10. Occupiers Liability

Question 1

Relevant Act governing an occupier’s liability to a visitor

Answer 1

Occupiers’ Liability Act 1957

Question 2

Proving an occupier’s liability to a visitor: Steps

Answer 2

1. Establish they have suffered loss due to the state of the premises
2. Identify the occupier
3. Prove that they are a visitor
4. Establish the occupier failed to take reasonable care for their safety

Question 3

Definition of an ‘occupier’ in case law

Answer 3

Someone who has a ‘sufficient degree of control over premises’

Question 4

Can a non-owner of a premises be an ‘occupier’

Answer 4

Yes, if they have sufficient control over the premises (eg. managers of a pub who are lodgers in the rooms above)

Question 5

Can an owner who is absent (like a landlord) be an ‘occupier’

Answer 5

Yes, for the parts that they retain control over (eg. a common staircase between the flats)

Question 6

Can there be more than one occupier of the same premises

Answer 6

Yes

Question 7

Can independent contractors working in a client’s home satisfy the definition of occupier?

Answer 7

Yes, they exercise control over the area where they are working (along with the owner) - depends on degree of control through

Question 8

1957 Act: Definition of ‘Visitor’

Answer 8

Visitors are those who have express or implied permission to be on the occupiers land
- includes those who enter under the terms of a contract
- includes those who enter in order to exercise any right conferred by law

Question 9

What happens when a visitor ‘exceeds’ the limits of their permission to enter a property?

Answer 9

They become a trespasser and will likely fall under the 1984 act

Question 10

1957 Act: Definition of Premises

Answer 10

Open land as well as fixed or moveable structures, including vessels, vehicles or aircraft

Question 11

Duty of care owed by an occupier to a visitor

Answer 11

Duty to take such care as in reasonable in all the circumstances to see that the visitor is reasonably safe in using the premises for the purposes for which they are permitted to be there

Question 12

Standard of care required for an occupier to not be in breach

Answer 12

Occupier must meet the standard of a reasonable occupier, taking into account:
- nature of danger
- purpose of visit
- seriousness of injury risked
- magnitude of risk
- cost and practicality of steps required to avoid danger
- how long the danger had been on the premises

Question 13

Which visitors get ‘special treatment’ under the 1957 Act

Answer 13

1. Children: require a higher degree of care
2. Visitors who come into the premises to exercise their skills (occupier can reasonably expect them to guard against risks included in their job)

Question 14

Special considerations when assessing the standard of care required for ‘child’ visitors

Answer 14

1. Where danger is allurement, this increases the standard of care
2. Parental responsibility can reduce / eliminate liability for occupiers for harm suffered to very young children - if they would reasonably expect the child to be accompanied

Question 15

When will providing a ‘warning’ allow the occupier to avoid being in breach of their duty to their visitors

Answer 15

If the warning is adequate (question of fact)

Question 16

What will the court consider in assessing whether a warning is adequate

Answer 16

1. Nature of warning (how specific - does it mention the type of danger)
2. Nature of the danger (If it is hidden, must be more specific warning)
3. The type of visitor (written warning to child may not be sufficient)

Question 17

If the occupier has an ‘exclusion’ notice (excluding liability), will this help them avoid being found liable for breach?

Answer 17

No, but it may provide a defence once the visitor has established the breach

Question 18

When will an occupier NOT be liable for injury caused to a visitor due to faulty work by an independent contractor

Answer 18

1. occupier acted reasonably in entrusting the work to an independent contractor
2. occupier took steps they reasonably should have in order to satisfy themselves that the contractor was competent and
3. occupier took steps they reasonably should have to ensure the work had been properly done

Question 19

What type of ‘faulty work’ by an independent contractor will shift the burden onto the contractor instead of the occupier if it is faulty

Answer 19

Work must be work of construction, maintenance, or repair

Question 20

Steps an occupier can take to satisfy themselves that their contractors are competent

Answer 20

1. obtain references
2. make enquiries locally and of trade associations about the contractor

Question 21

Rules for Causation and Remoteness of Damage wrt occupiers liability claims

Answer 21

The same for all torts (same as negligence)

Question 22

Defences for an occupier who is found to have breached their common duty of care

Answer 22

1. Consent
2. Exclusion of liability
3. Contributory Negligence

Question 23

What must the occupier prove to argue the defence of ‘consent’

Answer 23

That the visitor knew of the precise risk that would cause the injury and proved by their conduct that they willingly accepted the legal risk

Question 24

Requirements for an exclusion notice to successfully provide a defence to an occupier

Answer 24

1. reasonable steps must have been taken to bring the notice to the claimant’s attention before the tort was committed
2. the wording of the notice must cover the loss suffered by the claimant

Question 25

Are private occupiers subject to the provisions of UCTA / CRA?

