1957 Flashcards
1
Q
lawful visitors
A
- invitees,
- licensees,
- contractual permission,
- statutory right,
2
Q
invitees
A
- people who have been invited or have express permission to be there,
3
Q
licensees
A
- people who have express or implied permission to be there for a certain time,
4
Q
contractual permission
A
- a person with a ticket,
- e.g. for a football game,
5
Q
statutory right
A
- those with a statutory right,
- e.g. police,
6
Q
section 2 (2) OLA 1957
A
- states an occupier owes a duty of care to all his lawful visitors,
‘a duty of care to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invites or permitted by the occupier to be there’
7
Q
3 key things
A
- standard of care is that of the reasonable man occupying premises, he is required to guard against the foreseeable.
- duty only applies if the visitor is carrying out activities that are authorised within the terms of his visit, if the visitor strays, he will become a trespasser,
- duty is to keep the visitor safe, not necessarily to maintain safe premises (Laverton v Kiapasha Takeaway supreme 2002) the owners had taken reasonable care). The duty will also not last indifferently (Cole v Davis).
8
Q
exception
A
- general position of the duty of care,
- however, different considerations will apply to certain types of visitor:
. children,
. people carrying out trade,
. independent contractors,
9
Q
section 2(3) OLA 1957
A
- occupier must be prepared for children to be less careful than adults,
- as a result, premises must be reasonably safe for a child of that age,
10
Q
Maloney v Lambeth London Borough Council
A
- four year old child fell through a gap in railings guarding a stairwell and was injured,
- an adult could not have fallen through the same gap, defendant was liable,
11
Q
Perry v Butlins
A
- claimant was a three year old child who injured his ear when he fell of a brick wall,
- wall was low, one built of sharp bricks, and was near an open area where childrens shows were regularly performed, defendant was liable as the design of the wall coupled with it’s location meant the defendant had fallen below the standard of care for a reasonable holiday camp,
12
Q
children are unlikely to appreciate the risks adults would
A
- children may be attracted to the danger,
- as a result, occupiers should guard against any kind of allurement which places a child visitor at risk of harm,
13
Q
Glasgow corporation v Taylor
A
- 7 year old ate poisonous berries in botanical gardens and died,
- tree where berries grow was not fences off,
- occupiers should have expected a young child may be attracted to the berries and was liable,
14
Q
parent should be taking care of young children
A
- parents should take into account that parents should be taking care of young children,
- could absolve the defendants from liability,
- Phipps v Rochester Corporation,
15
Q
Phipps v Rochester Corporation
A
- 5 year old injured after fallen down a trench dug by defendant,
- defendant was not liable as the parents should have had the child under proper control,
16
Q
people carrying out a trade of calling
A
- section 2 (3) OLA 1957 an occupier is entitled to expect that a specialist visitor will be aware of an will protect himself against risks within his own area of experts,
- example, an occupier knows the electrics in his house are faulty and calls an electrician to deal with the problem, he is entitled to assume the visitor knows what he is doing in relation to the electrics,
17
Q
Roles v Nathan
A
- no liability found on occupiers when chimney sweeps died after inhaling carbon monoxide fumes whilst cleaning flues,
- sweeps should have taken the occupier’s advice to complete the work with boilers off,
- occupier didn’t owe a duty to the visitor,
18
Q
independent contractors
A
- under section 2 (4) (b) an occupier may be able to avoid liability for loss or injury suffered by his visitors if the cause of the damage is the negligence of an independent contractor (someone who is not an employee but carrying out a service for a fee),
- liability will be avoided where 3 requirements are met,
19
Q
3 requirements to avoid liability
A
- must be reasonable for the occupier to have entrusted the work to the independent contractor,
- contractor hired must be competent to carry out the task,
- occupier, where possible must check the work of the independent contractor,
20
Q
reasonable to trust contractor
A
- meaning, occupier won’t be liable if his property is dangerous, if the work is beyond the knowledge of an ordinary reasonable person either to complete himself or check e.g. rewiring electrics,
- Haseldine v Daw,
21
Q
Haseldine v Daw
A
- claimant was injured when, whilst visiting the premises the lift in which he was travelling in fell to the ground,
- he was not liable as maintaining a lift is beyond the knowledge and expertise of an ordinary reasonable person,
22
Q
contractor must be competent
A
- Bottomley v Todmorden Cricket Club - the club held a firework display, during which the claimant was injured,
- evidence showed the fireworks firm were not injured and did not have sufficient experience for the type of show they were putting on,
- the cricket club were liable,
23
Q
occupier must check the work of the contractor
A
- the more complex and technical the work and the less expert occupier, the less reasonable it is to impose liability,
- Woodward v The Mayor of Hastings,
24
Q
Woodward v The Mayor of Hastings
A
- occupiers were liable when a child was injured on a school step,
- they were negligently left icy after clearing snow, the danger should have been obvious to the occupiers,
25
Q
defences
A
- the defendant may be able to avoid liability if he successfully argues a defence,
the available defences are:
. warnings,
. exclusion clauses,
. contributory negligence,
. consent (volenti),
26
Q
warnings
A
- it was enough to enable to visitor to be reasonably safe,
- whether a warning is sufficient will be the question of fact on a case by case basic,
- sometimes a warning on its own will be insufficient and some form of barrier will be expected to keep the visitor reasonably safe,
- Roles v Nathan - occupier warned the chimney sweeps that cleaning of the flues should only be done when boilers were switched off,
- court will expect the sign or notice to warn of the specific danger rather than simply stating ‘private’, some risks may be so obvious that no additional warning is required (Staples v West Dorset DC), the risk of warning was so obvious there was no need for a warning sign,
27
Q
section 2 (1) OLA 1957 - exclusion clauses
A
- states that ‘an occupier of premises owes the same duty to all his visitors, except in so far as he is free and does extend, restrict, modify or exclude his duty to any visitors or visitors by agreement or otherwise’,
- meaning an exclusion notice clause may be used to impose a lesser duty of care or even none at all,
28
Q
exclusion clause unfair contract terms act 1957
A
- exclusion clause is subject to the unfair contract terms act 1957, meaning that exclusion clauses will not be available where strangers or children are involved and in circumstances where death or personal injury occurs, these clauses can’t be in warning signs,
29
Q
volenti section 2(5)
A
- states the ‘duty of care does not impose on an occupier any obligation willingly accepted by the visitor’,
- this allows for the defence of volenti,
- the defence operates where the claimant has willingly accepted any risk,
- however, the risk must be fully understood by the visitor and accepted,
30
Q
contributory negligence
A
- section 2(3) OLA 1957, states the court may take into account the degree of care a reasonable visitor can be expected to show for their own safety,
- if successfully argued by the defendant this defence will have the effect of reducing the claimant’s damages by the percentage by which the court thinks he has contributed to his own loss/damage,
31
Q
A
