11 - TORT - Occupiers - Visitors Flashcards
What’s the difference between OLA 1957 & 1984
OLA 1957 applies to visitors 👋
OLA 1984 applies to non-visitors 👹
What does OLA concern?
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 who is an 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 🚶👹
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 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🫡
