Occupier's Liability Flashcards
1
Q
Definition under the Occupiers Liability Act 1957 =
A
- The occupier of the premises owes a duty of care to keep lawful visitors safe whilst on their premises
2
Q
Act 1957 = What is an occupier? What are key cases for an occupier?
A
- Under common law, an occupier is one who has a degree of control over the premises
- This does not need to be the owner but someone with control, there can be more than one occupier at the same time. This can be a tenant or indepdent contractor
- (Wheat v E Lacon and Co) and (Harris v Birkenhead Corporation)
3
Q
Act 1957 = What are four categories of an occupier?
A
- Established in Wheat v E Lacon and Co
1. A tenant letting a premises = Occupier
2. A landlord lets certain areas of a builiding but retains certain areas = The occupier of certain areas
3. If an owner allows a person to use the premises but reserves right of entry = The owner remains occupier
4. A contractor is employed to carry out work, they could become the occupier to be held responsbile
4
Q
Act 1957 = What is premises?
A
- The term includes land, buildings, fixed or moveable structures such as vehichles
5
Q
Act 1957 = What is a visitor?
A
- A visitor is lawful and has been granted permission to enter the premises
- Permission can be withdrawn but they must be given a reasonable amount of time to leave the premises before they become a trespasser
6
Q
Act 1957 = What is express or implied permission? What is a key case of permission?
A
Express Permission = They have actively gained permission to be in the premises
Implied Permission = Permission can be implied in a number of situations, the courts can decide whether the visitors have implied permission to be there
- This can be seen in (Lowery v Walker)
7
Q
Act 1957 = What is the common duty of care? What are key cases of this?
A
- An occupier of the premises owes a common duty of care to vistors on the premises
- The duty to such care that is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes that they were invited or permitted to be there for
- As established in (The Calgarth), when you invite a person into your house to use the stairs, you do not invite him to slide down the banisters. This means that if the visitor does something that they are not invited to do, the occupier owes no duty of care under the 1957 Act
- (Laverton v Kiapasha Takeaway Supreme), (Dean and Chapter of Rochester Cathedral v Debell) and (Cole v David-Gilbert, The Royal British Legion)
8
Q
Act 1957 = What is the duty to children? What are key cases to establish this?
A
- The occupier must be prepared for chuldren to be less careful than adults meaning the premises must be reasonably safe for a child
- The standard of care is measured subjectively based on the age of the child
- The occupier must guard against allurement or attraction which places the child at risk
- This is seen in (Glasgow Corporation v Taylor), (Phipps v Rochester Corporation) and Jolley v London Borough of Sutton
9
Q
Act 1957 = What is the duty owed by the occupier to those exercising a calling? What is a key case of this?
A
- An occupier may expect that a person, in the exercise of his calling, will appriecate and guard against any special risks as the occupier leaves him free to do so
- Those carrying out a trade are expected to take measured to avoid risks associated with the trade
- This is seen in (Roles v Nathan)
10
Q
Act 1957 = What is the duty of independent contractors?
A
- The occupier could avoid liability suffered by his visitors if the cause of damages is due to the negligence of an independent contractor
- The occupier is not liable for damage caused to a danger due to the faulty execution of any work or construction, maintenance or repair by an independent contract employed by the occupier
11
Q
Act 1957 = What are the three requirements for the occupier to avoid liability for an independent contractor? What are key cases of these?
A
- It must have been reasonable for the occupier to have entrusted the work to an independent contractor as it may be specialist activity. This is seen in (Hazeldine v Daw and Son)
- The contractor must be competetent to carry out the task. This is seen in (Bottomley v Todmorden Cricket Club)
- The occupier must inspect the work if this is possible. This is seen in (Woodward v Major Hastings)
12
Q
Act 1957 = What are defences which will remove liability?
A
- Warnings
- Exclusion Clauses
- Contributary Negligence
- Consent
13
Q
Act 1957 = How does warnings remove liability?
A
- Where damage is caused to a visitor by a danger which they had been warned by the occupier, the warning does not remove liability unless the visitor would be reasonably safe. This means that if the visitor is reasonably safe after recieving the warning, they are not liable
- An occupier does not have to warn against obvious dangers but the warning must be sufficient
- (Rae v Mars UK Ltd) and (Staples v West Dorset District Council)
14
Q
Act 1957 = What are exclusion clauses?
