitors of the danger.

Answer 64

The hospital is likely to owe a duty of care to the patient, but it is not in breach because it has taken reasonable steps to warn visitors of the danger.

Correct. The patient is a trespasser in the ward as the sign makes it clear that his presence in the ward would be objected to by the hospital - Robert Addie & Son (Collieries) Ltd v Dumbreck (1929) AC 358. The hospital will only owe a duty of care to the patient if each of the elements of s.1(3)(a)-(c) OLA 1984 are satisfied. If owed, the duty will be to take such care as is ‘reasonable in all the circumstances to see that he does not suffer injury by reason of the danger concerned’: s.1(4) OLA 1984. The hospital is aware of the danger, patients are known to be using the ward and the danger of the loose floor tile is likely to be a risk reasonable for the hospital to guard against. However, the hospital, in putting the sign on the ward door and a table in the doorway to prevent access has taken reasonable steps to warn of the danger. See s.1(5) OLA 84 and Titchener v BRB.

Question 65

A client owns and runs a cafe. One of their customers sat on a broken chair which collapsed. They hit their head against the wall and suffered a serious head injury. There was a notice in the cafe reading “The owner of the cafe accepts no liability for any injury caused on the cafe premises howsoever caused.” The customer is suing the client for breach of duty under the Occupiers’ Liability Act 1957.

Which of the following statements is the most accurate advice to give the client?

The notice is an exclusion notice and will operate as an effective defence to any claim brought by the customer, as under the Consumer Rights Act 2015, the notice will be deemed fair.

The notice is an exclusion notice and will operate as an effective defence to any claim brought by the customer.

The notice is an exclusion notice and will operate as an effective defence to any claim brought by the customer, as under the Unfair Contract Terms Act 1977, the notice will be deemed fair and reasonable.

The notice is an exclusion notice but is ineffective as under the Unfair Contract Terms Act 1977, a business occupier cannot exclude liability for personal injury resulting from their negligence.

The notice is an exclusion notice but is ineffective as under the Consumer Rights Act 2015, a trader cannot exclude liability for personal injury resulting from their negligence.

Answer 65

The notice is an exclusion notice but is ineffective as under the Consumer Rights Act 2015, a trader cannot exclude liability for personal injury resulting from their negligence.

This is correct. Under s.65(1) CRA 2015 a trader (someone acting for the purposes relating to their trade, business, craft or profession) cannot exclude their liability for personal injury resulting from their negligence where the claimant is a consumer (someone acting wholly or mainly outside their trade, business, carft or profession).

Question 66

Question 1
A solicitor’s client owns and runs a hotel. Their in- house maintenance team have
been repairing a leak in the fountain that is in the hotel foyer. To access the leak, the
maintenance team have had to remove a marble slab from the surface of the floor which
exposed a large hole. A hotel guest, running to catch the lift in the hotel foyer and carrying
a heavy suitcase, fell into the hole, breaking their pelvis as a result. There is a large notice
at the reception desk, at the entrance to the foyer, stating: ‘Warning Fountain Repair
Work: The hotel management apologises for any inconvenience caused by repair work
being carried out in the hotel foyer but accepts no responsibility for any injury, loss, or
damage howsoever caused to guests.’
Which of the following statements best explains whether the hotel will be liable for the
injury to the guest?
A Yes, because the warning did not enable the guest to be reasonably safe as it was too
general in nature.
B Yes, because the warning did not enable the guest to be reasonably safe as it was too
general in nature. However, it is likely that the guest’s damages will be reduced as they
were contributory negligent.
C No, because, while the warning did not enable the guest to be reasonably safe as it
was too general in nature, the hotel have excluded their liability.
D No, because reasonable steps have been taken to bring the risk of the problem to the
guest’s attention and the wording of the warning covers the loss suffered by the guest.
E No, because the warning enabled the guest to be reasonably safe as the hole was an
obvious danger.

Answer 66

Answer
Option B is correct. The guest is a visitor who has been injured due to the state of the hotel
premises and their claim will be governed by the Occupiers’ Liability Act 1957 (the 1957
Act). Under the 1957 Act, a warning will not discharge the occupier’s duty of care unless it
is adequate, ie it enables the guest to be reasonably safe. This warning is too general in
nature as it does not alert visitors to the specific problem with the floor. However, the guest’s
damages will be reduced as they were contributory negligent on the facts. They were careless
for their own safety by running for the lift etc and not paying full attention to the floor. This
carelessness contributed to the injury that they suffered.
Option A is not the best answer as it fails to take account of the fact that the hotel’s liability
will be reduced due to the defence of contributory negligence.
Option C is wrong because the exclusion notice will be void as against the guest. It appears
that the notice is prominent and so, at common law, the hotel has taken reasonable steps to
draw it to the attention of guests. However, it will be subject to the Consumer Rights Act 2015
because the hotel is a ‘trader’ and the guest is a consumer. The notice is, therefore, void as
regards the guest’s personal injury.
Option D is wrong because it incorrectly states the test for when a warning will be adequate
under the 1957 Act (these are the common law requirements for an exclusion notice).
Option E is wrong because the fact that it may, or may not have been an obvious danger did
not, in itself, make the warning adequate under the 1957 Act.

