occupier's liability Flashcards
LAWFULVISITORS – OCCUPIERS’LIABILITY ACT1957
The Occupiers’ Liability Act 1957 (‘the 1957 Act’) imposes a duty of care on the occupier of premises to lawful visitors.
Who Is a Visitor?
- A visitor is a person whom the occupier has invited or permitted to be on the premises. Some examples of lawful visitors would be a guest invited to visit a house for dinner, a customer entering a shop, or a spectator purchasing a ticket and entering a sports ground. or whom the law, by statute, deemed as a visitor.
- The occupier may** limit the permission given**. A person who entered the premises as a lawful visitor but then exceeded the scope of that permission would become a trespasser.
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Who Is an Occupier?
- The occupier of premises is the person who has control over the premises. A person can be the occupier of premises with-out being the owner if they have sufcient control. The owner of premises who has not retained control over them will not be an occupier under the Act. The most obvious example is a landlord who
owns premises but lets them to a tenant. - there an be more than one occupier.
- actual physical occupation is not necessary for occupier to have sufficient degree of control.
What Are Premises?
Premises means land, including any buildings on the land. . The 1957 Act also applies to any fixed or moveable structure (for example, temporary scafolding or ladders, ships, trains).
Occupier’s Duty to Lawful Visitors
The Common Duty of Care
The common duty of care is a duty to take such care as is reasonable under the circumstances to see that the visitor will be reasonably safe in using the premises for such purposes as they have been invited or permitted to be there. The occupier’s duty of care also extends to damage to the visitor’s property.
The Standard of Care
- the occupier’s duty is one of reasonable care.The same principles apply as in common law negligence, so the court will have regard to the magnitude of the risk of harm and the practicability of taking precautions, taking into account all of the circumstances.
- **What is reasonable under the circumstances includes the degree of care that visitors themselves can be expected to take. **
discharging the duty
Whether an occupier has discharged their duty by taking reasonable care depends on the court’s evaluation of all the circumstances. The 1957 Act specifcally covers two relevant circumstances:
1.warnings
2.independent contractors
discharging duty-warnings
When damage is caused to a visitor by a danger of which they had been warned, the warning is not to be treated, without more, as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe.
EXAMPLE
A warning of a slippery foor placed at the only exit to prem-ises, which the visitor cannot avoid, may not be suffcient to discharge the occupier’s duty. In contrast, a notice warning of a slippery foor which specifes an alternative route, so enabling the visitor to avoid the danger, may be sufcient.
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discharging duty-independent contractor
- Often an occupier will need to engage an independent contractor to carry out work of construction, maintenance, or repair on the premises. What happens if a lawful visitor suffers damage** caused by the faulty ex-ecution of such work**?
- The 1957 Act provides that the occupier may discharge the duty to take reasonable care by engaging an independent contractor to do the work, provided all of the following conditions are met:
- The occupier acted reasonably in entrusting the work to an independent contractor; and
- The occupier took such steps as they reasonably ought (if any) to be satisfed that (1) the contractor was competent, and (2) the work had been properly done**
General Rule:Occupier would not be liable for negligence of independent contractor which caused harm to the visitors in the premise.
Causation of Damage
The usual rules as for com-
mon law negligence apply.
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Defences
a.Exclusion of Liability
b.VoluntaryAssumption of Risk
c.Contributory Negligence
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Exclusion of Liability
- Statutory Controls
- effective notice
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exclusiong liability-statutory controls
- When the occupier acts in the course of a business, there are statutory controls on the exclusion of liability. The effect of these statutory controls on exclusion of liability varies:
* For death or personal injury, a business occupier cannot exclude liability;
*For any other damage, liability can only be excluded if the exclusion is reasonable (in the case of business
visitors) or fair (in the case of non-business visitors). - When the occupier is not acting in the course of a business, these statutory controls do not apply, so such occupier is free to exclude liability.
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exclusion of liability-effective notice
- When statutory controls do not prevent the exclusion of liability, an occupier may seek to exclude liability to a visitor either by** contract** or by a noncontractual notice.
- It must be clear that the wording of the exclusion covers the damage in question; and
- The exclusion must have been adequately brought to the attention of the claimant.
- Bringing the exclusion to the attention of the claimant requires the following:
Contractual Exclusion
In the case of a contractual exclusion, the term excluding liability must have been incorporated into the contract by being brought to the attention of the visitor** before the contract** was made (for example, telling the visitor to the stately home about the exclusion before the ticket was purchased).
Noncontractual Exclusion
In the case of a noncontractual exclusion notice, adequate steps must be taken to bring it to the attention of the visitor before they encounter the risk for which liability is excluded. - ** It is not necessary to show that the visitor was actually aware of the notice**. It is sufficient that reasonable steps were taken to bring it to the visitor’s
attention
Exam Tip
Remember, even when a notice or term is adequately brought to the claimant’s attention and covers the
damage suffered, its effectiveness is still subject to the statutory controls set out above.
Exam Tip
It is important to distinguish between warnings and exclusions from liability. An occupier relying on a warning is arguing that the duty was fulflled. An occupier relying on an exclusion notice is setting up a defence to the claim.
TRESPASSERS – OCCUPIERS’ LIABILITY ACT 1984
A trespasser is someone who comes onto premises without the permission of the occupier. It also includes someone who enters the premises with permission but then exceeds the extent of such permission.
