25 Occupiers' Liability Flashcards
- Understand an occupier's duty towards lawful visitors as governed by the Occupiers' Liability Act 1957 - Understand an occupier's duty towards unlawful trespassers as governed by the Occupiers' Liability Act 1984
What act accounts for OL for lawful visitors
OLA 1957
What act accounts for OL for unlawful visitors
OLA 1984
Case for deciding whether a person is the occupier
Wheat v Lacon - Hotel manager not the owner but given right to rent out rooms in his private quarters - paying guest fell down unlit staircase and died - HoL ruled that he was an occupier - so there could be more than one occupier of the premises
What is an occupier
No statutory definition - however it is someone who has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there
What if no one is in control of the premises
Then there is no claim
What are premises
No statutory definition, except in S1(3)(a) says ‘any fixed or moveable structure, including any vessel, vehicle and aircraft’
Types of lawful visitor
Adults, children and workmen
What does s 2(1) state
The occupier owes a lawful visitor the common DoC
Types of Adult visitor
Invitees, licensee, those with contractual permission, those given a statutory right of entry (police constables exercising a search warrant)
The common duty of care for a lawful visitor is set out in which section
S2(2)
What is the common duty of care for a lawful visitor
‘take such care as in all circumstances … is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited … to be there
Case authorities for making the premises reasonably safe - NOT COMPLETELY SAFE
Laverton v Kiapasha Takeaway
Debell v Rochester Cathedral
Court comment in Laverton v Kiapasha
The safety of visitors was not guaranteed, and it was not feasible as the shop had taken reasonable precautions. Customers can be reasonably safe if they take reasonable care for their safety
Special duty for children states what in which section
s 2(3) - Occupiers must be prepared for children to be less careful than adults … [and as a result] the premises must be safe for a child of that age
How is the standard of care measured for children
higher than adults but measured subjectively, according to the age of the child
What is allurement? Why is this important for an occupier to consider?
Attraction to dangerous items - Occupiers should guard against any kind of allurement or attraction which places a child visitor at risk of harm
Case authority for allurement
Glasgow v Taylor
If a child is very young, who is the duty of care usually on?
The parent or other adult
How are very young children defined
No definition - subjective for each case
Case authority for very young children
Phipps v Rochester
Special duty for people carrying out a trade states what in which section
s2(3)(b) Expect that a person in the exercise of their calling will ‘appreciate and guard against any special risks ordinarily incident to it so far as the occupier leave him free to do so
Case authority for tradespeople standard of care
Roles v Nathan
The occupier will not be liable for the work of independent contractors if:
- It is reasonable to give the work to another
- A reputable contractor is used
- If possible, the occupier checks the work has properly been done
Case authorities for Occupiers’ liability for the torts of independent contractors
- Haseldine v Daw
- Bottomley v Todmorden Cricket Club
- Woodward v The Mayor of Hastings
3 defences to an occupiers’ liability claim
- Consent
- Contributory Negligence
- Warning Notices
How would an occupier satisfy the defence of consent
- Show knowledge of the precise risk involved
- Show exercise of free choice by the claimant
- Show a voluntary acceptance of the risk
How would an occupier satisfy the defence of Contributory Negligence
Prove that the claimant was partly responsible for the injuries they have suffered
If successfully argued, the amount of compensation will be reduced by such amount as the court think appropriate
How would an occupier satisfy the defence of Warning Notices
Needs to have a successful oral or written warning, meaning in all circumstances it was enough to enable the visitor to be reasonably safe
Case authority setting out the legal principle that the occupier is liable for injuries suffered by children that are reasonably foreseeable
Jolley v London Borough of Sutton
Case authority for defence against occupiers’ liability claim
Rae v Marrs
Case Authority leading to the creation of Occupiers’ Liability Act 1984
Addie V Dumbreck
OLA 1984 s.1(3)
The occupier will only owe a trespasser a duty if:
a. They are aware of danger or have reasonable grounds to believe it exists
b. They know or have reasonable grounds to believe that another is in/ may come within the vicinity of the danger
c. The risk is one against which, in all the circumstances of the case, they may be expected to offer the other some protection
OLA 1984 s.1(4)
A duty is owed to a trespasser to ‘take such care as is reasonable in the circumstances to see that he [the trespasser] is not injured by reason of the danger
Can lawful visitors claim for personal injury and property damage
Yes
Can unlawful visitors claim for personal injury and property damage
Only personal injury
Case authority for occupiers not having to warn adult trespassers of risk of injury against obvious dangers
Ratcliff v McConnell
Case authority: Occupier does not have to warn adult trespasser if they enter at an unforeseeable time of day or year
Donoghue v Folkestone
Case authority: Occupier doesn’t have to spend lots of money in making premises safe from obvious dangers
Tomlinson v Congleton
Case authority: Occupier does not owe a duty to trespasser they do not expect to enter the premises
Higgs v Forster
Case authority: Occupier does not owe a duty for dangers they are unaware of
Rhind v Astbury Water Park
Factual causation test and case authority
But for - Barnett v Chelsea Hospital
Remoteness of damage case authority
Wagon Mound
Foreseeability case authority
Hughes v Lord Advocate
Thin Skull Rule case authority
Smith v Leech Brain
