Occupier's Liability Flashcards
Who is an occupier for purposes of occupier’s liability?
Anyone who exerts control of the premises, temporarily or permanently (includes builders, tenants, landlords)
When does a landlord owe a duty of care in relation to defective premises?
Owed to anyone who may be affected by a defect, whenever the landlord knew of (or ought to have knew about) the defect
What is the occupier’s duty in relation to trespassers?
Ensure the trespasser does not get injured
When does the occupier’s duty in relation to trespassers arise?
When the occupier knows of (or ought to know of) the danger + the fact that it is likely a trespasser will come on the danger, and in all the circumstances it is reasonable for the occupier to act against the danger
How can an occupier discharge their duty in relation to trespassers?
By taking reasonable steps to alert the trespasser to the danger (or discourage them from it)
What is the occupier’s duty in relation to lawful visitors?
To ensure the visitor and their property is reasonably safe - they should be prepared for children to be less careful than adults, and for those who are exercising special skills to their trade to be able to guard against any risks that may arise in the course of their trade
How can an occupier discharge their duty in relation to lawful visitors?
Only where the warning is sufficient in ensuring the visitor would be safe
Will using an independent contractor discharge an occupier’s duty?
Yes, but only if the occupier was diligent in choosing the contractor, and took reasonable steps to ensure the contractor was competent and the work was carried out properly
Can an occupier’s liability to lawful visitors be excluded or limited?
In personal cases - yes
In commercial contexts - never for death or personal injury, and all other exclusions or limitations must be fair or reasonable and where it was contained within the contract, or where the occupier had taken reasonable steps to flag to the visitor in a notice
