11 - TORT - Occupiers Flashcards
Whatโs the difference between OLA 1957 & 1984
OLA 1957 applies to visitors ๐
OLA 1984 applies to non-visitors ๐น
What does OLA apply to?
State of land ๐ก, not activity ๐คฟ
So 18 year old diving into shallow lake was not an OLA issue as it was the activity that was dangerous, not the land.
What is occupiers liability for visitors?
- Occupier of premises owes common DoC to all visitors to take
-
reasonable care that visitor will be
โ๏ธ๐ซ -
reasonably safe in using premises
โ๏ธ๐ช -
for purpose, for which they were permitted
๐
What can be claimed for under OLA 1957 for visitors?
- Personal injury ๐ค
- Property damage ๐๏ธ
What are the requirements to prove a DoC for occupiers liability for visitors?
- Is D an occupier? ๐ซ
- Is D occupier of premises?๐ซ๐ก
- Is C a visitor?๐
How is โoccupierโ defined?
Someone w/ sufficient degree of control over premises - doesnโt have to owner, can be occupier
4 Categories:
1. If landlord doesnโt live there, tenant is occupier ๐ซ
2. If landlord retains some part of premises, theyโre occupier of those parts ๐ช๐ฉ
3. If landlord issues a licence, they remain occupier ๐๐ฉ
4. If occupier employs independent contractor, generally remain responsible
๐ท๐ฉ
What is the case on occupier?
Counsel A asked B to carry out building works but not to subcontract. B hired C who was injured. C was a visitor for B but not for A.
โช๏ธโก๏ธ๐ทโโ๏ธโก๏ธ๐ทโโ๏ธ๐
How is โpremisesโ defined?
Any fixed or moveable structure including vessels, vehicles or aircraft (includes a ladder)
๐ โ๏ธ๐๐ฅ๏ธ๐ช
How are โvisitorsโ defined?
๐
- Any person w/ express ๐๏ธor implied ๐คซpermission to be on premises ๐ก
- This can be limited by notice, so visitor becomes trespasser e.g. by area, time or purpose
What are the cases on whether someone was a visitor?
- sign can exclude from area - child in animal enclosure of circus and attacked by a lion, no signs saying this was private and so a visitor. ๐ช๐ถ๐ฆ๐
- inconspicuous sign by national trust with other info saying stay away from lake was not enough. ๐ณ๐๐ชง๐๐
- restrict by time - drinker at a lock-in in a pub was still a visitor even after hours. ๐ป๐ฐ๏ธ๐
- restrict by purpose - made clear to C that lake was for canoeing, fishing & windsurfing. C swam which made him a trespasser. ๐๐ถ๐คก๐โโ๏ธ๐น
What are the cases on implied permission?
๐คซ
- used shortcut for 35 years, attacked by horse, found to be a visitor ๐ด ๐ฅ ๐ถโโ๏ธ ๐
- railway fence repeatedly cut and mended - 9 year old hit by a train - did not have implied permission. ๐ค๏ธ๐ฆ๐๐น
Are users of public footpaths considered to be visitors?
No ๐ถ๐น
Delete
To take such care as is reasonable so visitor will be reasonably safe in using premises for purpose for which they were permitted
Where occupier is aware of certain vulnerabilities, they can reasonably be expected to take such steps to guard against it
How is standard of care for OLA 1957 changed for children and persons entering in exercise of their calling?
- Children: higher standard of care (where reasonable, can assume a child subject to parental care)
- Persons Entering etc: lower SoC - reasonably expect them to appreciate & guard against risks incidental to their job
What are the cases on standard of care for visitors?
- child eat poisonous berries from a bush. Counsel took no action to warn despite allurement so liable ๐
- 14 year old claimant repaired abandoned boat which fell on him. Counsel liable as boat was an allurementโต๏ธ
- 5 year old fell down a hole which would have been obvious to an adult - D allowed to assume that young children would be accompanied by an adult.
๐๏ธ๐ฉโ๐ฆ๐ณ๏ธ๐คฆโโ๏ธ - chimney sweeps expected to know that they need to extinguish a boiler ๐จ๐ท๐คฆโโ๏ธ
What are the cases on whether standard of care met for visitors?
- D inspected walkway from Jacuzzi to swimming pool. C slipped, D found to have done all reasonable ๐๐ง๐
- raining caused takeaway floor to be wet, had mat, non-slip tiles and mopped regularly, D did all reasonable.๐ง๏ธ๐๐ซ
How can duty be discharged under OLA 1957?
With warnings: ๐ชง
if they warn visitor of danger & are enough to be reasonably safe by describing:
- what danger is โผ๏ธ
- where danger is: ๐and
- how to avoid it ๐
This will satisfy common DoC
Very obvious dangers donโt always require warnings e.g. falling off sea wall๐คฆโโ๏ธ
What is the case regarding warnings for visitors?
- owner told chimney sweeps about the boiler - sufficient warning
๐จ๐ท๐คฆโโ๏ธ
What other effect may warnings have?
May exclude from area therefore making the person a trespasser.
๐๐ชง๐น
How can duty owed to visitors be discharged through independent contractors?
General Rule: duty owed to visitors is non-delegable
Exception: independent contractors
a) Hiring IC must be reasonable ๐ทโ๏ธ
b) Selecting IC - must be reasonable choice ๐ท๐
c) Supervising & Checking work: only what is reasonable ๐
What are the cases regarding contractors?
Contractor to deal with:
- lift maintenance - discharged liability ๐
- Icy step - did not discharge liability ๐ง
Once loss and breach shown for OLA 1957 for visitors, what is assumed?
๐ Causation & remoteness to be satisfied
What defences are there under OLA 1957 for visitors?
- consent ๐ค
- contributory negligence ๐ค๐ณ๏ธ
- illegality ๐ฎ
What case shows consent defence under OLA 1957 for visitors?
๐ค๐
- notices at car rally for danger but not for inadequate barrier - no defence
๐ชง๐๏ธ๐ฅโ ๏ธ - 15 year old consented to risk when squeezing through gap in fence onto live railway ๐ค๏ธโก๏ธโ ๏ธ