Occupier's Liability Flashcards
What are the two statutes relating to occupier’s liability and what do they regulate?
The Occupier’s Liability Act 1957: deals with occupier’s duty to VISITORS
The Occupier’s Liability Act 1984: deals with occupier’s liability to people OTHER THAN visitors.
Dangers due to the state of the premises vs. dangers due to activities carried out on the premises
Both acts dealing with occupier’s liability have been interpreted to apply only to the CONDITION of a premises, not to the activities carried out on them.
NOTE: a claimant could still have a negligence claim if they are injured from a dangerous activity.
Who is a “visitor”
Someone whom the occupier has invited or permitted onto the premises, or someone whom the statute deems to have permitted.
What is the duty of care owed to lawful visitors on a premises
An occupier must take reasonable care under the circumstances to see that the visitor will be reasonably safe in using the premises for the permitted reason.
NOTE: This also extends to the visitor’s property.
Who is an “occupier”
The person who has sufficient control over the premises. This is not necessarily the owner.
How to determine “reasonable care” owed to visitors
Magnitude of risk v. practicability of taking precautions.
Also looks at degree of care visitors can be expected to take. For example:
- Children will be more reckless, so more precautions necessary
- People entering the premises to practice their trade are expected to guard against any special risks (e.g., an electrician guarding against the dangers of electrocuting themselves)
How can an occupier discharge the duty of care owed to visitors?
(1) Adequate warnings that allow the visitor to avoid the danger.
- Note that making the visitor aware of the danger is not enough- they need to be kept reasonably safe.
(2) An occupier will not be liable for the faulty work of an independent contractor if:
- The occupier acted reasonably in selecting the IC
- The occupier took reasonable steps to see that the work was done properly (but if it is highly technical, not as much of an issue).
Can an occupier exclude liability to their visitors?
Yes, so long as there was adequate notice given (e.g., it was incorporated into the contract), and it is not excluded by statute:
- Business occupier cannot exclude liability for death or PI, and any other exclusion must be reasonable
- Non-business occupiers do not have the same statutory requirements.
Defenses to an occupier’s breach of duty to visitors
(1) Exclusion of liability
(2) Voluntary assumption of risk
(3) Contributory negligence
Who is a “trespasser”
Someone who enters onto a premises without the permission of the occupier, or someone who enters with permission but then exceeds the extent of such permission.
When is a duty owed to trespassers?
(1) Occupier is or should have been aware of the danger
(2) Occupier knows or should know that trespassers may come into the vicinity of the danger
(3) The danger is one against which it would be reasonable to expect the occupier to protect against.
What duty is owed to trespassers?
Reasonable care to protect against injury.
Note: this does not extend to the trespasser’s property
How can an occupier discharge any duty owed to a trespasser?
- Balance magnitude of risk against reasonable steps that occupier would be expected to take.
- Warnings of the danger or warnings discouraging any trespassers from taking the risk are sufficient.
Defenses to an occupier’s breach of duty to trespassers
Excluding liability is not clear under the act
- Assumption of risk
- Contributory negligence
