Occupiers' Liability Flashcards
(16 cards)
What is occupiers’ liability?
This tort covers the liability of occupiers for premises to those who are on the premises
It’s a strict liability regime covered by statute
- It follows a similar structure to negligence (duty, breach, causation, defences)
- It protects both visitors and trespassers in some situations
For occupiers’ liability towards visitors, in overview only, what are the required elements?
- State of premises must have injured the claimant
- An occupier
- A visitor
- Common duty of care
- A breach of duty
- Causation
- Consider defences
Give more details on state of premises
C must have been injured by the state of the premises
- C needs to show they have suffered loss due to state of premises
- Something is defective with the land/building and leads to the injury
Give more details on who is an occupier
An occupier is someone with sufficient degree of control over premises
- This is the defendant
Control is a broad test and considers who allows people in/out and who maintains the premises
- Can be an occupier of one part of the premises and another
- Independent contractor working on one part for example
Give more details on when someone is a visitor
A visitor is someone with express or implied permission to be on the premises
- This is the claimant
Express – invited onto the grounds
Implied – grounds open to public generally
- Usually someone who enters to communicate has implied permission, unless a sign tells them not to come - Postmen allowed for example
- Can exceed permission (by going in staff only area for instance) + they become a trespasser
Give more details on the common duty of care
Common = same duty owed to all visitors
Occupier must take reasonable care in all the circumstances to ensure that the visitor is reasonably safe for using the premises for the purpose they are permitted to be there
- Duty applies equally to property damage and personal injury + death
What is initially required for there to be a breach of duty? As an overview, what factors are looked at to determine if there has been a breach?
1) For a breach, there must be a lack of reasonable care in all the circumstances for visitor’s safety
- These circumstances include what is known about risks and precautions and balancing the two
2) Factors from negligence – standard of reasonable occupier considered
- Nature of danger – hidden/obvious + degree of danger
- Extent of risk – high/low
- Cost and practicality of precautions
3) Factors from statute
- Type of visitors
- Warnings
- Independent contractors
How might the type of visitor affect the likelihood of a breach of duty?
1) Children – standard of care expected increases for them
- Allurements – children enticed by things, so occupier must take additional precautions to protect children in light of these
- Parental responsibility – occupiers can expect very young children to be supervised by parents
- Occupiers who make the premises reasonably safe for a child accompanied by a guardian, where they can expect accompaniment, will satisfy the duty
2) Skilled visitors – standard of care expected would go down
- Occupier wouldn’t be expected to warn an electrician about electric issues
- Risks incidental to their role are not occupier’s responsibility
How might warnings affect the likelihood of a breach of duty?
Occupier can discharge duty if warnings are adequate and specific
- Consider if danger is hidden/obvious and type of visitor is relevant here too
- Nature of warning – specific warning more likely adequate
How might the presence of independent contractors affect the likelihood of a breach of duty?
if occupier hires them, they will have discharged their common duty of care, provided the following are met:
- 1) Occupier must be reasonable in trusting the work to them
- 2) Occupier must take reasonable steps to satisfy themselves that the contractor was competent
- 3) Occupier took reasonable steps to satisfy themselves that the work was properly done – more technical, the less reasonable it is for the occupier to check it - Must be work of construction, maintenance or repair
Give more details on causation and defences
1) But for test applies and intervening acts apply
2) Defence of consent and contributory negligence could apply too
3) Can rely on an exclusion clause where:
- Reasonable steps must have been taken to bring the exclusion notice to the claimant’s attention before the tort was committed.
- The wording of the notice must cover the loss suffered by the claimant.
- Cannot exclude liability for PI or death
For occupiers’ liability towards trespassers, in overview only, what are the required elements?
- Trespasser must be injured due to state of premises
- Occupier must be in control of premises
- Trespasser
- Duty of care (not a common duty)
- Breach of duty
- Causation
- Defences
Give more details on when someone is a trespasser
Trespasser has no express or implied permission to be there
- Permission might have been exceeded in time, space or purpose of being there
- Trespasser’s knowledge of whether they are trespassing or not is irrelevant - the focus is on what the occupier has done
When will a duty of care be owed to trespassers?
Only owed if:
1) D knows or reasonably ought to have known of the danger; and
2) D knows or has reasonable grounds to believe that the trespasser is in the vicinity of the danger concerned; and
3) D is reasonably expected to offer protection
- More serious the risk, the more likely it is that some protection will be ‘reasonable’
- Cost and practicality of precautions considered in finding duty
- Duty, if owed, only applies to personal injury + death, not property
When will an occupier have breached their duty to trespassers? What factors are considered in reaching this conclusion?
Lack of reasonable care in all the circumstances to ensure the trespasser does not suffer injury by reason of the danger
Factors from negligence
- Nature of danger – hidden/obvious + degree of danger
- Extent of risk – high/low
- Cost and practicality of precautions
Factors from statute
- Warnings – can discharge duty – often inadequate for children
- Children – standard of care expected raises for them
- (i) Also consider allurements – children enticed by certain risks
- (ii) Parental responsibility – occupier can expect parents to supervise young children
Give more details on causation and defences for trespassers
Causation and defences – same as for negligence
- Consent OK
- Likely cannot exclude liability to trespassers
- However, defence of illegality does not apply to trespassers - So, they have a remedy if injured when committing a crime for instance
