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FLK 1: Tort Law > Topic 9 - Occuipers liability > Flashcards

Topic 9 - Occuipers liability Flashcards

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1
Q
A
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2
Q

What is the primary focus of occupiers’ liability?

A

Loss caused by the state or condition of premises or actions during occupation.

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3
Q

Which Act governs the duty owed by occupiers to visitors?

A

Occupiers’ Liability Act 1957 (OLA 1957).

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4
Q

What governs the duty owed by occupiers to non-visitors?

A

Occupiers’ Liability Act 1984 (OLA 1984).

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5
Q

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

A

To take reasonable care to ensure visitors are reasonably safe on the premises.

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6
Q

Define ‘occupier’ according to OLA 1957.

A

Someone who has a sufficient degree of control over the premises.

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7
Q

What was established in Wheat v E. Lacon & Co [1966] AC 552?

A

An occupier can be anyone with sufficient control over the premises, not just the owner.

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8
Q

In Wheat v E. Lacon & Co, who were considered occupiers?

A

Both the owners and managers of the pub.

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9
Q

What does the term ‘premises’ include under OLA 1957?

A

Any fixed or moveable structure, including vessels, vehicles, or aircraft.

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10
Q

What is a visitor according to OLA 1957?

A

Persons lawfully on the property, including invitees and licensees.

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11
Q

Fill in the blank: Under OLA 1957, express permission and implied permission may be limited by _______.

A

notice.

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12
Q

What are the three ways an occupier can limit permission to visitors?

A
  • Area
  • Time
  • Purpose
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13
Q

What is implied permission?

A

Permission arising from an occupier’s behavior.

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14
Q

Who is considered a lawful visitor under OLA 1957?

A

Persons with lawful authority, like police officers with a warrant.

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15
Q

What happens if a visitor goes beyond the purpose for which they were invited?

A

They may become a trespasser.

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16
Q

What is the standard of care owed by an occupier under OLA 1957?

A

Reasonable care to ensure visitor safety.

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17
Q

True or False: Public right of way users are covered by OLA 1957.

A

False.

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18
Q

What did the case Pollock v Cahill [2015] EWHC 2260 (QB) establish regarding visitors?

A

Occupiers must consider known vulnerabilities of visitors.

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19
Q

What is the relationship between OLA 1957 and common law?

A

Claims are usually pleaded under both the statute and common law.

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20
Q

What must be proven to establish a breach of duty under OLA 1957?

A

That the occupier failed to take reasonable care.

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21
Q

How does the OLA 1984 differ in terms of duty owed compared to OLA 1957?

A

It governs the duty owed to non-visitors.

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22
Q

What is the significance of the case Ferguson v Welsh [1987] 1 WLR 1553?

A

It illustrates how a claimant can be a visitor to one occupier and a trespasser to another.

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23
Q

What is a key takeaway about multiple occupiers?

A

Different occupiers may have responsibility for different parts of premises.

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24
Q

What is the standard of care owed by an occupier?

A

The standard of care is that of the reasonable occupier and is an objective test.

