Occupier's liability Flashcards
Which act applies?
Vital to work out whether people are lawful visitors or trespassers because different acts apply.
Who is an occupier? - Same for both acts
Under both the 1957 and 1984 Acts, the duties owed are imposed on the ‘occupier’ of the
premises.
Someone who has ‘a sufficient
degree of control over premises’.
Control need not be exclusive.
1957 act - who it applies to
Occupiers have duty to visitors.
Visitors = those persons who have express or implied permission to be on the occupier’s land. Includes persons who enter
under the terms of a contract and persons who enter in order to exercise any right conferred by law.
Premises includes open land, fixed or moveable structures. Also vessels, vehicles or aircraft.
1957 act - duty of care
Common duty of
care = duty is 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.
1957 act - breach of duty
Breach if fail to reach standard of the reasonable occupier.
Factors to consider:
* nature of the danger;
* purpose of visit;
* seriousness of injury risked;
* magnitude of risk;
* cost and practicability of steps required to avoid the danger;
* how long the danger had been on the premises;
* any warning of the danger;
* type of visitor.
1957 act - breach of duty - scope
Death, personal injury and property damage.
1957 act - breach of duty - children
An occupier must be prepared for children to be less careful than adults.
Where the danger is an allurement, an occupier must therefore do even more to safeguard a
child’s safety than where it is not. This has the effect of further increasing the standard of care.
Parental responsibility can reduce or
eliminate the liability of occupiers for the harm suffered to very young children as long as made premises reasonably safe for a child accompanied by a guardian.
1957 act - breach of duty - skilled visitors
Occupier is entitled to expect such a visitor to appreciate and guard against any special
risks which are part of the visitor’s job.
1957 act - breach of duty - escaping breach by warnings
An adequate warning will mean that the occupier has complied with their common duty of
care.
Adequate - question of fact.
Factors to consider:
* nature of warning e.g. how specific it was
* nature of danger e.g. hidden or obvious
* type of visitor e.g. written warning to child might not be enough
1957 act - breach of duty - independent contractors
Occupier can discharge duty of care for work of construction, maintenance or repair, if:
* entrusting the work to an independent contractor; and
* had taken such steps (if any) as they reasonably ought in order to satisfy themselves that
the contractor was competent; and
* had taken such steps (if any) as they reasonably ought in order to satisfy themselves that
the work had been properly done.
1957 act - defences
- Consent (voluntary assumption of risk/volenti non fit injuria)
- Exclusion of liability
- Reasonable steps must have been taken to bring the exclusion notice to the claimant’s
attention before the tort was committed. - The wording of the notice must cover the loss suffered by the claimant.
UCTA controls attempts by business occupiers to exclude or restrict their liability for negligence
to non- consumers.
CRA controls attempts by traders to exclude or restrict liability for negligence.
Nothing applies to private occupiers. - Contributory negligence
Damages will be reduced for contributory
negligence. Partial defence.
1984 act - who it applies to
Owed to people other than visors - trespassers.
Also:
* 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 (the duty
owed to this category of person is limited by the 1984 Act);
* people who exercise private rights of way over land.
Does not apply to person using a public right of way.
1984 act - duty of care - existence
The conditions are that an occupier must:
* be aware of the danger or has reasonable grounds to believe that it exists;
* know or has reasonable grounds to believe that the trespasser is in the vicinity of the danger concerned or that they may come into the vicinity of the danger; and
* be reasonably expected to offer the other some protection against the risk
1984 act - duty of care - scope
Liability due to the state of the premises, not for example an activity.
Duty is owed only in respect of ‘injury’ = anything resulting in death or personal injury’.
Does not cover damage to a trespasser’s property.
1984 act - breach of duty
Duty is reasonable care.
Occupier can discharge duty by adequate warning.
Where the danger is an allurement, an occupier must therefore do even more to safeguard a
child’s safety than where it is not. This has the effect of further increasing the standard of care.
Parental responsibility can reduce or
eliminate the liability of occupiers for the harm suffered to very young children as long as made premises reasonably safe for a child accompanied by a guardian.
