Occupier's Liability Flashcards
OLA 1957 - Lawful Visitors
- Occupier includes tenants and owners, there can be more than one occupier (Wheat v Lacon). Occupier as were in control of the building (Harris v Birkenhead). There can be no occupier (Bailey v Armes).
- Premises defined in S.1(3)(a) as any fixed or moveable structure including vessels, vehicles, and aircrafts.
- Adult Lawful visitors: invitees, licensees, contractual permission, statutory right to enter.
- Owed a common DOC (S.2(2)) to take care as is reasonable to keep the visitor reasonably safe (Laverton v Klapasha takeaway). The risk cannot last indefinitely (Cole v Davis-Gilbert).
- Danger must be from state of premises or from things done or not done on the premises (S.1(1)). Suggests may only claim from loss due to state of premises (Poppleton v Portsmouth Youth Activities). Suggests may be from activity C done on premises (G4S v Manley).
- Children are owed a common DOC but must expect children to be less careful (S.2(3)), must be reasonably safe for a child that age. Knew of danger of the berries and knew they were an allurement (Glasgow Corp v Taylor). Duty may not be owed to young children as should be under care of parent (Phipps v Rochester Corp).
- People carrying out trade or calling are owed a common DOC (S.2(3)). Will not be liable where tradesman fails to guard against risk they should know or be expected to know about (Roles v Nathan).
Independent contractors, visitors injured by work carried out by IC (S.2(4)). O may be able to pass on liability to contractor. 3 conditions must be satisfied:
1. Must be reasonable to have work done by contractor (Haseldine v Daw).
2. Contractor must be competent to do the work (Bottomley v Todmorden CC).
O must check work done properly, if technical no need for expert to check (Woodward v Mayor of Hastings).
OLA 1984 - Trespassers
- Occupiers & Premises same as lawful visitors (S.1(2)).
- O liable for injury due to danger due to state of premises or things done or omitted to be done on them (S.1(1)). Liable for PI only.
- O only has duty if 3 conditions fulfilled (S.1(3)):
1. He is aware of the danger of has reasonable grounds to believe it exists.
2. He knows or has reasonable grounds to believe a non-visitor is in or may enter the vicinity of the danger.
3. The risk is one which in all circumstances D may be reasonably expected to take precautions. - Duty is to take care as is reasonable in the circumstances to see that the T is not injured by the danger (S.1(4)). Circumstances include: greater the risk more precautions to be taken, nature of premises, age of T, practicality of precautions.
- Adult trespassers. O not liable if C injured by an obvious risk (Ratcliffe v McConnell). Time of day and year may be relevant (Donoghue v Folkestone Properties). O does not have to spend lots of money making premises safe from obvious dangers (Tomlinson v Congleton BC). O not liable if has no reason to suspect the presence of a T (Higgs v Foster). O not liable if does not know of danger or had no reason to suspect danger existed (Rhind v Astbury Waterpark).
- Children. Same approach as adults. O not liable as not the state of premises that caused danger but what D doing in them (Keown v Coventry Healthcare). No duty to warn of obvious dangers and danger not due to state of premises (Bladaccino v West Wittering)
OLA 1957 Evaluations
+ Prior to 1957 act, law was harsh and complex as there were different standards of care to different types of LV, so only fair for some LV. Act creates common DOC to all LV, so greater fairness to all.
+ All C’s can claim for PI/damage to property, so fair, even if they’re not an LV.
- Is it too easy for O to escape liability by using warning notices? Denies justice to C if they can’t claim successfully. Opposing view is making law too onerous means O wouldn’t open premises to public.
+ Higher standard for children. Expected to be less careful. Allurements give children more rights as it turns child Ts into LV. But not always easy for adult O to spot allurements. But very young children expected to be in care of adult, so good balance between rights of O and LV.
+ Wide definitions of O and premises, e.g. lifts and ladders can be premises, allowing more successful claims and fair on LV. O not defined in act but widely defined by cases to be person(s) in control. Can be more than one O, so easier to bring successful claims.
+ Justice for O as they only have to do what is reasonable to keep visitors reasonably safe, don’t have to go to extraordinary lengths.
REFORMS:
- state compensation schemes run by a levy on property insurance premiums, which are unpopular as premiums would rise.
- introduce no fault liability for everyone injured on premises (unpopular).
- judges recently started to impose personal responsibility on those injured through the obvious danger concept. Those injured by this unsuccessful (Edwards v Sutton LBC). But remember if they fail to get compensation and can’t work they will be forced to depend on welfare benefits.
OLA 1984 Evaluations
+ Herrington v BRB introduced a duty of common humanity for child Ts. It was felt the previous law protected property above people, and there was a moral obligation on businesses to protect people and should be insured to cover claims.
+ Generally harder to establish claim as a T, and can only claim for PI and not damage to property, so T has less rights than LV. This is fair.
- T has to establish DOC is owed using test in S.1(3). 2-part test has subjective element which is harder to pass than objective test most torts have. Harder to establish DOC.
- Less public support for claims by T, e.g. in Reville v Newbury, 82 yr old responsible when C was injured burgling his shed, receiving public outcry. Goes against idea that criminal shouldn’t profit off their crime. Now judges introduce ‘obvious dangers’ to deny claim, If this goes against parliament’s will, it’s undemocratic, but gives some protection to D.
- Wide definition of O and premises. For T, anyone without permission to be there. Day to day supervision required unfair burden on O. Increases insurance premiums that have to be passed on to customers if O is a business. Encourages compensation culture.
REFORMS: same as OLA 1957.
