A: Occupier's Liability Act 1957 (Vistors)

Question 1

1. Occupiers’ Liability is governed by the…

Answer 1

Occupiers’ Liability is governed by the Occupiers’ Liability Act 1957 (lawful visitors) and the Occupiers’ Liability Act 1984 (non-lawful visitors: trespassers).

Question 2

2. C may bring an action against…

Answer 2

C may bring an action against D under the OLA 1957.

Question 3

3. Under Section 1, C must be a lawful visitor on D’s Premesies…
   Here…

They must have either…

Answer 3

Under Section 1 C must be a lawful visitor on D’s premises.

They must have either Express Permission (be an invitee or have contractual permission such as having a ticket for an event),

Implied Permission (be a licencee who has entered premises for a long time as a trespasser without complaint as in Lowery v Walker, or a delivery maker such as the postman),

or a Legal Right of entry such as a police officer with a warrant, or a gas meter reader.

Here, [eg. C was a hotel guest and so was a lawful visitor with express permission to be on D’s premises].

Question 4

4. D must be the occupier…
   Here…

Answer 4

D must be the occupier, with control of the premises, as in Wheat v E. Lacon and Co.

Here, [eg. D is the occupier as they have control of the house as the owner / landlord / tenant of the house where the injury occurred].

Question 5

5. ‘Premises’ must fall within the very wide definition…
   Here…

Answer 5

‘Premises’ must fall within the very wide definition under Section 1(3)(a): ’any fixed or moveable structure, including any vessel, vehicle and aircraft’, and could even include a ladder as in Wheeler v Copas.

Here, [eg. D is the occupier of premises as the cottage is a fixed structure].

Question 6

**IF C IS AN ADULT: **

6. Under Section 2(1) D owes C a…

Answer 6

Under Section 2(1) D owes C a ‘common duty of care’.

Question 7

7. Under Section 2(2), D must “take such care as in all the circumstances”…

Answer 7

Under Section 2(2), D must:

“take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited”,

as in Laverton v Kiapasha Takeaway Supreme.

Question 8

8. D must take reasonable precautions to keep C…

Answer 8

D must take reasonable precautions to keep C reasonably (not completely) safe,

AND

will be compared to the reasonable occupier (Vaughan v Menlove, Blyth v Birmingham Waterworks) or reasonably competent professional occupier (Bolam v Friern Barnet HMC).

Here, [eg. D has fallen below the standard of the reasonably competent professional occupier as they did not take the reasonable precaution of clearing away the broken glass in the reception area of the hotel.]

Question 9

9. ADD THIS IF C IS AN ADULT ‘SKILLED’ VISITOR:

Under Section 2(3)(b) D can expect that a skilled visitor when carrying out work will…

Here…

Answer 9

ADD THIS IF C IS AN ADULT ‘SKILLED’ VISITOR:

Under Section 2(3)(b) D can expect that a skilled visitor when carrying out work will:

“appreciate and guard against any special risks ordinarily incidental to it”

as in Roles v Nathan.

This does not apply to rescuers such as firemen, as in Ogwo v Taylor.

Here, [eg. C is an electrician and should have guarded against the risk of burning himself on the wiring as such a risk is an accepted part of his job, so D will not be liable].

Question 10

IF C IS A CHILD:

10. Under Section 2(1) D owes C a…

Answer 10

Under Section 2(1) D owes C a ‘common duty of care’.

Question 11

11. Under Section 2(2), D must “take such care as in all the circumstances of the case is…”

Answer 11

Under Section 2(2), D must:

“take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited”

as in Laverton v Kiapasha Takeaway Supreme.

Question 12

12. D must take reasonable precautions to keep C reasonably (not completely) safe and their standard of care will be compared to…

Answer 12

12. D must take reasonable precautions to keep C reasonably (not completely) safe, and their standard of care will be compared to the reasonable occupier (Vaughan v Menlove, Blyth v Birmingham Waterworks) or reasonably competent professional occupier (Bolam v Friern Barnet HMC).

Question 13

13. However, C is a child, and under Section 2(3)(a) D “must be prepared…”

Answer 13

However, C is a child, and under Section 2(3)(a):

D “must be prepared for children to be less careful than adults”

as in Perry v Butlins Holiday World.

Question 14

14. A child is more at risk than an adult…

Answer 14

A Child is more at risk than an Adult, so D’s standard of care will be judged subjectively and will be HIGHER, as in Moloney v Lambeth BC.

Question 15

15. D must guard against the risk of an allurement…

Answer 15

D must guard against the risk of an allurement, as in Glasgow Corporation v Taylor. If there is an allurement, there will only be liability if the injury was reasonably foreseeable, as in Jolley v Sutton, without previous warnings, as in Liddle v Yorkshire CC.

