11 - TORT - Occupiers Flashcards
What’s the difference between OLA 1957 & 1984
OLA 1957 applies to visitors 👋
OLA 1984 applies to non-visitors 👹
What does OLA apply to?
State of land 🏡, not activity 🤿
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
⚖️🫂 -
reasonably safe in using premises
⚖️🪖 -
for purpose, for which they were permitted
👋
What can be claimed for under OLA 1957 for visitors?
- Personal injury 🤕
- Property damage 🏚️
What are the requirements to prove a DoC for occupiers liability for visitors?
- Is D an occupier? 👫
- Is D occupier of premises?👫🏡
- Is C a visitor?👋
How is ‘occupier’ defined?
Someone w/ sufficient degree of control over premises - doesn’t have to owner, can be occupier
4 Categories:
1. If landlord doesn’t live there, tenant is occupier 👫
2. If landlord retains some part of premises, they’re occupier of those parts 🪜🎩
3. If landlord issues a licence, they remain occupier 🔐🎩
4. If occupier employs independent contractor, generally remain responsible
👷🎩
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.
⛪️➡️👷♂️➡️👷♀️🙈
How is ‘premises’ defined?
Any fixed or moveable structure including vessels, vehicles or aircraft (includes a ladder)
🏠✈️🚙🛥️🪜
How are ‘visitors’ defined?
👋
- Any person w/ express 🎙️or implied 🤫permission to be on premises 🏡
- 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. 🎪👶🦁👋
- inconspicuous sign by national trust with other info saying stay away from lake was not enough. 🌳🔎🪧🐟👋
- restrict by time - drinker at a lock-in in a pub was still a visitor even after hours. 🍻🕰️👋
- restrict by purpose - made clear to C that lake was for canoeing, fishing & windsurfing. C swam which made him a trespasser. 🐟🛶🤡🏊♂️👹
What are the cases on implied permission?
🤫
- used shortcut for 35 years, attacked by horse, found to be a visitor 🐴 🥊 🚶♂️ 👋
- railway fence repeatedly cut and mended - 9 year old hit by a train - did not have implied permission. 🛤️👦🚆👹
Are users of public footpaths considered to be visitors?
No 🚶👹
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 🍒
- 14 year old claimant repaired abandoned boat which fell on him. Counsel liable as boat was an allurement⛵️
- 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.
🏗️👩👦🕳️🤦♂️ - chimney sweeps expected to know that they need to extinguish a boiler 💨👷🤦♂️
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 👀💧😖
- raining caused takeaway floor to be wet, had mat, non-slip tiles and mopped regularly, D did all reasonable.🌧️👀🫓
How can duty be discharged under OLA 1957?
With warnings: 🪧
if they warn visitor of danger & are enough to be reasonably safe by describing:
- what danger is ‼️
- where danger is: 👀and
- how to avoid it 👉
This will satisfy common DoC
Very obvious dangers don’t always require warnings e.g. falling off sea wall🤦♂️
What is the case regarding warnings for visitors?
- owner told chimney sweeps about the boiler - sufficient warning
💨👷🤦♂️
What other effect may warnings have?
May exclude from area therefore making the person a trespasser.
👋🪧👹
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 👷⚖️
b) Selecting IC - must be reasonable choice 👷👈
c) Supervising & Checking work: only what is reasonable 👀
What are the cases regarding contractors?
Contractor to deal with:
- lift maintenance - discharged liability 🛗
- Icy step - did not discharge liability 🧊
Once loss and breach shown for OLA 1957 for visitors, what is assumed?
👋 Causation & remoteness to be satisfied
What defences are there under OLA 1957 for visitors?
- consent 🤝
- contributory negligence 🤝🕳️
- illegality 👮
What case shows consent defence under OLA 1957 for visitors?
🤝👋
- notices at car rally for danger but not for inadequate barrier - no defence
🪧🏎️💥☠️ - 15 year old consented to risk when squeezing through gap in fence onto live railway 🛤️⚡️☠️
What can be claimed under OLA 1984 by non-visitors?
Personal injury only 👹🤕
What’s the definition of a trespasser under OLA 1984?
- Someone who goes onto land🚶♂️
- w/o invitation 😐 &
- presence is either unknown 🤷♂️to proprietor or
- if known, practically objected 🤬to
For a trespasser to be owed a DoC, what is required?
👹
- D actual knowledge of danger/reasonable grounds to believe it existed 🧨👀
- D actual knowledge aware/reasonable grounds that C was in vicinity of danger or may come into vicinity, and knew this at time of accident 🚶♂️👀
- Danger one reasonable to expected D to protect trespasser from ⚖️👹🛡️🧨
What case shows awareness of danger under OLA 1984 for non-visitors?
👀🧨
- C dived into a lake onto fiberglass container, C wasn’t aware it was there so no duty owed.
🤿🤷♂️
What case shows knowledge of in the vicinity under OLA 1984 for non-visitors?
👀🚶♂️
- D aware that people swam in harbour during the summer, but not in the winter.
🏊♂️🛥️🌞❌🥶
What cases shows breach under OLA 1984 for non-visitors?
👹
- Fence around factory, 9 year old fell through roof - no liability
👹🏰🏭🤕👍 - no fence around school, knew kids climbed on roof, child fell through roof, liable.
👹🚶♂️🧑🏫👀🤕👎 - Fence around pool, warning sign, drunk teenager jumped in - not liable.
👹🪧🏊🍺👍
What is the SoC for OLA 1984 for non-visitors?
That of a reasonable occupier - court considers normal factors plus:
- Nature of danger
- C is child or adult
- Nature of premises
- Purpose of C
- Whether occupier could/should have foreseen trespassing
What is required of a sign to be a defence under 1984?
Needs to warn of danger ⚠️
What defences are there for both OLA 1957 and 1984?
- Consent: must be fully aware of particular risk & shown through conduct
🤝 - Contributory negligence (where C is a child, judged against reasonable child of same age)
🤝🕳️
What’s the difference between the effect of a warning notice vs an exclusion notice?
Warning Notice: relevant to breach & whether D discharged DoC ⚠️✅
Exclusion Notice: operates as potential defence once claim established 🫵🤺
What restrictions are there on occupiers who can restrict/modify their liability?
a) Occupier can’t, by contract, exclude/restrict common DoC which they owe to a 3rd party i.e strangers to contract who must be allowed to enter 📄📭
b) Restricts use of clauses for B2B for personal injury/death or is not reasonable 🧑🍳👷♀️📄🤕☠️
c) for B2C, trader can’t exclude/restrict liability if term/notice is unfair 🧑🍳👨🦰📄🤥
d) Principle of common humanity🫡