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25
How does a visitor's personal characteristics affect the standard of care owed?
If the occupier is aware of a vulnerability of the visitor, they can be expected to take steps to guard against it.
26
What was the outcome of Pollock v Cahill [2015] EWHC 2260 (QB)?
The court held that the occupier must have regard to any known vulnerability, as the open window was unsafe for the blind claimant.
27
What is the standard of care owed to child visitors under the OLA 1957?
Child visitors are owed a higher standard of care.
28
What is the standard of care owed to persons entering premises in the exercise of their calling?
These persons are owed a lower standard of care under the OLA 1957.
29
What does Section 2(3)(a) OLA 1957 state about children?
An occupier must be prepared for children to be less careful than adults.
30
What was the case of Taylor v Glasgow City Council about?
A child died after eating poisonous berries, and the court held the defendant liable for failing to warn children.
31
What principle was confirmed in Jolley v Sutton LBC [2000]?
The court held the council liable for not ensuring the safety of an abandoned boat that attracted children.
32
What did Phipps v Rochester Corporation [1955] establish?
An occupier can assume a child will be subject to parental care, thus reducing their duty of care.
33
What does Section 2(3)(b) OLA 1957 indicate about skilled visitors?
An occupier can expect skilled visitors to appreciate and guard against risks ordinarily incidental to their job.
34
What was the outcome of Roles v Nathan (1963)?
There was no liability as the chimney sweeps failed to protect themselves against a normal risk of carbon monoxide.
35
What factors are considered in determining if a defendant has fallen below the standard of care?
Likelihood of harm, magnitude of harm, social value of the activity, and cost of preventative measures.
36
What must an occupier do to discharge their duty through warnings?
They must provide adequate warnings of any danger to keep visitors reasonably safe.
37
What is the legal test for the defence of consent (volenti) under the OLA 1957?
The claimant must be fully aware of the particular risk and willingly accept it.
38
What is contributory negligence as per the OLA 1957?
The degree of care and lack of care expected from the claimant is considered in the duty of care.
39
What is the general rule regarding the duty owed by an occupier to a visitor?
The duty is non-delegable, but occupiers may escape liability for independent contractors if certain conditions are met.
40
What are the three requirements for an occupier to escape liability concerning independent contractors?
* Reasonable hiring of the contractor * Reasonable selection of the contractor * Reasonable supervision of the work
41
What does the Occupiers’ Liability Act 1984 impose on occupiers?
A duty to take reasonable care to prevent injury to trespassers under certain conditions.
42
What types of loss is an occupier liable for under the OLA 1984?
Only for physical injury, including disease and impairment of physical or mental condition.
43
Fill in the blank: The OLA 1984 governs the duty owed by occupiers to _______.
non-visitors.
44
What does the OLA 1984 govern?
The duty owed by occupiers to non-visitors.
45
What types of injury is an occupier liable for under the OLA 1984?
* Physical injury * Disease * Impairment of physical or mental condition ## Footnote Property damage is not recoverable under the OLA 1984.
46
How is 'occupier' defined under the OLA 1984?
Persons who owe the duty referred to in section 2 of the Occupiers’ Liability Act 1957.
47
What is the definition of 'premises' under the OLA 1984?
Includes any fixed or moveable structure.
48
Define 'trespasser' according to the case of Robert Addie & Son v Dumbreck.
He who goes on to the land without invitation and whose presence is unknown or objected to.
49
What is the three-stage test to establish a duty of care under the OLA 1984?
* Aware of the danger * Knowledge that the other is in the vicinity * Reasonable to protect against the risk.
50
What must an occupier be aware of to owe a duty of care under the OLA 1984?
The occupier must be aware of the danger or have reasonable grounds to believe it exists.
51
What does 'knowledge that the other is in the vicinity' entail under the OLA 1984?
The occupier must know or have reasonable grounds to believe that someone is near the danger.
52
What must be considered to determine if it is reasonable to protect a trespasser against the risk?
* Nature of the danger * Age of the claimant * Nature of the premises * Purpose of the claimant * Foreseeability of trespassing.
53
What standard of care is imposed on occupiers under the OLA 1984?
The standard of care of a reasonable occupier.
54
What factors do courts consider when determining what constitutes reasonable care?
* Nature of the danger * Age of the claimant * Nature of the premises * Purpose of the claimant * Foreseeability of trespassing.
55
What can satisfy the duty of care under the OLA 1984?
Taking reasonable steps to warn of the danger or discourage persons from incurring the risk.
56
What is the defence of consent / volenti under the OLA 1984?
A defence where the claimant voluntarily accepts the risk of harm.
57
What is contributory negligence?
A partial defence where the claimant's own negligence contributes to their injury.
58
Is the defence of illegality preserved in the OLA 1984?
No, it is not preserved in the same way as the defence of consent.
59
What does section 2(1) of the OLA 1957 permit an occupier to do?
Extend, restrict, modify, or exclude their duty to visitors.
60
What does section 3 of the OLA 1957 state about exclusion clauses?
An occupier cannot exclude or restrict the common duty of care owed to third parties.
61
What is the purpose of section 3(1) OLA 1957?
To protect employees of a person who has contracted with the occupier.
62
What does the Unfair Contract Terms Act 1977 restrict?
The use of exclusion clauses to limit liability for negligence.
63
What types of liability does UCTA 1977 apply to?
'Business to business' liability.
64
What does UCTA 1977 restrict regarding exclusion clauses?
Exclusion of liability for negligence, including breach of duty under the OLA 1957 ## Footnote UCTA 1977 applies to 'business to business' liability.
65
In UCTA 1977, what is the restriction on liability for death or personal injury?
A person cannot exclude/restrict their liability for death or personal injury resulting from negligence (Section 2(1)) ## Footnote This applies regardless of the context of the liability.
66
What is required for a person to exclude/restrict liability for other losses under UCTA 1977?
The term/notice must satisfy the requirement of reasonableness (Section 2(2)) ## Footnote The requirement of reasonableness considers all circumstances at the time of liability.
67
Define the ‘requirement of reasonableness’ as per UCTA 1977.
It should be fair and reasonable to allow reliance on the notice, considering all circumstances ## Footnote Refer to the case of Smith v Bush for factors influencing reasonableness.
68
What does the Consumer Rights Act 2015 (CRA 2015) restrict?
The use of exclusion clauses/notices to exclude or limit liability for negligence ## Footnote This applies when the defendant acts as a trader and the claimant as a consumer.
69
What does Section 65(1) of the CRA 2015 state?
A trader cannot exclude/restrict their liability for death or personal injury resulting from negligence ## Footnote This aligns with the restrictions in UCTA 1977.
70
Under the CRA 2015, what is required for a trader to exclude/restrict liability for other losses?
The term/notice must be fair (Sections 62(1) and (2)) ## Footnote Fairness is judged against the good faith requirement.
71
What constitutes an unfair term under Section 62(4) of the CRA 2015?
A term that causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer ## Footnote This applies contrary to the requirement of good faith.
72
What is the common law restriction if neither UCTA 1977 nor CRA 2015 applies?
Restrictions could be judged against the principle of ‘common humanity’ ## Footnote This is illustrated in British Railway Board v Herrington.
73
What is the minimum legal standard of care established in British Railway Board v Herrington?
A conscientious person with the defendant’s knowledge, skill, and resources should take reasonable steps to avoid accidents ## Footnote This standard cannot be excluded by agreement or notice.
74
What does the OLA 1984 state about exclusion or limitation clauses?
The Act is silent on whether it is possible to exclude liability ## Footnote There are arguments regarding minimum standards and fairness to trespassers.
75
What are the two arguments regarding liability under the OLA 1984?
* The OLA 1984 lays down a bare minimum that cannot be evaded * Excluding liability would be unfair to lawful visitors ## Footnote This reflects the policy of the OLA 1984.
76
Would the provisions of UCTA and CRA apply under the OLA 1984?
No, they would not apply ## Footnote The same common law restriction as the OLA 1957 likely applies.

FLK 1: Tort Law (12 decks)

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