Occupier's Liability Flashcards
Tom has recently bought a house in the country.
In which ONE of the following situations is Tom most likely to owe a duty of care to the trespassers?
Fred breaks into Tom’s house one night intending to steal anything of value. He is hurt when he falls through the floor in a room Tom is renovating.
Jane wanders onto Tom’s land unwittingly when she is out enjoying a walk in the country. She falls down an unfenced mineshaft and breaks her arm. When Tom bought the house neither his lawyer nor surveyor mentioned that there could be mine workings on the land.
Local children use a shortcut across Tom’s land to get to the nearby river. The shortcut goes across Tom’s driveway and then over an old footbridge which is not safe. Tom has put up a notice where the children enter his land saying ‘Keep-out’ and another notice on the bridge saying ‘Danger - keep off’. Despite the sign Amy, aged 9, uses the bridge and is badly cut by a rusty nail which protrudes from the side.
Correct answer
Josh, aged 12, also enters Tom’s land to use the shortcut. He is hit when crossing Tom’s driveway by a car being driven at speed by Tom.
Feedback
Well done. The correct answer is C. A duty is most likely to arise in C as Tom knows children trespass and is aware of the danger on his land. Due to Amy’s age, it is also likely to be reasonable to offer her some protection. This means the three requirements (of s1(3) of the OLA 84) are likely to be met giving rise to a duty of care. Note, however, that Tom must also be in breach of the duty in order to be liable. In A and B Tom appears to lack the requisite knowledge to give rise to a duty. In D, the incident arises due to an activity on Tom’s land and so falls outside the scope of occupiers’ liability.
Which ONE OR MORE of the following requirements must be satisfied before an occupier owes a duty of care to a trespasser?
The occupier must be aware of the danger or have reasonable grounds to believe that it exists.
The occupier must know, or have reasonable grounds to believe, that the trespasser is in the area of danger, or may come into the area.
The risk is one against which the occupier might reasonably be expected to offer protection.
The occupier must have failed to take reasonable care to see that the trespasser does not suffer injury by reason of the danger.
Feedback
Well done. The correct answers are A, B and C. These are all preconditions which must be satisfied before the duty of care arises.
Failure by the occupier to take reasonable care relates to breach of the duty once it has arisen.
Is this statement TRUE or FALSE?
Where a lawful visitor suffers damage to property on premises occupied for business or trade purposes, any exclusion notice will automatically be valid.
True
False
Feedback
Well done. The statement is false. Where the lawful visitor suffers damage to property on premises occupied for business purposes, any exclusion notice must be reasonable (under UCTA 1977) or be fair (under CRA 2015) in order to be relied upon.
Sally, a customer in a shop, enters a door marked “Private - No Entry” and is injured when she trips over a loose floor-tile.
Which one of the following statements is CORRECT?
Sally is a trespasser and may be owed a duty by the shop depending on the circumstances.
Sally is a trespasser and is, therefore, not owed a duty by the shop.
Sally is a lawful visitor and is, therefore, owed the common duty of care.
It is unclear from the facts whether Sally is a lawful visitor or a trespasser.
Feedback
Well done. The correct answer is A. Sally is a trespasser and may be owed a duty by the shop depending on the circumstances. If a lawful visitor exceeds the occupier’s permission, they become a trespasser. Sally is a trespasser and may be owed a duty if the conditions (in s.1(3) Occupiers’ Liability Act 1984) are all satisfied.
An occupier is able to discharge the duty owed to a visitor by adequately warning of a danger on the premises.
Which ONE of the following statements is CORRECT?
A notice, which says “DANGER”, will always be sufficient to absolve an occupier from liability.
A notice, which says, “All visitors enter at their own risk” will be an adequate warning to an adult visitor.
A notice, which says, “The management accepts no liability for loss or damage sustained on these premises” will be an adequate warning to an adult visitor.
A notice, which says, “Do not use this staircase. It is dangerous. There is a safe one at the rear of the premises” will be an adequate warning to an adult visitor.
