Occupier's Liability Flashcards
What is the difference between Occupier’s Liability Act 1957 and 1984?
1957 - governs duty owed by occupiers to visitors
1984 - governs duty owed to non-visitors (e.g. trespassers)
What can a visitor claim for under OLA 1957?
Personal injury and property damage
What duty does an occupier owe under OLA 1957?
A duty of care to take such care as is reasonable in all the circumstances to see that a visitor will be reasonably safe in using the premises for the purposes for which they were permitted by the occupier to be there.
What three things do you need to consider to judge whether a duty of care is owed under OLA 1957?
Occupier, premises and visitor.
What defines ‘occupier’?
Someone who has a sufficient degree of control over the premises
What are the four categories of occupiers?
Landlord not living on property - tenant is occupier
Landlord retains bits of the premises e.g. stairways - they are the occupier of those parts
Landlord issues a licence - they remain an occupier
Occupier employs an independent contractor - remain responsible
Can there be multiple occupiers?
Yes - and they can have responsibility for different parts or different dangers.
Claimant can be a visitor to one occupier and a trespasser to another.
Define ‘premises’
“Any fixed or moveable structure, including any vessel, vehicle or aircraft”.
Who is a visitor?
Anyone who has express or implied permission to be on the occupier’s premises.
How can express permission be limited?
Area (often shown by signs)
Time - must be clear
Purpose
What areas are not covered by either OLA 57 or 84?
Public rights of way
How is a private right of way + National Parks & Access to Countryside act considered?
Covered by OLA 1984
What standard of care does the occupier owe under OLA 57?
That of the reasonable occupier - objective test.
How should occupier treat a visitor’s personal characteristics?
If aware of the vulnerability of a visitor, they should guard against this e.g. blindness.
When is the standard of care of an occupier under OLA 57 raised or lowered?
Standard is raised if a child visitor, lowered if someone is entering a premises to exercise their skills.
Occupier is entitled to assume that a child will be subject to parental care.
How do you judge whether the D has fallen below the standard of care? OLA 1957
Likelihood of harm, magnitude of harm, practicality of precautions, social value of activity.
Court will consider the resources available to the occupier.
How can an occupier satisfy the common duty of care?
Warnings - if it was enough to enable the visitor to be reasonably safe.
What danger is, where it is, how to avoid it.
if very obvious, warning maybe not needed.
Can also function as an exclusion notice.
When can an occupier discharge duty via an independent contractor?
1) Must have been reasonable to use an independent contractor - more technical = more reasonable.
2) Contractor selected via checking qualifications, experience, references, etc.
3) work supervised and checked reasonably.
Which defences can a defendant rely upon in an OLA claim? Both 57 and 84
Consent
CN - if a child, judged against a reasonable child of that age.
Illegality
Which losses are recoverable under OLA 1984?
Only physical injury - property damage is NOT recoverable.
How is trespasser defined under OLA 1984?
He who goes onto the land without invitation of any sort and whose presence is either known to the proprietor, or if known, is practically objected to.
What is the test determining whether a duty of care is owed to a trespasser under OLA 1984?
Occupier is:
Aware of duty / reasonably believes that it exists [actual knowledge of facts]
They know / have reasonable grounds to believe that the other is in the vicinity of the danger / may be in it [at the time of the accident]
The risk is one against which, in all the circumstances, they may reasonably be expected to offer the other some protection. [similar analysis to that under breach - was it reasonable to balance against risk?]
What is the standard of care under OLA 1984?
That of the reasonable occupier
How do courts consider if the standard of care has been breached in OLA 1984?
Courts will consider the negligence breach factors, and also:
- Nature of danger
- Child v adult
- Nature of premises
- Purpose of claimant
- Could trespass be foreseen?
Can warnings discharge duty under OLA 1984?
Yes - less onerous than under 1957. Just needs to take reasonable steps to bring danger to claimant’s attention
fence could be sufficient
What are the four restrictions on an occupier’s freedom to use an exclusion clause?
S3 OLA 1957
UCTA 1977
CRA 2015
Common law
What does S3 OLA say?
An occupier can’t exclude or restrict the common duty of care which they owe to a third party. Protects employees to contracts.
What does UCTA 1977 restrict?
B 2 B liability
Someone can’t exclude / restrict their liability for death / personal injury.
You can exclude liability for negligence if it is reasonable: fair and reasonable to allow reliance on the notice, regarding all the circumstances.
What does CRA 2015 restrict?
B 2 consumer liability
Cannot exclude liability for death / personal liability
Can exclude liability for other losses, if the notice is fair.
Term is unfair if it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.
What does the common law restrict?
Any exclusions against ‘ the common humanity ‘.
What does OLA 1984 say about exclusion or limitation clauses?
Nothing - common law restriction applies, UCTA and CRA do not.
