occupier's liability

Question 1

what does a claimant need to do to prove occupier’s liability to a visitor?

Answer 1

establish they have suffered loss due to state of premises, identify the occupier, prove they are a visitor, establish that the occupier failed to take reasonable care for the visitor’s safety

Question 2

how can an occupier be classified?

Answer 2

Wheat v E Lacon- someone who has ‘a sufficient degree of control over the premises’- someone who is not the owner can still be an occupier

Question 3

can there be more than one occupier?

Answer 3

yes- independent contractors can be occupiers along with with owners of the property etc

Question 4

who is a visitor?

Answer 4

those who have express or implied permission to be on the occupier’s land- this includes persons who enter under the terms of a contract and persons who enter in order to exercise any right conferred by law

Question 5

what are premises?

Answer 5

includes open land as well as foxed or moveable structures and includes vessels, vehicles or aircraft

Question 6

what is the common duty of care for occupiers?

Answer 6

duty is same for all visitors- to take such care as is reasonable in all the circumstances to see that the visitor is reasonably safe in using the premises for the purpose for which they are permitted to be there

Question 7

what will the court take into account when determining breach?

Answer 7

nature of danger, purpose of visit, seriousness of injury risked, cost and practicability of steps required to avoid the danger, how long the danger had been on the premises, warning of danger, type of visitor

Question 8

how are children visitors different?

Answer 8

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

Question 9

what specific considerations must be taken into account when the visitor is a child?

Answer 9

Glasgow Corp v Taylor- occupier should take extra precautions to safeguard children to further increase the standard of care

Phipps v Rochester- occupiers will have complied with their duty to a very young child visitor if they make their premises reasonably safe for a child who is accompanied by the sort of guardian by whom the occupier is entitled to expect the child to be accompanied

Question 10

who are skilled visitors?

Answer 10

occupier entitled to expect such a visitor to appreciate and guard against any special risks which are part of the visitor’s job

Question 11

how can someone escape breach by giving warnings?

Answer 11

an adequate warning will mean that the occupier has complied with their common duty of care so wont be in breach but this warning must be adequate- was the warning sufficient to enable the visitor to be reasonably safe?

Question 12

what is considered by the court to determine f a warning is adequate?

Answer 12

nature of the warning i.e how specific it was, nature of the danger i.e. was it a hidden or obvious danger, the type of visitor e.g. adult or child

Question 13

what does an occupier not have to warn about?

Answer 13

obvious dangers to particular visitors but is necessary to distinguish between a warning notice and a notice which purports to restrict or exclude an occupier’s liability

Question 14

what is the difference between warning notice and exclusion notice?

Answer 14

if a warning notice, they are complying with common duty to warn of dangers so there is no breach of duty, exclusion can act as a defence to a claim once they are in breach

Question 15

wha are the 3 requirements must be satisfied for an occupier to discharge their duty of care to independent contractors?

Answer 15

entrusting the work to an independent contractor, had taken such steps as they reasonably ought in order to satisfy themselves that the contractor was competent and had taken such steps as they reasonably ought in order to satisfy themselves that the work had been properly done

Question 16

what types of work can be done by an IC with the ability to discharge duty of care by the occupier?

Answer 16

construction, maintenance or repair- rare that court will think the occupier has acted unreasonably in employing an IC- the more technical the work, the more reasonable to have an IC come in

Question 17

do the issues of remoteness and causation apply?

Answer 17

yes

Question 18

what are the defences available to the occupier?

Answer 18

volenti- wording must be specific enough to enable the occupier to rely on it- need to make visitors aware of the precise nature of any risk before they encounter it

exclusion of liability- by adequate warning of the relevant danger on their premises- suitation under consideration here is the case of an occupier who had not discharged the duty and is relying on an exclusion clause/notice

contributory negligence

Question 19

what are the requirements for an occupier to exclude their liability?

Answer 19

reasonable steps must have been taken to bring the exclusion notice to Cs attention before the tort was committed, the words must cover the loss suffered by the C- and is also limited by UCTA and CRA

Question 20

how does UCTA limit the defence of exclusion of liability?

Answer 20

business occupiers cannot exclude their liability for a non-consumer visitors death or injury but can exclude liability for damage to a visitors property if it was fair and reasonable to allow them to

Question 21

how does CRA limit the defence of exclusion of liability?

Answer 21

business occupiers cannot exclude liability for a consumer visitors death or personal injury but can exclude for damage o a consumer visitors property if they can satisfy the fairness test under the CRA

Question 22

what is a trespasser?

Answer 22

Robert Addie v Dumbreck- one who goes upon land without invitation by any sort and whose presence is either unknown to the proprietor or is practically objected to

Question 23

what determines i fa person is a trespasser rather than a visitor?

Answer 23

there is no express or implied permission to be on the premises- doesn’t matter whether they think they have permission

Question 24

what other types of entrants does the occupiers liability act cover?

Answer 24

people entering under an access agreement or order under the National Parks and Access to the Countryside Act, people who enter land pursuant to the Countryside and Rights of Way Act, people who exercise private rights of way over land

Question 25

what type of entrant is not covered under the Occupiers liability act?

Answer 25

a person using public right of high is excluded from protection under the act- they aren’t within the definition of a visitor for the purposes of the act so are out of the Statutory framework of occupier’s liability altogether (but there is the Highway Act)

Question 26

what conditions must be satisfied for the duty to be owed by an occupier to a trespasser?

Answer 26

occupier must: be aware of teh damager or has reasonable grounds to believe that it exists, knows or has reasonable grounds to believe that the trespasser is in the vicinity of teh danger concerned or that they may come to the vicinity of the danger, and may reasonably be expected to offer the other some protection against the risk

Question 27

what will the court look at to consider whether it is reasonable the expect the occupier to have offered the trespasser some protection?

Answer 27

nature and extent of the risk- what the danger is, it is obvious or hidden? the more serious the risk, the more likely it will be that the court will consider some protection ‘reasonable’

type of trespasser- are they adults or children? are they deliberate or inadvertent?

the cost and practicability of precautions- if cost is low this would be more ‘reasonable’

Question 28

what are the two limits of duty under occupiers liability act?

Answer 28

whether injury is by activity rather than state of premises as occupiers liability doesn’t account for activity

duty is only owed in respect of injury which is described as ‘anything resulting in death or personal injury’ so doesn’t cover damage to trespassers property

Question 29

what factors will the court consider in determining what constitutes ‘reasonable care’ i.e. whether there has been a breach

Answer 29

nature of the danger, age of trespasser, nature of premises, extent of risk, cost and practicability of precautions, nature and character of the entry, gravity and likelihood or injury, foreseeability of the trespasser

Question 30

what are the defences for an occupier?

Answer 30

volenti, exclusion of liability, contributory negligence, illegality