Feedback
Well done. The correct answer is D. A notice, which says, “Do not use this staircase. It is dangerous. There is a safe one at the rear of the premises” will be an adequate warning to an adult visitor. The wording of the warning is sufficient to enable an adult visitor to be reasonably safe.
Which ONE OR MORE of the following correctly describe the duty owed by an occupier of premises to their lawful visitors?
The same duty common to all visitors.
A duty to take reasonable care to see that visitors are reasonably safe.
A duty to ensure that visitors do not suffer injury on the premises.
Feedback
Well done. The correct answers are A and B. An occupier owes the same duty common to all visitors. That is, a duty to take reasonable care to see that visitors are reasonably safe. (It would not be correct to only say that the duty is to ensure that visitors do not suffer injury, as the duty is not absolute, it is to take reasonable care).
Consider the scope of the common duty of care that an occupier owes their lawful visitors.
Which ONE of the following statements is INCORRECT?
The common duty of care extends to damage to a visitor’s property.
The common duty of care requires an occupier to reach the standard of a reasonable occupier.
The degree of care required of an occupier never varies from visitor to visitor.
To breach the common duty of care, an occupier must have been at fault.
Feedback
Well done – C is the correct answer. What is “reasonable care” for a visitor’s safety will sometimes vary from visitor to visitor eg children and skilled visitors.
A leisure company recently acquired a stately home that will be open to the public. The company has consulted its solicitors to obtain advice on the nature of any duty that it will owe to members of the public who visit the stately home in a lawful manner.
Which of the following statements best describes the duty that will be owed by the leisure company under the Occupiers’ Liability Act 1957?
A duty to take reasonable care to ensure that the visitor is reasonably safe whilst they are at the stately home and using it for the purpose for which they are permitted to be there.
A duty to warn the visitor of any hidden dangers at the stately home.
A duty to ensure that the visitor’s property is not damaged at the stately home.
A duty to discourage the visitor from undertaking risky activities whilst at the stately home.
A duty to take reasonable care to see that the visitor is not injured whilst at the stately home.
Feedback
Well done. Option A is correct because s2(2) of the Occupiers Liability Act 1957 states “The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”
Option B is not the best answer as this is only one part of the potential duty that could be owed to a visitor.
Option C is not the best answer as an occupier may be liable for a visitor’s property damage but this not the key aspect of an occupier’s duty under the OLA 1957
Option D is not the best answer as an occupier is only liable for damage caused by the state of the premises, not for risky activities performed on them. See Lord Hoffman’s judgment in Tomlinson v Congleton Borough Council [2003].
Option E is not the best answer as this option is more akin to the proactive duty owed by an occupier to a non-visitor.
A solicitor’s client owns and runs a clothes shop. They contracted with a known and reputable company to supply and fit new stairs to the second floor of the shop. The work was carried out one evening while the shop was closed to customers. The next day a customer trod on a long protruding nail in the middle of the bottom step, causing a severe injury to their foot.
Which of the following statements best explains whether the shop owner will be liable for the injury to the customer?
No, because the shop owner used a reputable company to carry out the work and is therefore not at fault in any way. The customer should bring their claim against the company that installed the stairs.
No, because the shop owner used a reputable company to carry out the work and it was not reasonable for the shop owner to check the stairs before opening the shop to the public. The customer should bring their claim against company that installed the stairs.
Yes, because the customer was injured due to a breach of the duty of care the shop owner owes their visitors.
Yes, because the customer was injured due to a breach of the duty of care the shop owner owes their visitors. The shop owner cannot delegate this duty of care to the company that installed the stairs.
Yes, because, despite the fact that the shop owner used a reputable company to carry out the work, it was reasonable to expect the shop owner to check the stairs before opening the shop to the public.
Feedback
Well done. E is the correct answer as it considers the requirements under the 1957 Act and correctly applies the facts of the question.
A is wrong because it fails to consider all elements of the requirement that the occupier, who employs an independent contractor to carry out work on their premises, must have done all that reasonable care requires of them under the 1957 Act. Entrusting the work to an independent contractor is generally accepted to be reasonable. The fact that the independent contractor is ‘reputable’ meets the requirement that steps were taken to ensure that the contractor was competent. However, it fails to consider whether the occupier had taken such steps (if any) as they reasonably ought in order to satisfy themselves that the work had been properly done. Without considering this final requirement, it is not possible to state that the occupier was not at fault.