A
- An occupier is able to resrict or modify their duty by agreement or otherwise
- An occupier can reduce their liability by placing clauses in their warning notices
- However, if this is on business premises, these clauses are ineffective
15
Q
Act 1957 = What is contributary negligence?
A
- This is a partial defence and can reduce the risk of damages paid. It can be shown that the claimant has contributed to their own harm or injury
16
Q
Act 1957 = What is consent?
A
- This is a complete defence and the claimant may not be liable for the harm or injury
17
Q
Act 1957 = What are remedies for any damages?
A
- If there is a liability, the remedy will be to claim damages for any personal injury or property damage
18
Q
Act 1984 = What is the definition under the Occupiers Liability Act 1984?
A
- An occupier owes a common duty of care to lawful visitors. A trespasser is not a lawful visitor so the occupier must have a duty of common humanity towards trespassers. This was seen in (British Railway Board v Herrington)
19
Q
Act 1984 = What was too harsh? Which case established this?
A
- Addie v Dumbreck was seen as a harsh approach
- No duty was owed to trspassers to ensure that they were safe on the premises but the duty was to not inflict harm wilfully
20
Q
Act 1984 = What was established in the law commission report?
A
- The Law commision investigated the ‘Report on liability for damage or injury to a trspasser and the occupiers liability’
- As a result, the Occupier Liability Act 1984 was passed and the duty of common humanity was replaced by a statutory duty
21
Q
Act 1984 = What is a trespasser?
A
- A trespasser is someone who enters land or premises without permission, their presence must be unknown by the occupier or objected to
- A person can enter the premises as a visitor and then become a trespasser
22
Q
Act 1984 = What is the duty to trespassers?
A
- S1(1) of the OLA 1984 = The claim must arise out the state of the premises and not the dangerous actions of the claimant.
- S1(3) of the OLA 1984 = An occupier of the premises owes a duty to a trespasser if:
- They are aware of the danger of has reasonable grounds to believe there is a danger
- They have reasonable grounds to believe that the other is in the vicinity of the danger or may encounter the danger
- The risk is one that they may be reasonably expected to offer some protection - S1(4) of the OLA 1984 = To take such care as is reasonable in all circumstances of the case to see that the tresoasser dies nit suffer injury on the premises by reason of the danger concerned
23
Q
Act 1984 = How is the danger measured that should be protected from?
A
- The court will consider the likelihood of harm, the potential seriousness of any harm and how practical it was to take precautions against harm occuring
24
Q
Act 1984 = What is covered under this act?
A
- Damage to property is not covered, the occupier will onl be liable for personal injury only
- This act gives a right to claim compensation to trespassers when they have been injured while trespassing
25
Act 1984 = What is restrictions to trespassers claiming for injuries while trespassing?
1. Whether it was an obvious danger
2. What time of year and day it is, meaning they would not expect a trespasser
3. They do not have to make an unnecessary cost of precautions
4. If they had no reason to suspect a trespasser
5. If they were unaware of the danger
6. If the trespasser knew it was dangerous
26
Act 1984 = What are defences to remove the duty?
1. Warnings
2. Consent
3. Contributory Negligence
27
Act 1984 = How do warnings discharge a duty?
- Under S1(5) of the OLA 1984, taking such steps as are reasonable in all circumstances of the case to give warning of the danger concerned to discourage people from taking the risk
- This means that a warning sign may be sufficient but only if it is clear to the trespasser of the obvious risk
28
Act 1984 = How does consent remove liability?
- S1(6) of the OLA 1984 = Volenti non fit injuria
- No duty is owed to any person in respect of the risks willingly accepted by that person
- An occupier will not be liable for injury sustained by a trespasser if they have willingly accepted the risk of it occuring
29
Act 1984 = How does contributory negligence affect liability
- It is clear that judges accept the defence even though there is no mention
30
Act 1984 = What are remedies?
- Claimants can claim damages for death and personal injury but not for a loss to property
