occupier's liability Flashcards
What is Occupiers liability concerned with?
‘state of premises’ rather than ‘an activity’ on the premises
What are the 3 main elements of occupiers liability?
1- occupier
2- premises; and
3- visitors
Define occupier within occupiers liability
someone who has a sufficient degree of control over the premises
- matter of fact!
Can there be multiple occupiers?
yes, where multiple parties have significant control over premises
Define premises within occupiers liability.
includes land and buildings, but also fire escapes, mountains, splat walls, bouncy castles and even ladders.
- ..any fixed or moveable structure, including any vessel, vehicle or aircraft.”
Define visitors within occupiers liability.
visitors are persons who have express or implied permission to be on the occupier’s premises.
- includes those with lawful authority and contractual permission
What is express permission for visitors under occupiers liability?
Those who have express permission to be on the premises are lawful visitors, can be limited by:
- area
- time
- purpose
What is implied permission for visitors under occupiers liability?
permission is established by examining an occupier’s behaviour i.e. deliveries
What is contractual permission for visitors under occupiers liability?
those on land to fulfil terms of a contract
What is lawful authority for visitors under occupiers liability?
certain individuals may enter with or without permission but will not legally becoming trespassers.
Will visitors be owed a duty under both OLA acts?
OLA 1957= visitors automatically owed a duty of care
OLA 1984= duty may be owed
What is the standard of care in OLA 1957
standard of care is therefore that of the reasonable occupier and is an objective test (like in negligence).
How is D assessed to have fallen below standard of care
likelihood of harm, magnitude of harm, the social value of the activity which gives rise to the risk and the cost of preventative measures.
- occupier must have failed below the standard of care for there to be breach
what is meant by ‘warnings’ for occupier to discharge their duty?
warning should make the visitor aware of what the danger is, where it is and how to avoid it.
This will be a question of fact in each case.
How do occupiers discharge duty by use of independent contractors & name the 3 possible protections they have?
If contractor’s negligent work causes damage to C, will usually be a right of action against contract.
Occupier can avoid liability if they have:
1- been reasonable in entrusting work of contractor
2- taken reasonable steps to ensure contractor was competent
3- take reasonable steps to supervision and checking work was done properly.
is it possible to exclude liability?
possible to have exclusion clause so long as reasonable steps are taken.
Explain causation and remoteness in relation to OLA 57’.
- breach must have caused C’s damage
- danger myst have been reasonably foreseeable
What are the defences available to occupier’s liability?
- volenti
- contributory negligence
- exclusion clauses
What does OLA 1984 govern?
duty owed by occupiers to non-visitors.
- occupier is only liable for physical injury, including disease and any impairment of either a person’s physical or mental condition
- property damage is not recoverable!!
How is duty of care owed under OLA 1984? (name the 3 conditions)
for duty to be owed by, 3 conditions to be met
1- occupier must be aware of danger / have reasonable grounds to believe it;
2- occupier must know / have reasonable grounds to believe person is in vicinity of danger ; and
3- risk must be against which, in all situations, occupier may reasonably be expected to offer person some protection (objective test)
What is the standard of duty and breach for OLA 1984?
duty is if 3 conditions in card 20 are met, then it’s owed.
breach= standard of care is of a reasonable occupier
How do warnings work in OLA 1984?
duty may be satisfied by giving warning to those on land
- duty under 1984 is more easily discharged.
- a physical barrier is sufficient under 1984 act
Does causation and remoteness differ for OLA 1984 than in OLA 1957?
no, same as OLA 1957
What are the defences to OLA 1984?
- consent
- contributory negligence
- illegality
What are the 4 restrictions on occupier’s freedom to use an exclusion clause to exclude or lessen their liability to visitors?
1- s3 OLA 1957
2- Unfair Contract Terms Act 1977
3- Consumer Rights Act 2015
4- Common law
How is s3 OLA 1957 a restriction on occupiers limiting their liability to visitors using exclusion clauses?
s3 states: occupier cannot, by contract, exclude or restrict the common duty of care which they owe to a third party.
How is UCTA 1977 a restriction on occupiers limiting their liability to visitors using exclusion clauses?
restricts the use of exclusion clauses/notices to exclude or limit liability for negligence
- applies to business to business liabilities
How is CRA 2015 a restriction on occupiers limiting their liability to visitors using exclusion clauses?
restricts the use of exclusion clauses/notices to exclude or limit liability for negligence
- applies where D is acting as a trader (ie for purposes relating to their trade, business, craft or profession) and C, as a consumer (ie for purposes wholly or mainly outside their trade, business, craft or profession).
How does common law restrict occupiers limiting their liability to visitors using exclusion clauses?
If neither UCTA 1977 nor the CRA 2015 applies (eg the defendant is a private occupier), for any type of loss suffered by the claimant, such restrictions could be judged against the principle of ‘common humanity’