B is wrong because, while it does consider the final requirement, it is incorrect on the facts of the question. The fitting of a new staircase is work of a technical nature. However, no specialist knowledge was required to see that a nail was sticking out of one of the steps by checking the contractor’s work. The shop owner had not, therefore, discharged their duty of care.
C is incorrect as it is an oversimplification of the breach issue. It does not consider the requirements under the 1957 Act (set out above), so is not the best explanation of why the shop owner will be liable.
D is incorrect for the same reason as C. In addition, it is wrong because, if an occupier meets all the requirements under the 1957 Act (set out above), it can, in effect, delegate its duty of care by employing independent contractors.
A householder invited a pest controller into their home in order to remove a wasps’ nest from an old shed. The householder did not warn the pest controller that the shed was near to collapse. The pest controller removed the nest and the shed collapsed on him causing him injury.
Which of the following statements best identifies whether the pest controller can make a claim against the householder?
The pest controller will not be successful in a claim as he was skilled in the removal of wasps’ nests. He entered the property to exercise a special skill.
The pest controller will not be successful in a claim as the householder could expect the pest controller to be aware of the risks of entering a private property.
The pest controller will not be successful in a claim as this risk could be considered one of the ordinary risks of his profession.
The pest controller will be successful in his claim. He could be expected to protect himself from the dangers associated with pests but not from those risks which are not associated with his skill.
The pest controller will be successful in his claim because he was not a trespasser on the land.
Feedback
Well done. Option D is correct because the collapse of the shed is not a risk of which he should have been aware. It is a risk ancillary to his profession. (Roles v. Nathan [1963]).
Option A is wrong because the pest controller is only expected to protect against risks ordinarily associated with his profession i.e. from wasps, not the condition of a dangerous shed
Option B is wrong because the householder is not entitled to expect visitors on the property to guard against risks such as a structurally defective shed.
Option C is wrong because a structurally defective shed is not an ordinary risk of his profession
Option E is wrong because this is not the correct test. Lawful visitors do not automatically have a successful claim by virtue of invitation on to the premises. They need to prove the occupier breached the duty and caused loss.
A specialist carpenter is employed by a man to carry out repairs to a wooden floor and wooden staircase in one of the rooms of the man’s house. During the repair work the room in question is closed off by a door on which the man has put a prominent notice reading “Keep Out”.
Which of the following persons is most likely to be able to make a claim for damages against the man under the Occupiers’ Liability Act 1957?
The man’s teenage son who enters the room and is injured when he falls through a rotten floorboard.
The specialist carpenter who is injured by a splinter when repairing one of the wooden floorboards.
A visitor to the man’s house who, after the work to the floor is completed and visually inspected by the man, enters the room with permission and is injured when one of the new floorboards gives way.
A visitor to the man’s house who slips on some wood floor treatment oil which the specialist carpenter has spilt in the corridor outside the room.
A friend of the man who, after the work to the staircase is completed is injured when sliding down the new wooden bannister.
Feedback
Well done. Option D is the best answer. Although the wood floor treatment oil was spilt by the specialist carpenter this is something the man could easily have checked. So not clearing away the spill or warning the visitor about it in some way is likely to be a breach of his duty as occupier to his visitor.
Options A and E are wrong because a person who exceeds the scope of their permission (either geographical or by purpose) is not a visitor and so not covered by the common duty of care under the OLA 1957. Accordingly neither of the persons in Options A and E would fall under the OLA 1957.
Options B and C are wrong because although the man would owe a duty of care to the persons in Options B and C, the man is unlikely to have breached that duty. For Option B the person injured enters in the course of his calling and should guard against risks incidental to that calling (s2(3)(b) OLA 1957). For Option C the injury appears to be due to the specialist carpenter’s faulty repair work. Provided it was reasonable for the man to have used a contractor carpenter and he checked the carpenter he chose was competent, the man is unlikely to be in breach of duty as the man visually inspected the work but the load bearing adequacy of a floorboard would not be expected to be checked (s2(4)(b) OLA 1957).
