Chapter 7 - Occupiers Liability

Question 1

What are the two main statutes governing occupiers’ liability in the UK?

Answer 1

The Occupiers’ Liability Act 1957 (OLA 1957) and the Occupiers’ Liability Act 1984 (OLA 1984).

Question 2

Whom does the OLA 1957 cover?

Answer 2

Visitors (those with express or implied permission to be on the premises).

Question 3

Whom does the OLA 1984 cover?

Answer 3

Primarily trespassers (those without permission), but also certain categories like people entering under access agreements.

Question 4

What type of dangers do both Occupiers’ Liability Acts address?

Answer 4

“Dangers due to the state of the premises.”

Question 5

Give two examples of dangers covered by the OLA 1957.

Answer 5

1. A visitor falling through a broken floorboard.
2. A visitor slipping on spilled oil on a garage floor.

Question 6

Give an example of a danger NOT covered by the OLA 1957.

Answer 6

A visitor being hit by the occupier’s car as they reverse out of their garage. This would fall under common law negligence.

Question 7

Who is considered an “occupier” under the Occupiers’ Liability Acts?

Answer 7

Someone who has a sufficient degree of control over the premises. Ownership is not required.

Question 8

Can there be more than one occupier of the same premises?

Answer 8

Yes, as demonstrated in Wheat v E Lacon & Co Ltd, where both the brewery and pub managers were deemed occupiers.

Question 9

Provide three examples of who could be considered an “occupier.”

Answer 9

1. A landlord controlling the common staircase in a block of flats.
2. An independent contractor working on someone else’s premises.
3. A homeowner.

Question 10

What is the “common duty of care” owed to visitors under the OLA 1957?

Answer 10

To take such care as is reasonable in all the circumstances to see that the visitor is reasonably safe in using the premises for the purpose for which they are permitted to be there.

Question 11

What factors determine if an occupier has breached the common duty of care?

Answer 11

Similar factors to those considered in common law negligence, including the nature of the danger, the purpose of the visit, the seriousness of injury risked, the cost and practicality of precautions, and the type of visitor.

Question 12

How does the OLA 1957 address the standard of care for child visitors?

Answer 12

It requires a higher degree of care for children than adults, as they cannot be expected to appreciate dangers that would be obvious to an adult.

Question 13

Which case illustrates the concept of “allurements” in relation to child visitors?

Answer 13

Glasgow Corporation v Taylor - A child died after eating poisonous berries from an alluring shrub in a public garden. The court held the occupier should have taken greater precautions due to the allurement.

Question 14

Which case highlights the role of parental responsibility in occupiers’ liability to young children?

Answer 14

Phipps v Rochester Corporation - A five-year-old boy fell into a trench on a building site. The court held the occupier was entitled to assume young children would be accompanied by a responsible adult.

Question 15

How does the OLA 1957 adjust the duty of care for skilled visitors?

Answer 15

The occupier can reasonably expect skilled visitors to appreciate and guard against risks that are “ordinarily incidental” to their job.

Question 16

Give an example of a situation where the occupier’s duty to a skilled visitor would be modified.

Answer 16

A window cleaner falling from a ladder due to a loose window handle. The risk of falling is considered “ordinarily incidental” to the job.

Question 17

Can an occupier escape liability by providing a warning of danger?

Answer 17

Yes, but the warning must be adequate to enable the visitor to be reasonably safe.

Question 18

What factors determine if a warning is “adequate”?

Answer 18

The nature of the warning (specificity), the nature of the danger (hidden vs. obvious), and the type of visitor.

Question 19

Contrast a warning notice with an exclusion notice.

Answer 19

A warning notice informs visitors of a danger, while an exclusion notice attempts to restrict or exclude the occupier’s liability.

Question 19

Under what conditions can an occupier discharge their duty by employing an independent contractor?

Answer 19

1. It was reasonable to entrust the work to a contractor.
2. Reasonable steps were taken to ensure the contractor was competent.
3. Reasonable steps were taken to ensure the work was done properly.

Question 20

Compare the cases of Haseldine v Daw & Son Ltd and Woodward v The Mayor of Hastings regarding independent contractors.

Answer 20

• Haseldine: Occupier not liable for faulty lift maintenance as it was technical work.
  Woodward: Occupier liable for an icy step as it was an obvious danger that should have been checked.

Question 21

Which Act governs occupiers’ liability to trespassers?

Answer 21

The Occupiers’ Liability Act 1984.

Question 22

What are the three conditions for a duty to be owed to a trespasser under the OLA 1984?

Answer 22

1. Occupier is aware of the danger.
2. Occupier knows the trespasser is or may come near the danger.
3. It is reasonable to expect the occupier to offer protection.

Question 24

What factors are considered when assessing the reasonableness of offering protection to a trespasser?

Answer 24

The nature and extent of the risk, the type of trespasser (adult vs. child, deliberate vs. inadvertent), the cost and practicality of precautions.

Question 25

Does the OLA 1984 cover damage to a trespasser’s property?

Answer 25

No, it only covers “injury” meaning death or personal injury (physical or mental).

Question 26

Can warnings be used to discharge an occupier’s duty to trespassers?

Answer 26

Yes, warnings or discouragements can be used. Section 1(5) of the OLA 1984 allows for both.

Question 27

What is a “discouragement” in the context of the OLA 1984?

Answer 27

A physical obstacle that prevents a trespasser from accessing a danger, such as a barrier.

Question 28

Is the defense of voluntary assumption of risk available under the OLA 1984?

Answer 28

Yes, it is preserved by s 1(6) of the Act.

Question 29

Which case illustrates the defense of voluntary assumption of risk in relation to trespassers?

Answer 29

*Ratcliff v McConnell *- The claimant, who knew the swimming pool was partly drained, dived in and injured himself. The court held he had voluntarily assumed the risk.

Question 30

Can an occupier exclude liability for injury to trespassers under the OLA 1984?

Answer 30

The Act is silent on exclusion of liability, leading to debate over whether it is possible. If it is possible, UCTA 1977 and the CRA 2015 do not apply.

Question 31

Is the defense of contributory negligence applicable to claims under the OLA 1984?

Answer 31

Yes, a trespasser’s damages may be reduced if their own carelessness contributed to their injuries.

Question 32

Does the defense of illegality apply to claims under the OLA 1984?

Answer 32

No, the Court of Appeal in Revill v Newbery held that it would undermine the Act’s purpose of protecting trespassers, even those with criminal intent.

Question 33

Can independent contractors be considered “occupiers” for the purposes of the Occupiers’ Liability Acts?

Answer 33

Yes, if they have sufficient control over the premises, they can be subject to the duties owed to visitors and trespassers.

Question 34

What happens when an independent contractor is NOT considered an “occupier”?

Answer 34

Their liability is then determined by the common law of negligence. They owe a duty of care to those they could reasonably expect to be affected by their work, including trespassers.