Liability for Defective Premises Flashcards
What is the content of section 1 of the Occupiers Liability Act 1957?
SECTION 1
(1) Duty is in relation to visitors in relation to dangers on or state of premises
(2) Defines occupier, person occupying or actuallly in control, doesn’t have to be actual owner
(3) Defines premises, any fixed or moveable structure including vechiles and says the duty extends to damage to property (but not loss)
What are the two main acts that give the duties for defective premises and what is the difference between the two?
- Occupiers Liability Act 1957, relates to lawful visitors
- Occupiers Liability Act 1984, relates to unlawful visitors / trespassers
What is the content of section 2 of the Occupiers Liability Act 1957?
SECTION 2
(1) Occupier owes the common duty of care to all visitors
(2) Duty is to take care to ensure the visitor is reasonably safe for the purpose which they have been invited
(3)(a) Occupier owes a higher standard of care to children, expected to be less careful than adults
(3)(b) Occupier can expect a person exercising work which he is skilled in to guard against a risk ordinarily associated with it
(4)(a) If damage is caused by a danger the visitor was warned of an occupier may be able to discharge his duty
(4)(b) If harm is caused by faulty work that was entrusted to an independent contractor and the occupier took steps to ensure they were competent, they are not liable
(5) Occupier not liable for a risk willingly accepted
(6) People entering the premises for any purpose in the exercise of a right conferred by law are treated as visitors
What do sections 3 and 5 of the Occupiers Liability Act 1957 provide?
S3- Effect of Contract on Liability to Third Party
* (1) Where bound by contract to allow strangers to the contract to enter premises, he cannot exclude or restrict the duty of care owed to them
* (2) Contract does not make an occupier answerable to strangers of the contract for dangers due to faulty work by persons other than him or those under his control
S5- Implied Terms in Contract (i.e. where a person enters the occupiers premises under a contract with the occupier, he is obligied to extend the common duty of care to them)
What further points from the common law can be used to develop the duty owed to visitors?
- Roles v Nathan: An occupier can reasonably expect tradespersons to guard against risks associated with their jobs
- Wheat v Lacon: An occupier is someone with a sufficient degree of control over the premises to determine who can enter and exit. A person need not have exclusive occupation and joint liability is available
- Phipps v Rochester: D is liable to take into account that reasonable parenrs would not permit their child to be sent into danger without protection
What other statutory provisions are relevant to take into account in relation to lawful visitors?
- Consumer Rights Act 2015, any unfair terms or exclusions in business and consumer settings
- Unfair Contract Terms Act 1977, any unfair terms or exlcusions in business to business contracts
- S4 Defective Premises Act 1972, Landlords duty of care to repair premises
What is the content of S1 of the Occupiers Liability Act 1984?
(1)(a) A duty may be owed to persons other than visitors in respect of suffering an injury on premises because of danger or state of them
(2) Person who is to be treated as an occupier of premises and visitor are
* (a) Any person who owes in relation to premises the duty under S2 OLA 1957, and
* (b) Those who are visitors for purpose of that duty
(3) An occupier owes a duty to another in respect to a risk if
* (a) he is aware of or has reasonable grounds to believe a danger exists
* (b) he knows someone may come within the vicinity of the danger
* (c) the risk is one against which in all circumstances he may be reasonably expected to offer some protection
(4) The duty is to take such care as reasonable in the circumstances to see that the person does not suffer injury from the danger concerned
(5) Duty may be discharged by givining a warning of the danger
(6) Not liable for a risk willngly accepted
(8) Person does not incur any liability in respect of loss or damage to property
How has the case law developed the duty owed to trespassers?
- Herrington v British Rail Board, occupiers owe trespassers a duty to take such steps as common sense or humanity would dictate to reduce danger
- Tomlinson v Congleton BC, No duty to protect against obvious risks. Balance should be struck between magnitude / gravity of risk with the social and financial costs of preventative measures
What is the effect of the Defective Premises Act 1972?
- Imposes a strict liability upon anyone taking out work on a dwelling to ensure that it is done in a workmanlike or professional manner, with proper materials so that the dwelling be fit for habitation
- Read inconjunction with the Latent Damage Act 1986 and Building Safety Act 2022 (esp. s148)