Question 67

Question 2
A solicitor’s client owns and runs a clothes shop. They contracted with a known and
reputable company to supply and fit new stairs to the second floor of the shop. The work
was carried out one evening while the shop was closed to customers. The next day a
customer trod on a long protruding nail in the middle of the bottom step, causing a severe
injury to their foot.
Which of the following statements best explains whether the shop owner will be liable
for the injury to the customer?
A No, because the shop owner used a reputable company to carry out the work and
is therefore not at fault in any way. The customer should bring their claim against the
company that installed the stairs.
B No, because the shop owner used a reputable company to carry out the work and it
was not reasonable for the shop owner to check the stairs before opening the shop to
the public. The customer should bring their claim against the company that installed the
stairs.
C Yes, because the customer was injured due to a breach of the duty of care the shop
owner owes their visitors.
D Yes, because the customer was injured due to a breach of the duty of care the shop
owner owes their visitors. The shop owner cannot delegate this duty of care to the
company that installed the stairs.
E Yes, because, despite the fact that the shop owner used a reputable company to carry
out the work, it was reasonable to expect the shop owner to check the stairs before
opening the shop to the public.

Answer 67

Option E is the correct answer as it considers the requirements under the 1957 Act and
correctly applies the facts of the question.
Option A is wrong because it fails to consider all elements of the requirement that the
occupier, who employs an independent contractor to carry out work on their premises, must
have done all that reasonable care requires of them under the 1957 Act. Entrusting the work
to an independent contractor is generally accepted to be reasonable. The fact that the
independent contractor is ‘reputable’ meets the requirement that steps were taken to ensure
that the contractor was competent. However, it fails to consider whether the occupier had
taken such steps (if any) as they reasonably ought in order to satisfy themselves that the work
had been properly done. Without considering this final requirement, it is not possible to state
that the occupier was not at fault.
Option B is wrong because, while it does consider the final requirement, it is incorrect on the
facts of the question. The fitting of a new staircase is work of a technical nature. However,
no specialist knowledge was required to see that a nail was sticking out of one of the steps
by checking the contractor’s work. The shop owner had not, therefore, discharged their duty
of care.
Option C is wrong as it is an oversimplification of the breach issue. It does not consider the
requirements under the 1957 Act (set out above), so is not the best explanation of why the
shop owner will be liable.
Option D is wrong for the same reason as C. In addition, it is wrong because, if an occupier
meets all the requirements under the 1957 Act (set out above), it can, in effect, delegate its
duty of care by employing independent contractors.

Question 68

Question 3
A solicitor is instructed by a client who broke their leg and damaged an expensive watch
when they fell while attempting to break into a factory by climbing over one of the ten- foot-
high perimeter walls. Following several recent break- ins, the factory owner had installed
an electrified wire along the top of all the perimeter walls. The factory owner accepts that
there is not a notice warning of the wire’s presence on the wall. The solicitor’s client fell
upon touching this wire.
There is a prominent notice at the entrance to the factory which reads: ‘The owner accepts
no liability for any injury or damage suffered by anyone, howsoever caused, on these
premises.’
Which of the following statements best explains whether the client will be successful in
their claim against the factory owner?
A Yes, because, the factory owner was clearly aware of the danger, knew that trespassers
could come within the vicinity of the danger and the danger of touching an electrified
wire was a hidden hazard. The factory owner was, therefore, expected to offer some
protection against the risk of falling off the wall, eg a warning sign. The breach of this
duty of care caused the client’s injuries and property damage.
B Yes, because, the factory owner was clearly aware of the danger, knew that trespassers
could come within the vicinity of the danger and the danger of touching an electrified
wire was a hidden hazard. The factory owner was, therefore, expected to offer some
protection against the risk of falling off the wall, eg a warning sign. The breach of this
duty of care caused the client’s injuries and property damage. However, the client will
not be able to claim for their damaged watch.
C No, because the factory owner can rely upon the defence of illegality to defeat
the claim.
D No, because the client was a trespasser and will not be owed a duty of care by the
factory owner. While the factory owner was clearly aware of the danger and knew that
trespassers could come within the vicinity of the danger, the danger of falling off the
wall was an obvious hazard. The factory owner was not, therefore, expected to offer
any protection against the risk of falling off the wall.
E No, because the factory owner can rely upon the defence of exclusion of liability to
defeat the claim.

Answer 68

Answer
Option B is the correct answer as it correctly sets out why the client would be owed a duty of
care by the factory owner under the 1984 Act.
Option A is wrong because, while it also sets out why the client is owed a duty of care, it does
not deal with the fact that property damage is not a loss covered by the 1984 Act.
Option C is wrong because the defence of illegality does not apply to claims under the
1984 Act.
Option D is wrong because, while the height of the wall is an obvious danger, the electrified
wire is not. The client would, therefore, be owed a duty of care.
Option E is wrong because the most likely interpretation of the 1984 Act is that an occupier’s
liability cannot be excluded

Question 69

A woman owns premises from which she runs her business of providing spa facilities and beauty treatments to the public. A customer was injured whilst using one of the showers in the spa when several tiles fell off the shower wall onto her feet.

The shower had been recently refurbished by independent contractors specialising in installing commercial spa facilities. They had been recommended by the woman’s experienced surveyor who inspected and approved the completed works.

The tiles fell off the wall because the independent contractors used inadequate tile adhesive to fix the tiles to the wall.

Which of the following best describes the woman’s potential liability under the Occupiers’ Liability Act 1957?

A. She is not liable because she reasonably engaged competent contractors and had the work checked afterwards.

B. She is not liable because the independent contractors had control over the premises when the negligent work was carried out.

C. She is liable because the customer was a visitor to the premises.

D. She is liable because the woman and the independent contractors are both occupiers.

E. She is liable because the tiles are a danger on the premises.

Answer 69

A - She is not liable because she reasonably engaged competent contractors and had the work checked afterwards.