Occupier liability notes book Flashcards
COMMON LAW -PRE 1995
CONTRACTUAL ENTRANT
Highest degree of care owed
Implied warranty that premises were as safe as reasonable care and skill could make them
Eg. Hotel guest or cinema patron
common law pre 1995
Invitee
Lower duty owed
Is a person who without any contract, entered on business of interest both to himself/herslef and the occupier.
Duty: to prevent damage from unusual danger, of which he knew or ought to have known
Eg shop customer
COMMON LAW- PRE 1995
Licensees
Lower duty again
To warn him of any concealed danger or trap which he acctually knew
A person who entered with the occupier’s express of impolied permission but without conferring any material benefit on the occupier
Eg. Social guest
COMMON LAW 1995
TRESPASSERS
Merely obliged not to deliberately or recklessly injure
Tresspasser was (and still is) a person who enters (or remains) on property without the express of implied consent of occupier
Eg. Burglar
Child tresspassers could become licensees it could be proved they tresspassed because they were drawn to an ‘allurement’ (Latham v Johnson- allurement= an object both “fascinating and fatal”)
Donovan v Landy held that duty of care is applied if the tresspassers presence is known
McNamara v ESB established tresspassers were owed a duty of reasonable care (reasonably foresee and reasonable care as circumstances demanded)
British Railways Board v Herrington [1972]- if occupier knows or as good as knows of presence and likelihood of serious danger, duty of care arises (to act in “humane manner”)
WHAT IS THE ACT CALLED
OCCUPIER LIABILITY ACT 1995
Scope of the act???
S.2(1)- occupiers duty to entrants are in respect of dangers resulting from the state of the premise.
Occupier who is negligent in any other context may be sued for negligence at common law eg Hackett v Calla Associates- P was assualted by member of security staff engaged by occupier of premises)
Allen v Trabolgan Holiday Centre LTD- obligations under legislation are limited to static condition of land and buildings- liability for harm arising out of activity taking place on premises is to be determined under rules of negligence.
who are occupiers??
S.1 defines as (summarised) someone with control over state of pemisie, where more than one the extent of duty owed depends on the degree of control each has over state of premises and the danger.
In Hackett v Calla Associates Ltd- both D were occupiers, first D was owner and second held licence to operate the premises.
what is a premises???
Includes not only land, water and any fixed or movable structures on land or water but also vessels, vehicles, trains, aircraft and other means of transport.
Boyle v Iarnrod Eireann/ Irish Rail
Held- train constituted a premises
who are ‘visitors’ under the 1995 act???
An entrant, other than recreational user, who is present on premises at the invitation, or with the permission, of the occupier/ who is present on premises by virtue of an express or implied term in a contract, and an entrant as of right
Under S.3 occupier owes a duty of care” to take such care as is reasonable in all circumstances.. To ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.”
May be affected by the plaintiff’s contributory negligence
May also be reduced if injury is sustained on premises in the company of another person who may be expected to supervise the visitor.
case law on ‘visitors’ under 1995 act (6)
Heaves v Westmeath County Council- Distinction between visitor and recreational user. HELD- the payment of entry fees made P a visitor. If the payment were for car Parking only, the plaintiff would have been a recreational user.
Vega v Cullen- P was a visitor and it was held that there was no distinction between the common law duty of care and the statutory duty of care under 1995 Act.
Williams v TP Wallace Construction Ltd. - distinction bewteen visitor and trespasser- HELD- P wasn’t a visitor, he did not have permission to be on the roof and was therefore a trespasser.
Heaves v Westmeath County Council- the appropriate standard of care was held to have been reached by the occupier
Coffey v Moffit T/A Moffit’s Shoes- occupier had taken reasonable care with regard to the danger
Prisoners are “visitors” while in prison. Power v Governor of Cork Prison HELD the danger was foreseeable and could have been remidied and warning notice was insufficient to claim “common duty of care”
can duty of care be modified for visitors???
Common duty of care owed to visitors can be extended, restricted, modified or excluded by s.5 HOWEVER the occupier is not permitted to reduce the level of his or her duty below that owed to recreational users and trespassers.
who are recreational users????
Entrants who are…
with or without occupiers permission or at implied invitation
Is present on premises without a charge (other than vehicle parking) being imposed for the purpose of engaging in a recreational activity
Including entrant admitted without charge to a national monument
who is not a recreational user
A member of occupier’s family who is ordinarily resident on the premises
Present at the express invitation of the occupier or such a member
Present with the permission of the occupier or such a member for social reasons connected with the occupier or such a member
recreational user theory…
Recreational users can be on premises with permission or implied invitation not making them visitors provided they are present for the purpose of engaging in a recreational activity.
Occupiers are entitles to exclude any entrant including rec users from property (s.8)
Don’t owe duty of care in negligence, occupier must only ensure they do not injure the recreational user or trespasser intentionally or act with reckless disregard for their safety
what are trespassers???
An entrant other than a recreational user or visitor
9 factors whether the occupier has acted with reckless disregard for a recreational user or trespasser S.4(2)
Reckless was considered in Wier Rodgers v Sf Trust Ltd- court held that the act did not require the occupier to fence off the coastline and place warning notices for an obvious danger.
