8. Occupiers' Liability

Question 1

OLA 1957 governs

Answer 1

duty owed by occupiers to visitors

Question 2

under OLA 1957, which losses can a visitor claim for?

Answer 2

• personal injury
• property damage

Question 3

OLA 1984 governs

Answer 3

duty owed by occupiers to non-visitors

Question 4

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

Answer 4

The condition of the premises, or things done or omitted to be done during occupation

not activities carried out on the premises (in which case general negligence claims may be more appropriate)

Question 5

Who is a visitor under the 1957 and 1984 Acts?

Answer 5

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

Question 6

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 6

Trespasser

Question 7

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

Answer 7

The person who has a sufficient degree of control over the premises, who need not be the owner

Question 8

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

Answer 8

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

Question 9

What is a premises?

Answer 9

Land, and any buildings on the land.

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

Question 10

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

Answer 10

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 11

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

Answer 11

Yes

Question 12

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 12

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

Question 13

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

Answer 13

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

Question 14

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

Answer 14

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

Question 15

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

Answer 15

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

Question 16

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 16

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 17

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

Answer 17

Establish causation in the usual way

Question 18

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

Answer 18

Yes, with some limitations on occupiers who are businesses

Question 19

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 19

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

Question 20

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

Answer 20

Through contract, or an effective non-contractual notice

Question 21

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

Answer 21

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

Question 22

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

Answer 22

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 23

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

Answer 23

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

Question 24

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

Answer 24

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

Question 25

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

Answer 25

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 26

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

Answer 26

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 27

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

Answer 27

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

Question 28

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

Answer 28

No

Question 29

What is the standard of care under the 1984 Act?

Answer 29

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 30

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

Answer 30

By taking steps to:

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

Question 31

Can a duty be excluded under the 1984 Act?

Answer 31

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 32

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

Answer 32

1. Volenti non fit injuria
2. Contributory negligence

Question 33

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

Answer 33

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 34

What is the duty under the Defective Premises Act 1972 ?

Answer 34

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.