Defences for OL to visitors?

Question 1

what are the defences for OL to visitors?

Answer 1

• Independent contractors
• warning notices
• exclusion clauses
• contributory negligence/consent

Question 2

what are the rules for independent contractors?

Answer 2

• (S.2(4)) Occupiers’ Liability Act 1957 – If C is injured due to a workman’s negligent work, the occupier may have a defence and can pass liability on to the workman
• 3 requirements:
  a) It was reasonable for the occupier to have given the work to the independent contractor
  b) the contractor hired was competent to carry out the task
  c) the occupier has checked the work has been properly done
• if all 3 satisfied, occupier has a defence and C will have to claim directly from the contractor

Question 3

what are the rules for reasonable for occupier to have given the work to independent contractor?

Answer 3

• more complicated and specialist the work, more likely it will be for the occupier to have given the work to a specialist
• (Haseldine v Daw and Son Ltd.)

Question 4

what are the rules for contractor hired was competent to carry out the task?

Answer 4

-occupier should ask for references or recommendations or check with a trade organisation

• should also check independent contractor is insured
  
  • (Bottomley v Todmorden Cricket Club)

Question 5

what are the rules for occupier has checked work has been properly done?

Answer 5

• more complicated and technical the work and less of an expert the occupier is, more likely occupier should employ an expert to carry out the work and check it has been properly done
• (Woodward v The Mayor of Hastings)-if work not complex, occupier should check himself
• (Haseldine v Daw and Son Ltd.)

Question 6

what are the rules for a warning notice?

Answer 6

• complete defence
• oral or written
• (S.2(4) OLA)-warning ineffective unless “in all the circumstances it was enough to enable the visitor to be reasonably safe”
• (Rae v Marrs (UK) Ltd.)– If premises extremely dangerous or unusual, occupier may be required to erect barriers or additional warnings
• (Staples v West Dorset District Council)– If the danger is obvious and the visitor is able to appreciate it, no additional warning necessary

Question 7

what are the rules for exclusion clauses?

Answer 7

• (S.2(1)) OLA-occupier is able “to restrict, modify or exclude his duty by agreement or otherwise”
• within a warning, an occupier will be able to limit or exclude his liability for injury to visitors
• whether this will work as a defence for child visitor depends on the age and ability of the child to understand the effect of the exclusion
• will work for residential occupiers
• business occupiers
  
  • (S.2(1) Unfair Contract Terms Act 1977)-business occupiers cannot exclude liability for personal injury or death
  • can still exclude liability for damage to property