8. Occupiers' Liability Flashcards

1
Q

OLA 1957 governs

A

duty owed by occupiers to visitors

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2
Q

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

A
  • personal injury
  • property damage
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3
Q

OLA 1984 governs

A

duty owed by occupiers to non-visitors

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4
Q

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

A

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)

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5
Q

Who is a visitor under the 1957 and 1984 Acts?

A

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

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6
Q

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?

A

Trespasser

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7
Q

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

A

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

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8
Q

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

A

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

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9
Q

What is a premises?

A

Land, and any buildings on the land.

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

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10
Q

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

A

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

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11
Q

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

A

Yes

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12
Q

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?

A
  1. The magnitude of the risk
  2. Practicability of taking precautions
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13
Q

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

A

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

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14
Q

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

A

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

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15
Q

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

A

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

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16
Q

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?

A
  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.

17
Q

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

A

Establish causation in the usual way

18
Q

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

A

Yes, with some limitations on occupiers who are businesses

19
Q

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?

A
  1. Cannot exclude liability for death or personal injury
  2. Liability for other damage can only be excluded if reasonable
20
Q

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

A

Through contract, or an effective non-contractual notice

21
Q

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

A

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

22
Q

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

A
  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
23
Q

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

A

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

24
Q

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

A

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

25
Q

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

A

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

26
Q

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

A
  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
27
Q

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

A

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

28
Q

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

A

No

29
Q

What is the standard of care under the 1984 Act?

A

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

30
Q

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

A

By taking steps to:

  1. Give a warning of the danger, or
  2. Discourage trespasser from incurring the risk
31
Q

Can a duty be excluded under the 1984 Act?

A

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

32
Q

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

A
  1. Volenti non fit injuria
  2. Contributory negligence
33
Q

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

A

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

34
Q

What is the duty under the Defective Premises Act 1972 ?

A

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.