9 factors whether the occupier has acted with reckless disregard for a recreational user or trespasser S.4(2)
If occupier knew or had reasonable grounds for believing that a danger existed on the premises
If occupier knew or had reasonable grounds for believing that the person and in the case of damage the property of the person was or was likely to be on the premises.
If O knew or had reasonable grounds for believing that the person or property of the person was in or was likely to be in vicinity of the place where the danger existed.
Whether the danger was one against which in all circumstances the occupier might reasonably be expected to provide protection for the person and property of the person
The burden on occupier of eliminating the danger or of protecting the person and property of the person(difficulty/expense/impracticability regarding character of premises and degree of danger)
Character of the premises (likely to be used for recreational activity/ desirability of maintaining the tradition of open access of premises for such activity)
Conduct of the person and care they may reasonably be expected to take for own safety having regard to their knowledge
Nature of any warning given by O to a person of the danger
Whether the person was on the premises in the company of another and the extent of supervision and control they may be R expected to exercise of the other’s activities.
MODIFICATION OF OCCUPIERS’ DUTY TO ENTRANTS
S.5- by express agreement or notice an occupier may extend his or her duty towards any category of entrant.
They can also restrict, modify or exclude his or her duty subject to certain qualifications (by express agreement or notice). It must be reasonable in all circumstances- if not won’t be bound.
Where they seek to achieve their objective by notice rather than by obtaining visitor’s express agreement, they must take reasonable steps to bring the notice to the attention of v.
O will be presumed, unless contrary is shown, to have taken such reasonable steps if notice is prominently displayed at normal means of access to premises.
Occupier may not reduce the duty owed to a visitor below that owed to rec user and trespassers.
WARNINGS TO VISITORS:
S.5(5) - where injury or damge is caused to a visitor or visitor’s property by a danger of which the visitor had been warned by O or other- the warning is not enough to absolve liability unless in all circumstances it was enough to enable V to avoid injury or damage so caused.
DUTY OF OCCUPIERS’ TOWARDS STRANGERS TO CONTRACTS:
S.6 The O will not normally be in a contractual relationship with strangers to contract- they will be Visitors by virtrue of S.1. “Visitor” includes an entrant present with the occupier’s permission or one who is present “by virtue of an express or implied term in a contract”, bearing in mind that the contract need not necessarily be with the occupier.
O cannot exclude or modify liability owed to those who are strangers to the contracts. (S,6)
S.6(2)- entrant shall be deemed a stranger to contract if entrant is not for the time being entitled to the benefit of the contract as a party to it or as the successor by assignment or otherwise of a party to it.
A party who has ceased to be so entitled shall be deemed to be a stranger to the contract.
S6 prevents O from using contract with one person to reduce or remove liability to other persons but does not prevent S5 to achieve the same objective. (can be doen by express agreement with the other persons or by notice 5.2)
LIABILITY OF OCCUPIERS FOR THE NEGLIGENCE OF INDEPENDENT CONTRACTORS:
S.7 provides an occupier is not liable to an entrant for injure of damage caused to entrant or their property by reason of a danger existing on the premises due to negligence of independent contractor employed by O if O took all reasonable care unless O has or is ought to have knowledge of “the fact that the work was not done properly”.
Will be considered to have taken reasonable care if they take steps as ought reasonably to be taken to satisfy himself or herself that the independent contractor was competent to do work in question.
SAVING PROVISION:
S8 of the Act provides that nothing in the act is to be construed as effecting any rule of law relating to…
Self defense, defense of others and defense of property
Liability imposed on an occupier as a member of a particular class od persons
Non delegable duties
SELF DEFENCE, DEFENSE OF OTHERS AND PROPERTY:
Related to rights of O to respond to threats to their person or property.
DPP v Barnes (burglary) court said such an aggressor may expect to be lawfully met with the retaliatory force to drive him off or immobilize or detain him and end the threat with he presents to the personal rights of the householder and his or her family or guests.
This is so whether the dwelling-house which he enters is, or appears to be, occupied or unoccupied when he breaks into it.
Underlying principle is that of ‘reasonable force’. This will be a question of fact in every case.
The Criminal Law (Defence and the Dwelling) Act 2011, introduced in the wake of DPP v Nally
^ provides some refinements to the legal rights of householders to protect themselves, their families and dwellings.
In the Nally case, Defendant Occupier confronted intruder attempting to enter his kitchen at the rear of his house. Dretrieved his shotgun. He claimed he accidently discharged the weapon, injuring the intruder. Struggle ensued and intruder escaped to the public road. D reloaded and fatally shot intruder on road. D was convicted of manslaughter by jury but was quashed by C CA. Held that trial judge directions to jury on the defense of self defense had denied jury returning a not guilty verdict.
LIABILITY IMPOSED ON AN O AS A MEMBER OF A PARTICULAR CLASS OF PERSONS
S8 b provides rhat any liability imposed on O as a member of a particular class will be unaffected by the Act. Non- exclusive list includes….
Persons by virtrue of a contract for the hire of, or for the carriage for reward of persons or property in any vessel, vehicle, train, aircraft or other means of transport
Persons by virtue of a contract of bailment and
Employers in respect of their duties towards their employees.
NON-DELEGABLE DUTIES UNAFFECTED BY THE ACT
S.8c - any liability imposed on occupier for a tort committed by another person in circumstances where the duty imposed on the occupier is of such a nature that its performance may not be delegated to another person are not affected by the 1995 Act.
