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Occupiers’ Liability Flashcards

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1
Q

What is Occupiers’ Liability?

A

Occupiers’ Liability is the rule that the occupier may be liable if injury occurs on their land and the occupier has not taken proper care.

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2
Q

What is the Occupiers’ Liability Act 1957?

A

The occupier of premises owes a DOC to lawful visitors and the duty is breached and the visitor is injured, he is entitled to receive compensation

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3
Q

What is the Occupiers’ Liability Act 1984

A

Trespassers have similar rights when injured on the occupiers property

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4
Q

What is an ‘Occupier’

A
  • There is no statutory definition of ‘occupier’
  • It is usually the owner or tenant of the premises
  • The test for deciding whether a person is the occupier is found in case law
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5
Q

Wheat v E.Lacon & Co.Ltd

A

Facts: the manager of a pub was allowed to rent out rooms in his private quarter. A paying guest fell on an unlit stair case and died
Held: the HoLs decided that both the manager and his employers could be occupiers under the Act so there could be more than one occupier of the premises

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6
Q

Harris v Birkenhead Corporation

A

Held: the person who is in control of the premises will be considered the occupier. Who is in control may be influenced by whose insurance policy covers the premises and who is able to meet the claim

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7
Q

What if the courts find no one in control?

A

This will leave the injured visitor with no claim

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8
Q

What is the ‘Premises’

A
  • There is no full statutory definition of premises, but s.1(3)(a) Occupiers’ Liability Act 1957 references ‘any fixed or moveable structure, including any vessel, vehicle and aircraft’.
  • This has included obvious places like houses, offices and buildings.
  • Wheeler v Copas stated that a ‘premises’ included a ladder.
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9
Q

To decide liability under the Occupiers’ Liability Act 1957, the court will ask what 3 questions?

A
  1. Is D an occupier of premises?
  2. Is C a visitor?
  3. Has D breached his duty? D failed to keep the claimant safe for the legitimate purposes of the claimant’s visit
    If yes, D is liable under the 1957 Act.
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10
Q

What are the 4 areas under the 1957 Act

A

Adult visitors
Children
Traders
Independent contractors

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11
Q

S.2(1)

A

A lawful visitors is owed a duty of care

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12
Q

S.2(2)

A

The occupier must keep the visitor reasonably safe for the purpose for which he is invited to be there

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13
Q

Adult visitors:

A

Must be kept reasonably safe but do not have to guarantee safety. The risk must be reasonably foreseeable.

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14
Q

Children:

A

Occupiers owe a special duty to children. They must be prepared for children to be less careful than adults and it’s measured to the age of the child. Occupiers’ must try avoid any allurements.

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15
Q

Traders:

A

Owe a common duty of care. Occupiers will not be liable if the trader fails to guard against risks they should be aware of.

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16
Q

Independent contractors:

A

If a visitor is injured by a workman’s negligent work, the occupier may have a defence and be able to pass the claim onto the workman, thus making the workman liable.

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17
Q

What do lawful adult visitors include

A

Invitees - those with expressed permission to be there e.g friends
Licenses - those with permission for a particular reason e.g postal workers
Contractual permission - e.g those with a ticket for an event/ window cleaner
Statutory permission - e.g the police exercising a warrant

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18
Q

Deanand Chapter of Rochester Cathedral v Debell stated:

A
  1. The occupier has to ensure the land is reasonably safe for visitors but do not have to guarantee safety and;
  2. That the risk will be reasonably foreseeable if there is a real source of danger
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19
Q

Laverton v Kiapasha Takeaway Supreme:

A

Facts: D owned a takeaway and had slip resistant tiles fitted. Workers would mop to dry the floor when it had been raining. C entered the shop when it was busy and had been raining. She slipped and broke her ankle.
Held: the CoA decided that shop owners had taken reasonable care to ensure their customers were safe. They were not liable as they didn’t have a duty to make sure the shop was completely safe.

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20
Q

What does s.2(3) state

A

The occupier ‘must be prepared for children to be less careful than adults so the premises must be reasonably safe for a child of that age.’

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21
Q

Glasgow Corporation v Taylor

A

Facts: A 7-year-old child ate poisonous berries from a shrub in a public park and died
Held: The council should have fenced off the danger. The berries were an allurement.

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22
Q

If an allurement exists will the Occupier be liable?

A

If an allurement exists, the occupier will still be liable if they are aware injury could occur, even if they couldn’t predict the exact way it could occur. They won’t be liable if injury wasn’t foreseeable at all.

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23
Q

Jolley v London Borough of Sutton:

A

Facts: For two years children played in an abandoned boat which the council failed to move. Two boys jacked the boat up to repair it and the boat fell on one of them causing serious injury.
Held: The HoL’s stated the council were liable, even though it was not foreseeable exactly what the children would do on the boat, it was foreseeable that children would play in an abandoned boat and they had a duty to ensure their safety.

