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Company Law > 11) Occupiers' Liability > Flashcards

11) Occupiers' Liability Flashcards

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1
Q

Duty of care for occupiers liability

A

Largely governed by statute.
* Occupiers’ Liability Act 1957
* Occupiers’ Liability Act 1984

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2
Q

Occupiers; Liability Act 1957

A

Governs the duty owed by occupiers to visitors

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3
Q

Occupiers’ Liability Act 1984

A

Governs the duty owed by occupiers to non-visitors.

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4
Q

Occupiers’ liability is concerned with…

A

Loss caused by the state or condition of premises or things done or omitted to be done during the occupation of such premises

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5
Q

Occupiers liability = an extension

A

An extension to the traditional rules of negligence

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6
Q

Claims at occupiers liability made at

A
  • Occupiers Liability Act and common law
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7
Q

Scope of Occupiers’ Liability Act 1957

A
  • Act governs duty owed by occupiers to visitors.
  • Duty relates to the “state of premises” rather “an activity” on the premises.
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8
Q

Tomlinson v Congleton 2004

A
  • The 18 year old claimant dived into shallow water of a lake.
  • Hit his head and sustained an injury
  • HoL held risk was from claimant diving and not from state of premises.
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9
Q

Under the OLA 1957 a visitor can claim…

A

Both
* Personal Injury
* Property damage

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10
Q

Duty of care under Occupiers’ Liability Act 1957

A

Occupier of premises owes the common duty if care to all their visitors.
section 2(1) OLA 1957

Reasonable care and reasonably safe for use of the purposes - duty is to keep the visitor reasonably safe.

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11
Q

Following s2(1) there are three terms to understand if DoC applies OLA 11957

A
  • Occupier
  • Premises
  • Visitor
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12
Q

OLA 1957 - Occupier

A
  • Duty is on the occupier of the premises
  • Section 1(2) OLA 1957 states occupier = under common law.
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13
Q

Occupier

A

Someone who has sufficient degree of control over the premises.
Wheat v Lacon 1966
Sufficiency of control is a question of fact.
Someone who is not the owner of the premises can still be occupier.

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14
Q

Wheat v Lacon 1966

A

Someone has a sufficient degree of control

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15
Q

Wheat v Lacon 1966 - L Denning

A

Whereevera person has a sufficient degree of control over premises that he ought to realise any failure on his part to use cate may result in injury to a person coming lawfully there, then he is an occupier.

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16
Q

Wheat v Lacon 1966 - Categories of occupier

A
  • landlord does not live on property; tenant = occupier
  • Landlord retains some parts of the premises, they are the occupier of those parts
  • Landlord issues a licence, they remain an occupier
  • Occupier employs and indepenedent contractor they are generally still responsible
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17
Q

Bailey v Armes 1999

A
  • Liability is based on occupancy or control, not an ownership.
  • Who is actual possession
  • Immediate supervision, control and power of permitting / prohibiting entry
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18
Q

Multiple Occupiers

A
  • Wheat v Lacon 1966
  • Not necessary for a person to have entire control over the premises
  • Must have sufficient control
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19
Q

Ferguson v Welsh 1987

A

Council wanted building demolishing - and prohibited sub-contracting.
But was sub-contracted, claimant sustained injury. Sued all. HoL held they were a lawful visitor for Mr Spence, but trespasser for council

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20
Q

OLA 1957 - Premises

A
  • Doe not include land and buildings
    s1(3)(a)
    “any fixed or moveable structure, including any vessel or aircraft”
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21
Q

Wheeler v Copas 1981

A

Ladder = premises

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22
Q

OLA 1957 - Visitors

A

Occupier owes an automatic duty to visitors - persons lawfully on the property.

Section 1(2) OLA 1957 - “ persons who would at common law be treated as…invitees and licensees”

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23
Q

Under common law, visitors are ….

A
  • Persons have express or implied permission to be on the occupier’s premises.
  • Includes hose with lawful authority and contractual permission.
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24
Q

Express Permission

A

May be limited by notice - visitor becomes a trespassor.
Limitations made by: Area, Time, Purpose

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25
Q

Express Permission - Area

A

Occupiers must be clear as to which area visitors have access to.
Pearson v Coleman Bros 1948

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26
Q

Pearson v Coleman Bros 1948

A

Attacked by a lion
No signs saying not to access.
= visitor

27
Q

Darby v National Trust 2001

A

Inconspicuous sign in a car park saying there should be no bathing in the pond.
No sign at the pond.
Car park was not next to the pond.
Not enough to turn claimant into trespasser.

28
Q

Express Permission - Time

A

An occupier can restrict entry by imposing a time limit (opening hours), but it must be made clear to the visitor.

29
Q

Stone v Taffe and Another 1974

A

Manager of a pub permitted a function to be held upstairs after licensing ours.
Gues fell down the stairs = visitors.

30
Q

Express Permission - Purpose

A
  • Invitee goes beyond the purpose they were invited fore - become trespasser.
31
Q

Tomlinson v Congleton 2003

A

Claimant was to use the lake for canoeing, fishing and windsurfing only.
Swimming in lake = trespassing

32
Q

Implied Permission

A

Exists because of an occupiers’ behaviour.
eg Postman has implied permission to be on a person’s property.
May be limited by notice.

