Occupier's liability

Question 1

What test is used for exclusion of liability in the Consumer Rights Act 2015?

Answer 1

Fairness Test:
It must be fair and reasonable to allow reliance on the exclusion notice having regard to all circumstances.
There must be good faith focusing on the imbalance between parties.

Question 2

What does the Occupier Liability Act cover for trespassers?

Answer 2

Death and personal injury. Not property damage

Question 3

What can/ cannot be excluded in exclusion noticed/ limited liability notice?

Answer 3

Death and personal injury cannot be excluded but other damage can subject to the reasonableness test under UCTA and fairness test under CRA.

Question 4

What is required for occupier’s to discharge their duty of care to independent contractors?

Answer 4

1. entrusting the work to an independent contractor; and
2. reasonable steps have been taken in order to satisfy themselves that the contractor was competent
3. reasonable steps have been taken in order to satisfy themselves the work has been properly done (checked over)

If the contractor has exclusive access to the area they will be exclusively liable

Question 5

When is an exclusion notice valid to exclude occupier’s liability?

Answer 5

Reasonable steps must have been taken to bring the exclusion notice to the claimant’s attention.
The wording must cover the loss suffered.

Also subject to the reasonableness test under UCTA and the fairness test under CRA.
Private occupier’s are exempt from this test^

Question 6

What is necessary for a duty of care to be owed from an occupier to a trespasser?

Answer 6

The occupier must:
1. be aware of the danger, have reasonable grounds to believe it exists

2. know/ has reasonable grounds to believe that the trespasser is in the vicinity/ may come to be.
3. be reasonably expected to offer some protection against the risk

Question 7

When can occupier’s rely on the defence of consent?

Answer 7

The claimant must be fully aware of the risk posed, not part can be hidden