11 - TORT - Occupiers - Visitors Flashcards

1
Q

Whatโ€™s the difference between OLA 1957 & 1984

A

OLA 1957 applies to visitors ๐Ÿ‘‹
OLA 1984 applies to non-visitors ๐Ÿ‘น

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What does OLA concern?

A

State of land ๐Ÿก, not activity ๐Ÿคฟ
So 18 year old diving into shallow lake was not an OLA issue as it was the activity that was dangerous, not the land.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What is occupiers liability for visitors?

A
  • Occupier of premises owes common DoC to all visitors to take
  • reasonable care that visitor will be
    โš–๏ธ๐Ÿซ‚
  • reasonably safe in using premises
    โš–๏ธ๐Ÿช–
  • for purpose, for which they were permitted
    ๐Ÿ‘‹
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What can be claimed for under OLA 1957 for visitors?

A
  • Personal injury ๐Ÿค•
  • Property damage ๐Ÿš๏ธ
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What are the requirements to prove a DoC for occupiers liability for visitors?

A
  1. Is D an occupier? ๐Ÿ‘ซ
  2. Is D occupier of premises?๐Ÿ‘ซ๐Ÿก
  3. Is C a visitor?๐Ÿ‘‹
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

How is โ€˜occupierโ€™ defined?

A

Someone w/ sufficient degree of control over premises - doesnโ€™t have to owner, can be occupier
4 Categories:
1. If landlord doesnโ€™t live there, tenant is occupier ๐Ÿ‘ซ
2. If landlord retains some part of premises, theyโ€™re occupier of those parts ๐Ÿชœ๐ŸŽฉ
3. If landlord issues a licence, they remain occupier ๐Ÿ”๐ŸŽฉ
4. If occupier employs independent contractor, generally remain responsible
๐Ÿ‘ท๐ŸŽฉ

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is the case on who is an occupier?

A

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.

โ›ช๏ธโžก๏ธ๐Ÿ‘ทโ€โ™‚๏ธโžก๏ธ๐Ÿ‘ทโ€โ™€๏ธ๐Ÿ™ˆ

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

How is โ€˜premisesโ€™ defined?

A

Any fixed or moveable structure including vessels, vehicles or aircraft (includes a ladder)
๐Ÿ โœˆ๏ธ๐Ÿš™๐Ÿ›ฅ๏ธ๐Ÿชœ

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

How are โ€˜visitorsโ€™ defined?
๐Ÿ‘‹

A
  • Any person w/ express ๐ŸŽ™๏ธor implied ๐Ÿคซpermission to be on premises ๐Ÿก
  • This can be limited by notice, so visitor becomes trespasser e.g. by area, time or purpose
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What are the cases on whether someone was a visitor?

A
  • 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. ๐ŸŽช๐Ÿ‘ถ๐Ÿฆ๐Ÿ‘‹
  • inconspicuous sign by national trust with other info saying stay away from lake was not enough. ๐ŸŒณ๐Ÿ”Ž๐Ÿชง๐ŸŸ๐Ÿ‘‹
  • restrict by time - drinker at a lock-in in a pub was still a visitor even after hours. ๐Ÿป๐Ÿ•ฐ๏ธ๐Ÿ‘‹
  • restrict by purpose - made clear to C that lake was for canoeing, fishing & windsurfing. C swam which made him a trespasser. ๐ŸŸ๐Ÿ›ถ๐Ÿคก๐ŸŠโ€โ™‚๏ธ๐Ÿ‘น
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What are the cases on implied permission?
๐Ÿคซ

A
  • used shortcut for 35 years, attacked by horse, found to be a visitor ๐Ÿด ๐ŸฅŠ ๐Ÿšถโ€โ™‚๏ธ ๐Ÿ‘‹
  • railway fence repeatedly cut and mended - 9 year old hit by a train - did not have implied permission. ๐Ÿ›ค๏ธ๐Ÿ‘ฆ๐Ÿš†๐Ÿ‘น
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Are users of public footpaths considered to be visitors?

A

No ๐Ÿšถ๐Ÿ‘น

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

How is standard of care for OLA 1957 changed for children and persons entering in exercise of their calling?

A
  • 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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What are the cases on standard of care for visitors?