33
Q

Lowery v Walker 1911

A
  • Public used defendants land as a shortcut for 25 years
  • New took no action to prevent = implied licence.
  • Attacked by wild horse.
34
Q

Edwards v Railway Executive 1952

A
  • Spot on the railway = shortcut
  • Fence repaired, but repeatedly beaten down.
  • Fence in good repair.
  • Child hit by train = trespass
35
Q

Lawful authority

A

s2(6) OLA 1957
Warrant or statutory right can enter premises as lawful visitors with or without permission.

36
Q

Contractual authority

A

s5(1) OLA1957
If a person enters premises under terms of contract with the occupier, absence of express provision to the contrary = implied term that DoC owed

37
Q

Public rights of way

A

Footpaths are not covered by either the OLA 1957 or OLA 1984 - therefore reliant on common law.

38
Q

Private rights of way

A
  • Are covered by OLA 1984
  • Not cover the OLA 1957
    Differences in terms of DoC owed
39
Q

National Parks & Access to the Countryside Act 1949

A

Not regarded as visitors under the OLA 1957, but owed a duty under the OLA 1984

40
Q

Countryside and Rights of Way Act 2000

A

Codified “right to roam”

41
Q

OLA 1957 - Breach - Standard of Care

A

Reasonably safe for using the premises for the purposes for which they were permitted by the occupier to be there
s2(2) OLA 1957

42
Q

Standard of Care -

A

Therefore that of the reasonable occupier
This is an objective test

43
Q

Visitor - Standard of care - personal characteristics

A

A visitor may have personal characteristic effecting the standard of care reasonably expected

Pollock v Cahill 2015

44
Q

Pollock v Cahill 2015

A

Blind claimant visited his friend
Fell out of second floor window
Occupier must have had regard to any known vulnerability.
Defendant should have warned the claimant or kept the window closed.

45
Q

Child visitors

A

Owed a higher standard of care
OLA 1957

46
Q

Exercise their calling

A

Persons entering premises in the exercise of their calling (to exercise their skills)
Owed a standard of care under OLA 1957

47
Q

OLA 1957 - standard of care

A
  • Reasonable standard
  • Respective adjustments for personal circumstance
  • Child
  • Persons to exercise their skills
48
Q

section 2(3)(a) OLA 1957

A

“an occupier must be prepared for children to be less careful than adults”

49
Q

Taylor v Glasgow City Council 1922

A

Poisonous berries eaten by child
Liability = no action to warn children of danger.
Bush = allurement
Should have been fenced off
= Breach of SoC

50
Q

Usefulness of s2(3)(a) OLA 1957

A
  • Higher duty of care for children diminished by the courts sometimes finding that an occupier is entitled to rely on the supervisory role of parents
51
Q

Phipps v Rochester Corporation 1955

A
  • Where reasonable occupier is entitled to assume the child will be subject to parental care
  • Blackberrying child fell down a trench - would have been obvious to an adult.
  • Defendants satisfied duty of care as was safe for a parent and child
52
Q

s 2(3)b

A

Occupier can reasonably expect a visitor coming onto their premises to exercise their skills, guard against ordinary risks
* Less is expected of occupiers in relation to skill visitors
* Occupier does not take care to protect against normal risks incidental to their job.

53
Q

Roles v Nathan (Trading as Manchester Assembly Rooms) 1963

A

Chimney sweeps cleaning out flues of an old boiler.
Tried to do so without extinguishing.
Died from carbon monxide gas.
No liability as is a risk that would normally be guarded against.

54
Q

Test for falling below the standard of care?

A

Negligence claim:
* Likelihood of harm
* Magnitude of harm
* Social value of the activity
* cost of preventative measures
Balanced
* Will take resources available into account

55
Q

Tedstone v Bourne Leisure Ltd

A
  • Woman slipped on a patch of water on the way to swimming pool
  • Reasonable precautions
  • Reasonable occupier would not have done more
56
Q

Laverton v Kiapasha 2002

A
  • Raining and defendant takeaway floor was wet.
  • Defendant did all expected - tiles, doormat and mopping.
  • More might have been expected from a larger business
    Resources taken into account
57
Q

Common duty of care

A

An occupier will satisfy common duty of care if they warn the visitor of danger and the warning was enough to make the visitor reasonably safe

  • s2(4)(a) OLA 1957
58
Q

s2(4)(a) OLA 1957

A

Common duty of care
Warning of danger, if enough

59
Q

Adequate warning of danger

A
  • What the danger is
  • How to avoid it
    Fact in each case as to whether enough. Depends on danger, scope, content and form.
60
Q

Roles v Nathan

A
  • Denying liability
  • Occupier warned the sweeps of the danger of fumes
  • Extinguished the boiler
  • Physically removed the sweeps
  • Warnings were enough.
61
Q

Very obvious dangers may require warnings

A

Staples v West Dorset District
* Obviously a slippery sea wall covered in algaeq

62
Q

Dual effect of warning notices

A
  • Exclusion notice
  • Warning of the danger
63
Q

Discharging the duty through independent contractors.

A
  • Generally this DoC is non delegable
  • Where building / construction is undertaken by a contractor may escape liability if satisfy the hree requiremetns.
64
Q
A

Company Law (11 decks)

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