Liability To Lawful Visitors (OL) Flashcards
What duty does an occupier owe a lawful visitor?
The OLA 1957 states that an occupier owed a common duty of care to all lawful visitors, according to s.2(2) this means “to take such care as in all the circumstances is reasonable to keep the visitor reasonably safe for the purpose for which he or she is invited to be there”
How safe must the occupier keep the visitor?
Only reasonably safe, using an objective test, did the occupier act as a reasonable person would have done to keep the visitor safe?
E.g. Laverton v Kiapasha Takeway (2002)
Customer slipped over in a takeaway on rainy day, broke ankles, shop bad fitted slip resistant tiles and regularly mopped floor
Court decided they had taken reasonable care
Is an occupier expected to maintain completely safe premises?
No, visitors can be expected to take reasonable care for their own safety
E.g. Rochester Cathedral v Debell (2016)
C tripped on minute defect in bollard in pavement of cathedral, claim failed as: tripping, slipping and falling are everyday occurances, accidents can and do happen, occupier under duty to keep reasonably safe, not to guarantee safety, state of premises must pose “real source of danger” which a reasonable occupier would recognise needs remedial action
Can a duty for a specific risk last forever?
No, in Cole v Davis-Gilbert and others (2007), C was inured when trapped trapped foot in home and food, left over from a village fete 2 years ago, court decided duty owed by organisers could not last indefinitely
What is the special duty of care to child visitors?
Under s.2(3)(a) OLA 1957 “on occupier must be prepared for children to be less careful than adults”
A higher duty of care is owed as they are especially vulnerable as they are less likely to appreciated risks an adult would and may be attracted to danger.
What is example of child visitors raising duty of care?
Jolley v Sutton LBC (2000)
14 year old and his friend found old boat abandoned on council estate where they lived. Decided to repair it, boat fell on him, he was paralysed.
Court decided council breached duty of care by failing to move boat that would be attractive to children, and some injury was foreseeable with children playing on it, children show considerable ingenuity in finding ways to put themselves in danger
What is the exception to raising the standard of care?
Occupier entitled to assume that very children will be accompanied by someone looking after them, reducing standard
E.g. Phipps v Rochester Corporation (1955), 5 year old injured after falling down trench dug on open piece of ground, fault lay with parents
Sometimes neither at fault e.g. Bourne Leidure v Marsden (2009)
How is the duty of care adjusted for professional visitors
They will owe them the common duty of care however as of s.2(3)(b) OLA 1957 “an occupier may expect that a person in the exercise of his trade will appreciate and guard against any special risks which they ought to know about through their work”
This reduces the standard of care in respect to special risks associated to their job.
E.g. Roles v Nathan (1963)
2 chimney sweepers died from inhaling poisonous fumes, warned of danger, should have known
What are the defences for claims by a lawful visitor?
Independent contractors
Warning notices
Exclusion clauses
Contributory negligence - partial defence, consider degree of care a reasonable visitor should take for own safety, reduce compensation if C partly responsible
Consent - complete defence if C willingly accept a risk of negligence by occupier
What is the defence of hiring an independent contractor?
When visitor injured due to danger created by an independent contract, occupier has defence under s.2(4)(b)
Provided: 1. It was reasonable to hire a contractor, 2. Reasonable precautions were taken to ensure contractor was competent and 3. If nature of work allows, reasonable checks were taken to inspect work
Examples of steps of independent contractor defence
Step 1: Haseldine v Daw 1941
C killed when lift plunged after being negligently repaired, occupier not liable as appointed an apparently competent firm, and nature mad wit reasonable to entrust task to specialist
Bottomley v Todmorden Cricket Club (2003)
Guest injured dying firework display, hired stunt team, liable as did not take reasonable care to choose competent contractor
Woodward v Mayor of Hastings (1945)
Child injured on icy school steps workmen had cleared snow off, occupiers liable as failed to take responsible steps to check work, danger should’ve been obvious
How do warning notices work?
Under s.2(4)(a) OLA 1957, liability is discharged if they give effective warning of the danger, sufficient to keep visitor reasonably safe.
E.g. Rae v Marrs (1990) C entered unlit shed and fell in pit before switching light on, not sufficient as couldn’t be seen
E.g. Staples v West Dorset (1995) slipped on algae covered rocks, danger obvious, no need for sign
What are exclusion clauses?
Occupiers of residential properties can restrict liability for death, personal injury and property damage by preventing duty in first place. Consumer Rights Act 2015 prevents businesses from restricting liability for death or personal injury.