Question 16

16. Very young children must be supervised by their parents…
    Here…

Answer 16

Very young children must be supervised by their parents, as in Phipps v Rochester.

Here, [eg. D has fallen below the standard of the reasonably competent professional occupier as they did not take the reasonable precaution of clearing away the broken glass in the children’s play area in the back garden of the hotel. The size of risk of harm was high, especially for a child (Bolton v Stone), the cost and practicality of reducing the risk was low compared to the high risk (Latimer v AEC Ltd), the play area was an obvious allurement for a child of 8 and so they should have guarded against the risk of injury by making the premises safe. Cuts to the feet were reasonably foreseeable, there were no previous warnings, and a child of 8 is probably not expected to be supervised by their parents].

Question 17

17. FOR AN ADULT OR CHILD CLAIMANT, ADD THIS IF AN INDEPENDENT CONTRACTOR COULD BE LIABLE:

Under Section 2(4)(b), D may be able to pass liability on to Z as an independent contractor because…

Answer 17

FOR AN ADULT OR CHILD CLAIMANT, ADD THIS IF AN INDEPENDENT CONTRACTOR COULD BE LIABLE:

Under Section 2(4)(b), D may be able to pass liability on to Z as an independent contractor because the state of the premises was due to Z, as in Ferguson v Welsh.

D must show that they (a) took reasonable steps to check that Z was competent (Bottomley v Todmorden Cricket Club), that it was (b) reasonable to have given the work to Z, and that they (c) checked that any ‘non-technical work’ had been properly done (Woodward v Mayor of Hastings, Haseldine v Daw). There is no duty to check ‘technical work’.

APPLY IF RELEVANT – Here, [eg. D will be able to pass liability on to Z as we assume that he took reasonable steps to check Z was competent, it was reasonable to give Z the work as he is a specialist in lift repairs, and D was not expected to check the lift repairs as it is technical work].

Question 18

18. Defences and Conclusion

Answer 18

DEFENCES

Under Section 2(4)(a) an oral or written warning can be a full defence if it is effective so that “it was enough to enable the visitor to be reasonably safe”, as in Rae v Mars. There is no duty to warn against obvious risks, as in Darby v National Trust. A warning may be less effective in respect of a child, depending on their age and understanding.
IF RELEVANT: Here [eg. a small notice is not an effective warning with regard to a child when the climbing frame was so dangerous].
The Law Reform (Contributory Negligence) Act 1945 provides that any damages to the claimant can be reduced by a percentage according to the extent to which the claimant has contributed to their own injuries, with even 100% a possibility, as in Sayers v Harlow.
IF RELEVANT: Here, [eg. C’s damages will be reduced by a percentage as he partly caused his own injuries when he didn’t wear a helmet].

Volenti non fit injuria (consent) is a full defence under Section 2(5), where the claimant fully understood the nature of the risk rather than just being aware of its existence, and exercised free choice, as in Darby v National Trust.

IF RELEVANT:Here, [eg. C did fully understand the nature of the risk when he swam in the pool and clearly exercised free choice when accepting the risk, so D can rely on the defence of volenti].

An Exclusion Clause under Section 2(1) can limit or exclude liability, provided it is ‘reasonable’ under the Unfair Contract Terms Act 1977.

IF RELEVANT: Here, [eg. the exclusion clause on the warning sign could exclude D’s liability if it was considered to be reasonable, for example being clear enough for C to understand].

TO CONCLUDE, [eg. D will / will not be liable OR D will pass liability onto Z].

Question 19

19. As a Remedy…

Answer 19

As a REMEDY, for C’s personal injury [say what it is] the court may award compensatory damages under the DAMAGES ACT 1996, where the aim is to put the claimant in their pretort position.

Pecuniary (financial) losses will be claimed, such as medical bills. Non-pecuniary (nonfinancial) losses will be claimed, such as loss of amenity for the loss of chance to enjoy hobbies/activities.

General damages (cannot be precisely calculated) may be awarded for loss of amenity, pain and suffering, a ‘tariff’ award for the injury itself, future loss of earnings and medical care after the trial. Special damages (can be calculated precisely) may be awarded for loss of earnings and medical care up to the trial, and for any damage to property [say what it is] based on the cost of repair or replacement using the market value at the time of the damage.

C is under a duty to mitigate loss, which means to keep the loss to a reasonable level by seeking prompt medical treatment [and/or getting the property repaired or replaced promptly].
Here, [eg. C will be able to claim pecuniary losses for any medical bills incurred before the trial, and the loss of wages due to the broken arm. These will be awarded in the form of special damages. For the pain and suffering, C will also be able to claim non-pecuniary losses, for which he will be awarded general damages. C must mitigate the loss, meaning he should not use his broken arm until it is healed.]