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24
Q

Liddle v Yorkshire CC

A

Facts: A child was injured when he jumped off a soil bank while showing off to his friends
Held: Despite the obvious allurement, the defendant was not liable since the occupier had warned the child away from the bank on numerous previous occasions.

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25
What if a very young child is injured?
The courts will be reluctant to find the Occupier liable as the child should have been under parental supervision
26
Phipps v Rochester Corporation:
Facts: A 5-year-old was playing on open ground owned by the council with his 7-year-old sister. He fell down a trench and became injured Held: The council was not liable as the occupier is entitled to expect that parents wouldn’t allow their young children to go to places which were potentially unsafe
27
Bourne Leisure v Marsden:
Facts: A 2 and a half year old boy drowned in a pond on a holiday park whilst under the care of his parents. The parents of the child sought a claim in occupiers’ liability against the park on the basis that they hadn’t been warned about the danger and the pond should have had a barrier or a fence surrounding it. Held: The holiday park was not liable. Whilst the parent were not at fault, that does not automatically impose fault on the defendants (the holiday park). The pond was an obvious danger.
28
What does s.2 (3)(b) state
An occupier will not be liable where a tradesman failed to guard against risks which they should know about or would be expected to know about
29
Roles v Nathan
Facts: two chimney sweeps died after inhaling carbon monoxide fumes. The sweeps had been warned of the danger Held: Occupiers were not liable as they were right to presume the chimney sweeps would have been aware of the dangers of carbon monoxide
30
What does s.2(4) show
That if the visitor is injured by a workman’s negligent work the occupier may have a defence and be able to pass the claim to the workman, thus making the workman liable not the occupier.
31
In order for the occupier to pass the claim to the workman three requirements must be satisfied:
1. It must be reasonable for the occupier to have given the work to an independent contractor 2. The contractor hired must be competent to carry out the task 3. The occupier must check the work has been properly done
32
Haseldine v Daw & Son LTD:
Facts: the claimant was killed when a lift plunged to the bottom of a shaft Held: The occupier was not liable for negligent repair or maintenance of the lift as this was work which was highly specialist and it was reasonable to give the work to a specialist firm
33
Bottomley v Todmorden Cricket Club:
Facts: The cricket club hired a stunt team to carry out a firework display. The stunt team (who were not insured) chose to use their own hand-made fireworks. The C they used for the stunt was inexperienced and was burnt and suffered a broken arm. Held: cricket club was not able to pass liability as they hadn’t carried out adequate checks
34
What are the 4 defences:
1. Contributory negligence 2. Volenti non fit injuria (consent) 3. Warning notices 4. Exclusion clauses
35
What is contributory negligence?
Where the claimant is partly responsible then the law reform act 1945 applies, and damages may be reduced according to the amount of the claimant’s fault
36
Yvonne Forrest v Iceland Foods LTD:
Facts: The C tripped on the raised edge of the entrance ramp outside Iceland as she made her way into the supermarket. Damages were agreed in advance at £150,000 Held: the court deducted 25% from C’s damages for contributory negligence as she was not looking where she as going.
37
What is violenti non fit injuria (consent):
There will be no liability where the claimant has consented to the danger. In order to use the defence of consent, the D must show: A. The claimant had full knowledge of the precise risk involved B. The claimant exercised free choice C. The claimant voluntarily accepted the risk
38
What are warning notices?
- This is a complete defence to the claim of occupiers’ liability. The warning can be oral or written - s.2(4) Occupiers’ Liability act 1957 states that a warning is ineffective unless ‘in all the circumstances it was enough to enable the visitor to be reasonably safe’ - If the premise have extreme danger or the danger is unusual, they may be required to put up additional warnings to ensure visitors are safe
39
Rae v Marrs (UK) LTD:
Held: a warning sign in a shed about a pit in the shed was not sufficient
40
What if the danger is obvious?
If the danger is obvious and the visitor is able to appreciate it, no additional warning is necessary
41
Staples v West Dorset District Council:
Facts: The claimant slipped on wet algae and claimed on the basis that there were no warning signs Held: The algae was obvious so no further warnings were required
42
What are exclusion clauses?
Under s.2(1) Occupiers’ Liability Act 1957 an occupier is able to ‘restrict, modify or exclude his duty by agreement or otherwise’. This means an occupier is able to limit or exclude his liability for any injury caused to the visitor.
43
What does s.65 Consumer Rights Act 2015 state?
‘A trader cannot by consumer notice exclude or restrict liability for death or personal injury resulting from negligence.’
44
What is a trespasser?
A trespasser is person who has no permission or authority to be on the occupier’s premises or a visitor who has gone beyond their permission on the premises.
45
What are the 2 areas under the 1984 act:
Adult and child trespassers
46
What does s1(1)(a) Occupiers’ Liability Act 1984 state