A solicitor’s client owns and runs a hotel. Their in-house maintenance team have been repairing a leak in the fountain that is in the hotel foyer. To access the leak, the maintenance team have had to remove a marble slab from the surface of the floor which exposed a large hole. A hotel guest, running to catch the lift in the hotel foyer while looking at their mobile phone, fell into the hole, breaking their pelvis as a result. There is a large notice at the reception desk, at the entrance to the foyer, stating: ‘Warning Fountain Repair Work: The hotel management apologises for any inconvenience caused by repair work being carried out in the hotel foyer but accepts no responsibility for any injury, loss, or damage howsoever caused to guests.’
Which of the following statements best explains whether the hotel will be liable for the injury to the guest?
Yes, because the warning did not enable the guest to be reasonably safe as it was too general in nature.
Yes, because the warning did not enable the guest to be reasonably safe as it was too general in nature. However, it is likely that the guest’s damages will be reduced as they were contributory negligent.
No, because, while the warning did not enable the guest to be reasonably safe as it was too general in nature, the hotel have excluded their liability.
No, because reasonable steps have been taken to bring the risk of the problem to the guest’s attention and the wording of the warning covers the loss suffered by the guest.
No, because the warning enabled the guest to be reasonably safe as the hole was an obvious danger.
Feedback
Well done. B is the correct answer. The guest is a visitor who has been injured due to the state of the hotel premises and their claim will be governed by the Occupiers’ Liability Act 1957 (the 1957 Act). Under the 1957 Act, a warning will not discharge the occupier’s duty of care unless it is adequate ie it enables the guest to be reasonably safe. This warning is too general in nature as it does not alert visitors to the specific problem with the floor. However, the guest’s damages will be reduced as they were contributory negligent on the facts. They were careless for their own safety by running for the lift etc and not paying full attention. This carelessness contributed to the injury that they suffered.
A is not the best answer as it fails to take account of the fact that the hotel’s liability will be reduced due to the defence of contributory negligence.
C is wrong because the exclusion notice will be void as against the guest. It appears that the notice is prominent and so, at common law, the hotel has taken reasonable steps to draw it to the attention of guests. However, it will be subject to the Consumer Rights Act 2015 because the hotel is a ‘trader’ and the guest is a consumer. The notice is, therefore, void as regards the guest’s personal injury.
D is wrong because it incorrectly states the test for when a warning will be adequate under the 1957 Act (these are the common law requirements for an exclusion notice).
E is wrong because the fact that it may, or may not have been an obvious danger did not, in itself, make the warning adequate under the 1957 Act.
An occupier of a nightclub instructed a building company to carry out repairs to the nightclub’s ceiling. The occupier had obtained favourable references from other businesses confirming that the building company was competent. After the building company had completed the ceiling repairs, the occupier conducted an inspection that suggested the work had been carried out in a competent manner. Unfortunately, on the first evening the nightclub opened after the completion of the repairs, the ceiling collapsed, causing injury to a number of nightclub guests. An expert inspection of the ceiling revealed that very poor quality plaster was the cause of the collapse. The occupier had put up a clearly visible sign in the nightclub excluding him from liability for any form of harm that should occur in the nightclub.
Which of the following best explains why the occupier may be able to show that he had discharged the duty he owed to the nightclub guests?
It was the building company, rather than the occupier, who had repaired the ceiling.
The occupier did not know that the plaster was of poor quality.
It was reasonable for the occupier to use the building company, rather than making the repairs himself, he had checked that the building company was competent and he had checked their work on completion.
The occupier had obtained favourable references from other companies who had used the building company.
The occupier’s sign excluded him from liability.
Feedback
Well done. Option C is correct because s2(4)(b) of the Occupiers’ Liability Act 1957 states “where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.
Option A is not the best answer because unless the strict requirements of s2(4)(b) are satisfied, the occupier could still be liable if nightclub guests are injured due to the state of the premises.
Option B is not the best answer as it does not account for the strict requirements of s2(4)(b).
