8. Occupiers' Liability

Question 1

Regarding the premises, to what aspect do the relevant Occupiers’ Liability Acts apply?

Answer 1

The condition of the premises, not activities carried out on the premises

Question 2

What are the two Acts and what do they deal with?

Answer 2

• Occupiers’ Liability Act 1957 deals with an occupier’s duty to visitors
• Occupiers’ Liability Act 1984 deals with an occupier’s duty to persons other than visitors

Question 3

Who is a visitor under the 1957 and 1984 Acts?

Answer 3

A person whom the occupier has invited or permitted to be on the premises

Question 4

Under the 1957 Act, what does a person become if they enter the premises as a lawful visitor but exceed the scope of that permission?

Answer 4

Trespasser

Question 5

What is an occupier under both the 1957 and 1984 Acts?

Answer 5

The person who has control over the premises, who need not be the owner e.g., tenant.

Question 6

In a landlord-tenant situation, who is generally the occupier and what are some exceptions to this?

Answer 6

The **tenant is generally the occupier, **except for parts which have been excluded from the lease, e.g. common staircase

Question 7

What is a premises?

Answer 7

Land, and any buildings on the land.

The 1957 Act further applies to any fixed or moveable structure, e.g. scaffolding or ladders

Question 8

What is the duty of care owed by an occupier to visitors under the 1957 Act?

Answer 8

Duty to take reasonable care so the visitor is reasonably safe in using the premises for the purpose they have been invited or permitted

Question 9

Does an occupier’s duty under the 1957 Act also apply to a visitor’s property?

Answer 9

Yes

Question 10

To refresh, what two things will the court consider when determining whether the occupier exercised reasonable care, which apply to both the 1957 and 1984 Acts?

Answer 10

1. The magnitude of the risk
2. Practicability of taking precautions

Question 11

Under the 1957 Act, how should an occupier treat children?

Answer 11

Occupier should expect children to be less careful than adults, so may be required to take more precautions to avoid harm to children

Question 12

Under the 1957 Act, what is someone “exercising their calling” and how should an occupier expect them to behave?

Answer 12

Someone on the premises for a particular task, e.g. electrician. They should be expected to be aware of dangers posed by things associated to their calling, e.g. electrician should be aware of exposed wires and dangers posed

Question 13

Even when they warn a visitor of a danger, only when will an occupier discharge their liability if the visitor is harmed?

Answer 13

When the warning was enough to enable the visitor to be completely safe, such that the injury is basically the claimant’s fault

Question 14

Under the 1957 Act, what are the two conditions for an occupier to not be liable for damage suffered by faulty work of an independent contractor?

Answer 14

1. Occupier acted reasonably in choosing an independent contractor, and
2. Occupier took reasonable steps to be satisfied that the contractor was competent and the work was properly done

If this is done, the occupier is not liable.

Question 15

After a visitor establishes that the occupier breached their duty, what must they do?

Answer 15

Establish causation in the usual way

Question 16

Under the 1957 Act, is the occupier allowed to exclude duty?

Answer 16

Yes, with some limitations on occupiers who are businesses

Question 17

Although liability can be excluded under the 1957 Act

If an occupier is acting in the course of business, what limitations are placed on their ability to exclude liability under the 1957 Act?

Answer 17

1. Cannot exclude liability for death or personal injury
2. Liability for other damage can only be excluded if reasonable

Question 18

Where an occupier is free to exclude liability, through what means can they achieve this?

Answer 18

Through contract, or an effective non-contractual notice

Question 19

What two things are required of a contractual clause or notice excluding liability under the 1954 Act to be effective?

Answer 19

Exclusion must:
1. Cover the damage in question
2. Have been adequately brought to claimant’s attention

Question 20

When must an exclusion be adequately brought to the claimant’s attention where it is (1) by contract and (2) by notice?

Answer 20

1. Incorporated into the contract and brought to visitor’s attention of the before contract is made
2. Notice must be before visitor encounters the risk for which liability is excluded

Question 21

When liability is to be excluded by notice under the 1954 Act, is it necessary to show that the visitor was actually aware?

Answer 21

No, as long as reasonable steps were taken to bring it to the visitor’s attention, the fact they didn’t look at it or missed it does not preclude notice being effective.

For example: A notice displayed at the main entrance to premises would not be effective against a visitor who entered by a different entrance, but would be effective if it was the only entrance.

Question 22

What is a trespasser under the Occupiers’ Liability Act 1984?

Answer 22

Someone who comes onto premises without permission or who enters with permission and exceeds the scope of the permission.

Question 23

What are the definitions of occupier and premises under the 1984 Act?

Answer 23

Same as under the 1954 Act.

Occupier: Person who has control over the premises, who need not be the owner
Premises: Land, and any buildings on the land, minus the fixed/moveable option under the 1954 Act

Question 24

What three conditions must be met before a duty is owed to a trespasser under the 1984 Act?

Answer 24

1. Occupier aware of danger, or ought to be
2. Occupier aware that trespasser may encounter the danger, or ought to be aware, and
3. The danger is one against which it would be reasonable to expect the occupier to offer protection

Question 25

Where a duty is owed to a trespasser under the 1984 Act, what is that duty?

Answer 25

Duty to take care so that trespasser is not injured by the danger

Question 26

Does the duty owed to a trespasser under the 1984 Act extend to property?

Answer 26

No

Question 27

What will a court take into consideration when determining the standard of care under the OLA 1984 Act?

Answer 27

The same as negligence and the 1954 Act, so the court will have regard to the magnitude of the risk and the practicability of taking precautions

Question 28

In what two ways may an occupier discharge their duty under the 1984 Act?

Answer 28

By taking steps to:

1. Give a warning of the danger, or
2. Discourage trespasser from incurring the risk

Question 29

Can a duty be excluded under the 1984 Act?

Answer 29

The 1984 Act is silent as to exclusion so it is not clear whether duty can be excluded in the same way as under the 1954 Act

Question 30

What two negligence defences are available to an occupier under both the 1957 and 1984 Act?

Answer 30

1. Voluntary Assumption of Risk
2. Contributory negligence

Question 31

When might a landlord owe a duty under the Defective Premises Act 1972?

Answer 31

Given up control to a tenant and as such are no longer the occupier, but the lease obliges a landlord to make repairs or permits landlord to enter premises to do so

Question 32

What is the duty under the Defective Premises Act 1972 ?

Answer 32

Landlord owes a duty, regarding defects, to take reasonable care so that anyone who might be affected by a defect is reasonably safe from personal injury or damage to their property

Also applies to builders if house is inherently defective.

Question 33

Overview:

Comparison OLA 1957, OLA 1984 Defective Premises Act 1972

Answer 33