Occupier's Liability Flashcards
What 4 factors must be established in order for the claimant to fall within the 1957 Act?
- Establish they have suffered loss due to the state of the premises
- Identify the occupier
- Prove they are a visitor
- Establish that the occupier failed to take reasonable care for the visitor’s safety
What constituted an occupier?
Someone with a sufficient degree of control over premises
Control need not be exclusive
What constitutes a visitor?
Persons who have express or implied permission to be on the occupier’s land
What is the common duty of care owed by an occupier to visitors under the 1957 Act?
A duty 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
What factors will a court consider in establishing whether an occupier has reached the standard of a reasonably occupier?
Nature of danger
Purpose of visit
Seriousness of injury risked
Magnitude of risk
Cost / practicability to avoid danger
Length of time danger was on premises
Any warning of danger
Type of visitor
How does the reasonable standard differ in relation to child visitors?
Require a higher degree of care
Where the danger constitutes an “allurement” then occupier must do even more to safeguard
How does the reasonable standard differ in relation to skilled visitors?
Lower standard of care is expected
What will the court consider in established whether a warning was adequate, and therefore complying with common duty of care?
- How specific the warning is
- Nature of the danger
- Type of visitor
Are warning notices possible to use in a defence?
No - only relevant to exclusion of the duty
When has an occupier discharged their common duty of care in relation to independent contractors (and instead making them liable)?
When they have acted reasonably in entrusting the work to an independent contractor
Have taken steps to satisfy themselves of independent contractor’s competence
Have taken steps to satisfy themselves that work had been done properly
What defences are available to occupier’s liability?
Consent - claimant must have known precise risk that causes the injury and show by their conduct they willingly accepted the legal risk
Exclusion of liability - exclusion clause / notice to escape liability
Can private occupiers exclude liability for death / PI?
Yes, as they are not subject to UCTA or CRA
Can business occupiers exclude liability for death / PI?
No, as they are subject to UCTA or CRA
Who is the duty under the 1984 Act owed to?
Trespassers
People entering under an access agreement or order under the National Parks and Access to the Countryside Act 1949
People who enter land pursuant to the Countryside and Rights of Way Act 2000
People who exercise private rights of way over land
What would create a duty for an occupier under the 1984 Act?
They are aware of the danger / have reasonable grounds to believe that it exists
They know or have reasonable grounds to believe that the trespasser is in the vicinity of the danger concerned or that they may have come into the vicinity of the danger, and
They must be reasonably expected to offer the other some protection against the risk