Answer 25

No

Question 26

Who is subject to UCTA wrt occupiers attempting to exclude liability for negligence

Answer 26

Business occupiers attempting to exclude or restrict liability to non-consumers (ie. other businesses)

Question 27

Who is covered by CRA wrt occupiers exclusion notices

Answer 27

Traders attempting to exclude or restrict liability for negligence to consumers
- consumers: individuals acting for purposes that are wholly or mainly outside of their trade, business ,craft or profession

Question 28

Which act governs the duty owed by occupiers to trespassers (non-visitors)

Answer 28

the Occupiers’ Liability Act 1984

Question 29

Can an individual be a trespasser if they are NOT aware that they are entering premises without consent

Answer 29

Yes they can still be a trespasser

Question 30

Can an entrant to a building begin as a visitor and later BECOME a trespasser?

Answer 30

Yes, if they enter and then do something which their permission does not cover (ie. going into a staff room in a store they do not work at)

Question 31

Aside from trespassers, who else is covered by the 1984 act as ‘non-visitors’

Answer 31

1. people entering under an access agreement or order under the National Parks and Access to the Countryside Act 1949
2. People who enter land pursuant to the Countryside and Rights of Way Act 2000
3. People who exercise private rights of way over land

Question 32

Who is excluded from protection from the 1984 Act AND the 1957 act

Answer 32

Persons using a public right of way such as a highway
- But if highway is maintained at public expense the users are protected by the Highways Act 1980

Question 33

Does a duty of care towards a non-visitor arise automatically under the 1984 act?

Answer 33

No, it is subject to conditions

Question 34

Conditions for an occupier to have a duty of care towards a non-visitor

Answer 34

1. occupier is aware of danger or has reasonable grounds to believe it exists
2. occupier knows or has reasonable grounds to believe the trespasser is in the vicinity of the danger concerned or that they may come into the vicinity of the danger; and
3. the occupier is reasonably expected to offer this person some protection against the right

Question 35

What is required to prove an occupier has ‘reasonable grounds to believe’ in the danger / that trespasser is in its vicinity / may come into its vicinity

Answer 35

This requires actual knowledge of facts which would lead a reasonable occupier to be aware of the danger or presence of the trespasser

Question 36

What will the courts consider when assessing whether it was reasonable for the occupier to offer the trespasser some protection?

Answer 36

1. Nature and extent of the risk (more serious = more likely it is reasonable)
2. type of trespasser (more likely it is reasonable for children / inadvertent trespassers)
3. cost and practicality of precautions

Question 37

Factors which limit the scope of the occupier’s duty to non-visitors

Answer 37

1. The 1984 is concerned with liability due to state of the premises, not activities on the premises
2. Duty is owed only in respect of ‘injury’ covering both physical and mental impairments - not damage to trespasser’s property

Question 38

Duty of the occupier to non-visitors (if all criteria is satisfied)

Answer 38

The duty is to take such care as is reasonable in all the circumstances to see that the trespasser does not suffer injury on the premises by reason of the danger concerned

Question 39

Factors court will consider when assessing whether the occupier has breached their duty of care to the non-visitor

Answer 39

1. nature of danger
2. age of trespasser
3. nature of premises
4. extent of the risk
5. cost and practicality of precautions
6. nature and character of the entry (ie. burglar etc.)
7. gravity and likelihood of injury
8. foreseeability of the trespasser (more foreseeable, more precautions required)

Question 40

Can warnings be used by occupiers to discharge their common duty to non-visitors?

Answer 40

Yes

Question 41

1984 Act : Meaning of ‘discouragements’

Answer 41

Putting a barrier to prevent the trespasser from coming in physical contact with the danger

Question 42

Applicability of allurements and parental responsibility as mitigating factors for the 1984 and 1957 Acts

Answer 42

Apply to both acts

Question 43

Defences for claims under the 1984 Act

Answer 43

1. Consent
2. Exclusion of Liability (dubious whether this applies to the 1984 Act)
3. Contributory Negligence

Question 44

If a claim is made under the 1984 Act, can the occupier raise the defence that they have excluded liability?

Answer 44

1. Not specifically allowed in the Act
2. If they can, UCTA ,CRA etc do not apply

Question 45

Is illegality a permitted defence for claims against occupiers brought under the 1984 Act

Answer 45

NO (interestingly?)