Option D is not the best answer as this alone is insufficient. The occupier still needed to satisfy the other two requirements of s2(4)(b).
Option E is not the best answer because under the Consumer Rights Act 2015, it is not possible to exclude liability for personal injury. Also, this would be relevant only as a defence, not as a potential discharge of the occupier’s duty.
The Claimant, a child, aged 7 was involved in an accident while visiting a wildlife centre on a school trip. The Claimant while unsupervised, sneaked under a fence into a disused quarry. He slipped down a steep and dangerous slope and broke a leg. He also suffered recurring nightmares which have been diagnosed as PTSD.
Which of the following statements best describes from whom the Claimant could seek to recover damages?
The Claimant may sue his teacher and his local education authority for the failure to supervise him.
The Claimant may sue the occupiers of the quarry as their premises were dangerous.
The Claimant may sue the occupiers of the quarry. The occupiers of the quarry will assert that the Claimant was an unlawful visitor and therefore a trespasser.
The Claimant may sue the teacher and local education authority for negligence and the occupiers of the quarry for breach of statutory duty under one of the Occupiers’ Liability Acts.
The Claimant may sue the teacher, local education authority and quarry occupiers for negligence in failing to supervise him and not putting up adequate warning signs.
Feedback
Well done. Option D is the best answer because the Claimant may sue the teacher and local education authority for negligence. He may also sue the quarry occupiers under one of the Occupiers’ Liability Acts. The courts will decide how to apportion liability between the Defendants.
Option A is wrong because this does not consider a claim against the occupiers of the quarry.
Options B and C are wrong because this does not consider a claim against the teacher and LEA. A duty may be owed to a trespasser under the OLA 1984.
Option E is wrong because the claim against the occupier would be under the OLA.
A solicitor is instructed by a client who cut their hand, broke their leg and damaged an expensive mobile phone when they fell while attempting to break into a factory at night by climbing over one of the high perimeter walls. Following several recent break-ins, the factory owner had installed razor wire on the top of all the perimeter walls. The factory owner accepts that there is no notice warning of the wire’s presence on the wall. The solicitor’s client fell upon touching this wire.
There is a prominent notice at the entrance to the factory which reads: ‘The owner accepts no liability for any injury or damage suffered by anyone, howsoever caused, on these premises’.
Which of the following statements best explains whether the client will be successful in their claim against the factory owner?
Yes, because, the factory owner was clearly aware of the danger, knew that trespassers could come within the vicinity of the danger and the danger of touching the razor wire was a hidden hazard at night. The factory owner was, therefore, expected to offer some protection against the risk of falling off the wall, eg a warning sign. The breach of this duty of care caused the client’s injuries and property damage.
Yes, because, the factory owner was clearly aware of the danger, knew that trespassers could come within the vicinity of the danger and the danger of touching the razor wire was a hidden hazard at night. The factory owner was, therefore, expected to offer some protection against the risk of falling off the wall, eg a warning sign. The breach of this duty of care caused the client’s injuries and property damage. However, the client will not be able to claim for their damaged mobile phone.
No, because the factory owner can rely upon the defence of illegality to defeat the claim.
No, because the client was a trespasser and will not be owed a duty of care by the factory owner. While the factory owner was clearly aware of the danger and knew that trespassers could come within the vicinity of the danger, the danger of falling off the wall was an obvious hazard. The factory owner was not, therefore, expected to offer any protection against the risk of falling off the wall.
No, because the factory owner can rely upon the defence of exclusion of liability to defeat the claim.
Feedback
Well done. B is the correct answer as it correctly sets out why the client would be owed a duty of care by the factory owner under the 1984 Act.
A is incorrect because, while it also sets out why the client is owed a duty of care, it does not deal with the fact that property damage is not a loss covered by the 1984 Act.
C is wrong because the defence of illegality does not apply to claims under the 1984 Act.
D is wrong because, while the height of the wall was an obvious danger, the razor wire was not. The client would, therefore, be owed a duty of care.
E is wrong because the most likely interpretation of the 1984 Act is that an occupier’s liability cannot be excluded.
