Occupier's Liability

Question 1

Which act applies?

Answer 1

Vital to work out whether people are lawful visitors or trespassers because different acts apply

Question 2

Who is an occupier? - Same definition for both acts

Answer 2

Occupier = person who exercises an element/sufficient degree of control over premises. Don’t have to be the owner of the premises. An independent contract could be an occupier whilst working on another person’s premises. Can be more than one occupier.

Question 3

1975 act - who it applies to - key point

Answer 3

Applies to lawful visitors - someone who has the right to be in that location and/or is undertaking activities that the occupier has agreed to. They have express or implied permission to be on the premises. Includes people who enter under the terms of a contract and people who enter in order to exercise any right conferred by law.

Question 4

1975 act - who it applies to - Express permission

Answer 4

Where was the visitor entitled to go? What was the visitor entitled to do? When was the visitor required to leave? ‘When you invite a person into your house to use the staircase you do not invite him to slide down the banisters’

Question 5

1975 act - who it applies to - Implied permission

Answer 5

Those who have not been prohibited from entering the premises but have not been explicitly invited and who are assumed not to br objectionable to the occupier. If an occupier knows that his land is used by trespassers but does nothing to prevent them from entering his land this may amount to implied permission to enter. The circumstances has to be such that the visitor thinks that the occupier is aware of his presence and does not object to it

Question 6

1975 act - who it applies to - Those with a right to enter

Answer 6

Law gives rights of entry to certain categories of people e.g policemen, which render them within the definition of lawful visitor irrespective of the wishes of the occupier of the land.

Question 7

1975 act - Duty of care

Answer 7

To take such care as is reasonable in all the circumstances 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. Duty to ensure visitor is not injured and extends to damage to a visitor’s property.

Question 8

1975 act - Breach of duty

Answer 8

Take such care as is reasonable - standard of care expected is the same as that in an ordinary claim in negligence. Must reach the standard of a reasonable occupier. Court will consider all circumstances such as: type/nature of danger, purpose of visit, seriousness of injury risked, magnitude of risk, cost and practicability of steps required to avoid danger, how long the danger had been on the premises.

Question 9

1975 Act - Breach of duty - Any warning of the danger

Answer 9

An adequate warning will mean an occupier has not breached duty. The warning must be ADEQUATE. Must be SUFFICIENT to enable the visitor to be REASONABLY SAFE. Must be sufficiently precise. What sort of visitor is the warning targeted - something more than a sign may be needed to guard against risks that are linked to children. If the danger is hidden then the warning will need to be more specific.

Question 10

1975 act - Breach of duty - Type of visitor - Child Visitors

Answer 10

Child visitors - require a higher degree of care from the occupier. They cannot be expected to appreciate dangers which would be obvious to an adult.

Question 11

1975 act - Breach of duty - Type of visitor - Skilled visitors

Answer 11

An occupier can reasonably expect them to appreciate and guard against any risks which are part and parcel of the job. Has the effect of lowering standard of care expected of the occupier in relation to such visitors. They are not owed a duty in relation to the sorts of risk of which they would be aware by virtue of their expertise it does not follow that they are not owed a duty in relation to any risk

Question 12

1975 act - Breach of duty - Independent contractor

Answer 12

The occupier will have discharged his common duty of care in relation to injury caused by faulty workmanship of independent contractors if:
1) The occupier must have taken reasonable care to check that the contractor’s work was done properly
2) It must be reasonable for the occupier to engage the contractor to do the task and that the occupier must take steps to satisfy himself that the contractor chosen is competent

Question 13

1975 Act - Causation and remoteness of damage

Answer 13

House of Lord confirmed that the test here is the same as for common negligence

Question 14

1975 Act - Defences - Volenti

Answer 14

Preserves common law defence - will apply same principles. Claimant must therefore know of the precise risk that causes the injury and show by his conduct that he willingly accepts the legal risk

Question 15

1975 Act - Defences - Contributory Negligence

Answer 15

Same as for common law

Question 16

1975 Act - Defences - Exclusion of Liability

Answer 16

A clearly worded notice that covers liability in question will be valid if reasonable steps have been taken to bring it to the visitor’s attention. Business occupiers are not allowed to exclude liability for personal injury or death of non-consumers - notice will be void. A business occupier can exclude liability for other loss, provided it satisfies reasonableness test. A trader cannot exclude liability for personal injury or death of consumers. They can exclude liability for damage to property if they can satisfy fairness test in CRA. Private occupiers are not subject to the control of UCTA or CRA. Ordinary householders can therefore display a prominent notice excluding liability to visitors.

Question 17

1984 Act - Who it applies to

Answer 17

Trespassers - someone who goes upon land without invitation of any sort and whose presence is either unknown to the proprietor or if known is practically objected to. Does not matter that the entrant is unaware that he is trespassing. A person can initially enter premises as a visitor but then can become a trespasser either by going onto a part of premises to where their permission does not extend or by doing something outside the scope of his permission.

Question 18

1984 Act - Duty of care - 3 Conditions

Answer 18

Duty does not arise automatically must satisfy 3 conditions:
1) He is aware of the danger or has reasonable grounds to believe that it exists - requires actual knowledge
2) He knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger
3) The risk is one against which in all the circumstances of the case he may reasonably be expected to offer the other some protection

Question 19

1984 Act - Duty of care - Factors court must consider in relation to conditions

Answer 19

1) Nature and extent of the risk - is the danger obvious or hidden - the more serious the risk the more likely it will be that the court will consider protection reasonable
2) Type of trespasser

Question 20

1984 Act - Duty of care - Key point

Answer 20

Duty is owed only in respect of injury - does not cover damage to property

Question 21

1984 Act - Breach of duty

Answer 21

Occupier will not be liable unless they have fallen below the standard of the reasonable occupier. Warnings can discharge common duty owed. Warnings will often be inadequate for children. If a warning is not adequate to protect a trespasser from danger an occupier should put an obstacle round the danger to prevent the trespasser coming into physical contact with the danger

Question 22

1984 Act - Causation and remoteness of damage

Answer 22

Causation, intervening acts, remoteness. These issues are determined in the same way as for common law negligence

Question 23

1984 Act - Defences - Volenti

Answer 23

Can be used. Ratcliff - claim failed because the defendants were able to establish that the claimant was aware of the risk of diving into partly drained swimming pool with very shallow water and willingly accepted it

Question 24

1984 Act - Defences - Illegality

Answer 24

If a trespasser is injured in his attempt to commit a serious crime and the occupier is found to have breached a duty owed they will not be liable for this breach

Question 25

1984 Act - Defences - Contributory Negligence

Answer 25

Usual rules apply

Question 26

1984 Act - Defences - Exclusion of liability

Answer 26

Act is silent as to whether or not liability can be excluded. This could be interpreted to mean that the occupier cannot. Parliament intended the 1984 act to be a safety net form of protection for trespassers. Such an intention would be thwarted if occupiers could evade the obligations of the act by a carefully worded notice.