The occupier owes a duty to people who are not lawful visitors for personal injury only
47
The occupier will only a duty under s.1(3) if:
S.1(3)(a) - he is aware of the danger or has reasonable grounds to believe it exists S.1(3)(b) - he knows or has reasonable grounds to believe that there are trespassers in the vicinity S.1(3)(c) - the danger is one against which the occupier can be reasonably expected to provide some protection
48
Swain v Natui Ram Puri:
Held: The occupier was not liable as he did not have reasonable grounds to believe the child could or might enter the vicinity of the danger
49
What is the duty under s.(1)4
The duty is to take such care as is reasonable in the circumstances to see that the trespasser is not injured by the danger
50
What type of test is s.(1)4
It is an objective test which depends on the circumstances of each case e.g. the greater the risk, the more precautions the occupier is required to take
51
What are the 5 factors to consider when deciding liability
1. Obvious dangers 2. Time of day or year 3. Warning signs 4. Presence of a trespasser 5. Danger known
52
When will the occupier not be liable (obvious danger)
The occupier will not be liable if the trespasser is injured by an obvious danger
53
Ratcliff v McConell
Facts: a student jumped into an open-air swimming pool at night and suffered serious injuries Held: the CoA decided that he was not entitled to damages as the occupier was not required to warn adult trespassers of the risk of injury arising from obvious dangers
54
When will the occupier not be liable (time of day or year)
The occupier will not be liable if they did not expect anyone there at the time of day or year
55
Donoghue v Folkestone Properties
Facts: the claimant was injured whilst trespassing on a harbour in winter at midnight. He had dived into the sea and hit a grid which would have been visible in low tide. Held: the occupier didn’t owe the claimant a duty of care under the 1984 Act as they wouldn’t expect a trespasser to jump into the harbour at that time of the day and year
56
When will the occupier not be liable (warning signs)
The occupier will not be liable if warning signs are ignored, as the occupier doesn’t have to spend lots of money making premises safe from obvious dangers
57
Tomlinson v Congleton Borough Council
Facts: the council had put warning signs around their lake which prohibited swimming and driving. The council knew this was being ignored but had to postpone work to make the lake inaccessible due to a lock of funding. C was injured while swimming. Held: the CoA held that the council didn’t breach his duty as it’s unreasonable to expect the council to pay a lot
58
When will the occupier not be liable (presence of a trespasser)
The occupier will not be liable if he had no reason to suspect the presence of a trespasser
59
Higgs v Foster
Held: the occupier was not liable as they could not have anticipated the police officer’s presence on the premises
60
When will the occupier not be liable (danger known)
The occupier will not be liable if he was not aware of the danger or had no reason to suspect the danger existed
61
Rhind v Astbury Water Park
Held: the occupier did not know that there was a submerged fiberglass container in the waterpark lake
62
What rules apply to child trespassers
The same statutory rules apply to child trespassers as they do to adult trespassers
63
Keown v Coventry Healthcare NHS trust
Facts: An 11-year-old boy climbed up the fire escape on the outside of a hospital and fell Held: the hospital was not liable. The boy was aware of the danger when he climbed the fire escape and there was no issue with the state of the premises
64
Baldaccino v West Wittering:
Facts: A 14-year-old-boy suffered severe head injuries after he climbed a beacon on the beach during a low tide Held: The boy was a trespasser. The claim failed as there was no DOC to warn of obvious risks
65
What are the 3 defences?
1. Contributory Negligence 2. Consent (volenti) 3. Warning
66
Contributory negligence:
This reduces the damages payable to the claimant by a proportion. The judge decides this based on what they deem appropriate
67
Consent (volenti):
S.1(6) of the 1984 Act allows this defence if the trespasser is aware of the nature and degree of the risk. This defence is unlikely to be allowed if the claimant is just aware that the risk exists
68
Warning:
A warning may be an effective defence if the danger is stated in clear terms as in Westwood v Post Office. Whether the warning applies to child trespassers will depend on the age and understanding of the child
69
Give an example of a reform to occupiers liability
A state run compensation scheme paid for by an extra-tax on all property insurance policies
70
What can a lawful visitor claim for
Personal injury and property damage
71
What can a trespasser claim for
Personal injury only
72
What are the two types of damages
Pecuniary and non-pecuniary
73
What are pecuniary losses
Losses that can be quantified in monetary terms. E.g. medical expenses and wages They are covered by special damages, which compensate for specific identifiable financial loss
74
What are non-pecuniary losses
Losses that can not be easily quantified in monetary terms. E.g. pain and distress Covered by general damages which compensate for more subjective, non-monetary aspects of harm
75
How might the claimant be expected to pay:
The payment will either be in a lump sum or paid in instalments if D doesn’t have the funds to pay it all at once
76
What does C have a duty to do to the losses:
C has a duty to mitigate losses and keep the losses they can to a bare minimum

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