5. Occupiers Liability

Question 1

two types of occupiers liability

Answer 1

occupiers liability to visitors: Occupiers Liability Act 1957

occupiers liability to trespassers: Occupiers Liability Act 1984

Question 2

OLA 1957: VISITORS
criteria:

Answer 2

1. occupiers
2. premises
3. lawful visitor
4. common duty
5. children
6. liability to professionals/tradespeople
7. liability for independent contractors
8. reasonably safe
9. causation and remoteness
10. avoiding the duty
11. defences
12. remedies

Question 3

1. occupiers

Answer 3

s1(2) “persons occupation or control of premises”

• common law applies
• dual or multiple occupation is possible
• may be influenced by who can meet a successful claim (eg insurance)
• doesn’t require proprietary interest or possession

Question 4

2. premises

Answer 4

s1(3)(a) “fixed or moveable structure, including any vessel, vehicle, and aircraft”

• common law applies
• includes houses, buildings, land, vehicles, lifts, ladders

Question 5

3. lawful visitor

Answer 5

duty only applies if the visitor is carrying out activities that are authorised within the terms of the visit
- authorisation (permission) can be express or implied
- if the occupier knows (or should know) that people are repeatedly visiting their land, and does nothing about it, permission can be implied

s1(2) includes invitees, licensees (eg customers), legal right to enter (eg police)

Question 6

4. common duty

Answer 6

s2(1) “occupiers owe a common duty of care to all his visitors”

s2(2) “take such ads as in all the circumstances as is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited”

Question 7

5. children

Answer 7

s2(3) “the occupier must be prepared for children to be less careful than adults… the premises must be reasonably safe for a child of that age”

• subjective
• children unlikely to appreciate risks, may be attracted to danger
• occupiers should guard against any kind of “allurement” which places a child at risk of harm (Glasgow Corporation v Taylor)
• a child won’t be a trespasser if they wander onto land to investigate an “allurement”
• if children are very young (5 and under) they should be under supervision of a parent (Phipps v Rochester Corporation)

Question 8

6. liability to professionals/tradespeople

Answer 8

s2(3)(b) “professional visitors should appreciate and guard against any special risks ordinarily incident to them” (in relation to activities carried on within their trade

• occupier won’t be liable where tradesmen fail to guard against risks which they should know about (Roles v Nathan)

Question 9

7. liability for independent contractors

Answer 9

(defence)

occupier can avoid liability when the cause of damage is the negligence of an independent contractor hired by the occupier under the criteria:

s2(4):
1. reasonable entrusted with the work (Haseldine v Daw & Son)
2. competent to carry out the task (demonstrate expertise)
3. occupier checks the work if possible (Woodward v The Mayor of Hastings)
- the more complex and technical the work and the less expert the occupiers the less reasonable to impose this obligation

Question 10

8. visitor reasonably safe

Answer 10

danger must be due to the premises

(briefly)

BREACH
- reasonable man = reasonable occupier
- standard of care/fallen below
- risk factors (magnitude of risk Bolton v Stone, practicality of taking precautions Latimer v AEC, characteristics of C Paris v Stepney BC, public utility Watts v Herts

Question 11

9. causation and remoteness

Answer 11

(briefly)

1. factual causation
   - but for (Barnett v Chelsea & KH)
2. legal causation
   - remoteness/reasonably foreseeable (Wagon Mound No1)
   - type of damage foreseeable (Bradford v Robinson Rentals)
   - happens in an unforeseeable way (Hughes v Lord Advocate)
3. egg shell/think skull rule
   - D takes C as finds him (Smith v Leech Brain)

Question 12

10. avoiding the duty

Answer 12

1. s2(4)(a): warning
   - a warning is ineffective unless “in all the circumstances it was enough to enable the visitor to be reasonably safe”
   - can be express or implied
   - depends on the facts; warning may not be enough
   - Rae v Mars
2. exclusion clauses (with restrictions)
   - restrict liability
   - exclusion clauses in the warning notice

Question 13

11. Defences

Answer 13

1. contributory negligence
   - C contributes to his loss/injury
   - reduces compensation
2. Volenti non fit injuria
   - consent
   - s2(5): occupier “has no liability to a visitor in respect of risks willingly accepted as his bh the visitor”
   - risk is fully understood and accepted

Question 14

12. remedies

Question 15

OLA 1984: TRESPASSERS
criteria:

Answer 15

1. occupier
2. premises
3. persons other than visitors
4. scope of duty
5. standard expected
6. causation/remoteness
7. avoiding liability
8. defences
9. remedies

Question 16

OLA 1984 TRESSPASSERS
definition

Answer 16

s1(1)(a) liability of an occupier to persons other than his visitors in respect of an injury on the premises by reason of any danger due to the state of the premises

(limited duty of care)
- ONLY personal injury or death
- s1(8) NO LIABILITY for loss of or damage to property

Question 17

1. occupier

Answer 17

s1(2) “persons occupation or control of premises”

• common law applies
• dual or multiple occupation is possible
• may be influenced by who can meet a successful claim (eg insurance)
• doesn’t require proprietary interest or possession

Question 18

2. premises

Answer 18

s1(3)(a) “fixed or moveable structure, including any vessel, vehicle, and aircraft”

• common law applies
• includes houses, buildings, land, vehicles, lifts, ladders

Question 19

3. persons other than visitors

Answer 19

includes:
- trespassers (uninvited)
- those who exceed their permission
- persons exercising private rights of way

Question 20

4. scope of duty

Answer 20

s1(3) occupier owes a duty if:

(a) aware of danger or had reasonable grounds to believe it exists (Rhind v Astbury Water Park)

(b) knows or has reasonable grounds to believe the non-visitor is in the vicinity of danger, or that he may come into the vicinity (Donoghue v Folkestone Properties)

(c) the risk is one against which, in all circumstances, he may reasonably be expected to offer the non-visitor some protection

• danger must be due to the state of the premises (Keown v Coventry Healthcare NHS Trust)

Question 21

5. standard expected

Answer 21

s1(4) “take such care as is reasonable in all the circumstances to see that the non-visitor does not suffer injury on the premises by reason of the danger”

BREACH (Tomlinson v Congleton BC)
- reasonable man = reasonable occupier
- standard of care/fallen below
- risk factors (magnitude of risk Bolton v Stone, practicality of taking precautions Latimer v AEC, characteristics of C Paris v Stepney BC, public utility Watts v Herts

Question 22

6. causation/remoteness

Answer 22

(briefly)

1. factual causation
   - but for (Barnett v Chelsea & KH)
2. legal causation
   - remoteness/reasonably foreseeable (Wagon Mound No1)
   - type of damage foreseeable (Bradford v Robinson Rentals)
   - happens in an unforeseeable way (Hughes v Lord Advocate)
3. egg shell/think skull rule
   - D takes C as finds him (Smith v Leech Brain)

Question 23

7. avoiding liability

Answer 23

s1(5) “the occupier may discharge his duty by taking reasonable steps to warn of the danger or to discourage persons from incurring the risk”

• generally unlikely that earnings will be effective for children
• only effective when warns of precise danger in clear terms

Question 24

8. defences

Answer 24

volenti non fit injuria (consent)
- voluntary stick of harm by the C
- C must appreciate the nature and danger of risk (mere awareness is insufficient)
- complete defence
- Ratcliff v McConnell

Question 25

9. remedies