A
  • child eat poisonous berries from a bush. Counsel took no action to warn despite allurement so liable ๐Ÿ’
  • 14 year old claimant repaired abandoned boat which fell on him. Counsel liable as boat was an allurementโ›ต๏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.
    ๐Ÿ—๏ธ๐Ÿ‘ฉโ€๐Ÿ‘ฆ๐Ÿ•ณ๏ธ๐Ÿคฆโ€โ™‚๏ธ
  • chimney sweeps expected to know that they need to extinguish a boiler ๐Ÿ’จ๐Ÿ‘ท๐Ÿคฆโ€โ™‚๏ธ
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What are the cases on whether standard of care met for visitors?

A
  • D inspected walkway from Jacuzzi to swimming pool. C slipped, D found to have done all reasonable ๐Ÿ‘€๐Ÿ’ง๐Ÿ˜–
  • raining caused takeaway floor to be wet, had mat, non-slip tiles and mopped regularly, D did all reasonable.๐ŸŒง๏ธ๐Ÿ‘€๐Ÿซ“
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

How can duty be discharged under OLA 1957?

A

With warnings: ๐Ÿชง
if they warn visitor of danger & are enough to be reasonably safe by describing:
- what danger is โ€ผ๏ธ
- where danger is: ๐Ÿ‘€and
- how to avoid it ๐Ÿ‘‰
This will satisfy common DoC
Very obvious dangers donโ€™t always require warnings e.g. falling off sea wall๐Ÿคฆโ€โ™‚๏ธ

17
Q

What is the case regarding warnings for visitors?

A
  • owner told chimney sweeps about the boiler - sufficient warning

๐Ÿ’จ๐Ÿ‘ท๐Ÿคฆโ€โ™‚๏ธ

18
Q

What other effect may warnings have?

A

May exclude from area therefore making the person a trespasser.
๐Ÿ‘‹๐Ÿชง๐Ÿ‘น

19
Q

How can duty owed to visitors be discharged through independent contractors?

A

General Rule: duty owed to visitors is non-delegable
Exception: independent contractors
a) Hiring IC must be reasonable ๐Ÿ‘ทโš–๏ธ
b) Selecting IC - must be reasonable choice ๐Ÿ‘ท๐Ÿ‘ˆ
c) Supervising & Checking work: only what is reasonable ๐Ÿ‘€

20
Q

What are the cases regarding contractors?

A

Contractor to deal with:
- lift maintenance - discharged liability ๐Ÿ›—
- Icy step - did not discharge liability ๐ŸงŠ

21
Q

Once loss and breach shown for OLA 1957 for visitors, what is assumed?

A

๐Ÿ‘‹ Causation & remoteness to be satisfied

22
Q

What defences are there under OLA 1957 for visitors?

A
  • consent ๐Ÿค
  • contributory negligence ๐Ÿค๐Ÿ•ณ๏ธ
  • illegality ๐Ÿ‘ฎ
23
Q

What case shows consent defence under OLA 1957 for visitors?
๐Ÿค๐Ÿ‘‹

A
  • notices at car rally for danger but not for inadequate barrier - no defence
    ๐Ÿชง๐ŸŽ๏ธ๐Ÿ’ฅโ˜ ๏ธ
  • 15 year old consented to risk when squeezing through gap in fence onto live railway ๐Ÿ›ค๏ธโšก๏ธโ˜ ๏ธ
24
Q

What defences are there for both OLA 1957 and 1984?

A
  • Consent: must be fully aware of particular risk & shown through conduct
    ๐Ÿค
  • Contributory negligence (where C is a child, judged against reasonable child of same age)
    ๐Ÿค๐Ÿ•ณ๏ธ
25
Q

Whatโ€™s the difference between the effect of a warning notice vs an exclusion notice?

A

Warning Notice: relevant to breach & whether D discharged DoC โš ๏ธโœ…

Exclusion Notice: operates as potential defence once claim established ๐Ÿซต๐Ÿคบ

26
Q

What restrictions are there on occupiers who can restrict/modify their liability?

A

a) Occupier canโ€™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 ๐Ÿ“„๐Ÿ“ญ
b) Restricts use of clauses for B2B for personal injury/death or is not reasonable ๐Ÿง‘โ€๐Ÿณ๐Ÿ‘ทโ€โ™€๏ธ๐Ÿ“„๐Ÿค•โ˜ ๏ธ
c) for B2C, trader canโ€™t exclude/restrict liability if term/notice is unfair ๐Ÿง‘โ€๐Ÿณ๐Ÿ‘จโ€๐Ÿฆฐ๐Ÿ“„๐Ÿคฅ
d) Principle of common humanity๐Ÿซก