Occupier's Liability

Question 1

What losses can visitors claim for?

Answer 1

s. 1 (3)(b) personal injury OR property damage (OLA 1957).

Question 2

Where is premises defined in OLA 1957?

Answer 2

s. 1(3)(a)

Wheeler v Copas: ladder

Furmedge v Chester-le-Street: inflatable art installation.

Question 3

Where is visitor defined in OLA 1957?

Answer 3

s. 1(2) - the same as the definition under common law.

Question 4

What are the different types of permission?

Answer 4

Express

Implied

Contractual

Lawful Authority

Doctrine of Allurement

Question 5

How can express permission be modified?

Answer 5

By area: become a trespasser if you enter another area of the property.

Time

Purpose

Question 6

Cases on express permission being restricted by area?

Answer 6

The Calgarth

Geary v JD Weatherspoon (bannister sliding –> volenti succeeded).

Pearson v Coleman (Lion Danger sign at zoo did not suffice to make 7-Y-old a trespasser at zoo.)

Darby v National Trust (No swimming sign not next to the lake so claimant not a trespasser).

Question 7

Case on restriction by time?

Answer 7

Stone v Taffe

Pub lock-in
Must make it clear to claimant he is a trespasser

Question 8

Cases on restriction by purpose?

Answer 8

R v Smith & Jones

Tomlinson v Congleton (swam in a lake meant for windsurfing).

Harvey v Plymouth (tripped while running away from not paying for a taxi)

Question 9

Implied permission cases?

Answer 9

Lowery v Walker: occupier’s land used for 30+ years as a shortcut.

Edwards v Railway Executive: No implied permission as despite land being used a short cut, fence installed and repaired whenever broken.

BRB v Herrington: railway board knew of live wire and children playing on the railway line.

Question 10

Contractual permission cases?

Answer 10

s. 5(1) OLA 1957

Maguire v Sefton MBC

Question 11

Lawful Authority section and cases?

Answer 11

s. 2(6) OLA 1957

Snook v Mannion (police with a warrant)

Gas Board officials

Ogwo v Taylor (firemen attending fire)

Question 12

What is the doctrine of allurement?

Answer 12

Prior to the enactment of OLA 1984 if the occupier had something on their land attractive to children and was aware of this the trespasser child would be elevated to the status of a licensee.

Question 13

Doctrine of allurement cases?

Answer 13

Glasgow corporation v Taylor (7-y-old died eating berries on defendant’s land).

Jolley v Sutton (used in context fo breach)

Keown v Coventry Healthcare (made clear that child trespasser can now bring claims under OLA 1984.)

Question 14

Where is an occupier defined in the act?

Answer 14

s. 2 OLA 1957 = same as the definition under common law.

Question 15

Definition of occupier?

Answer 15

Wheat v Lacon - anyone with sufficient control of the premises.

Question 16

Is an occupier limited to one person?

Answer 16

NO

AMF International v Magnet Bowling: independent contractors + occupiers despite separating screen.

Collier v Anglian Water Authority: water authority alone (STATE of promenade therefore LA not at fault).

Ferguson v Welsh: visitor in relation to one occupier and trespasser to the other.

Harris v Birkenhead: owner = legal occupier despite no formal steps to take possession.

Question 17

Ferguson v Welsh

Answer 17

Mr Ferguson was a lawful visitor in relation to Mr Spence who had arranged for him to complete demolition works.

Mr Spence himself had accepted the demolition job from the council with a clause preventing sub-contracting without consent.

Question 18

Where is the standard of care found?

Answer 18

s. 2(2)

Laverton v Kiapasha: reasonably competent occupier –> NOT perfect.

Question 19

Where does the standard differ?

Answer 19

Child visitors

Persons exercising a calling or profession.

Independent contractors.

Question 20

How does the standard differ for child visitors?

Answer 20

occupier must be prepared for children to be less careful than adults s 2(3)(a).

Question 21

How does the standard differ for persons exercising a calling or profession?

Answer 21

s. 2(3)(b) an occupier does not need to take extra steps to prevent someone suffering from damage as part of their normal job.

Question 22

How does the standard differ for independent contractors?

Answer 22

occupiers may escape liability if they acted reasonably in entrusting the work to an independent contractor s 2(4)(b) OLA 1957

Question 23

For s. 2(4)(b) to apply, what must the occupier demonstrate?

Answer 23

it was reasonable to use the external contractor in the first place.

reasonable to hire specific contractor chosen.

reasonable to check the work of contractors?

Question 24

Cases relating to reasonability of hiring specific contractor chosen?

Answer 24

Gwilliam v West Hertfordshire NHS Trust: ok to ask whether contractors are insured but not to check.

Bottomley v Todmorden Cricket Club: pyrotechnics went wrong and occupiers had not gone far enough to check insurance.

Naylor v Payling: no general duty to ensure an independent contractor is insured.

Question 25

Cases on reasonability of checking the work of the independent contractors?

Answer 25

Haseldine v Daw: Lift work technical - so no expectation of checking it.

Woodward v Mayor of Hastings: cleaning of icy steps needed to be checked.

Question 26

Cases on falling below the standard?

Answer 26

Haley v LBC

Laverton v Kiapasha: reasonable steps given resources of putting down map, mopping when possible.

Tedstone v Bourne Leisure: reasonable steps by putting down special tiles.

Tomlinson v Congleton

Question 27

Cases on falling below the stands with child visitors?

Answer 27

Perry v Butlins

Phipps v Rochester

Simkiss v Rhonda

Marsden v Bourne Leisure

Question 28

Cases on falling below with regard to people exercising for calling profession?

Answer 28

Roles v Nathan (chimney sweeps - warnings were specific - vague warnings will not suffice to absolve occupier from liability)

Eden v West (occupiers failed to warn joiner fo lack of lintels)

Moon v Garret (delivery man fell down unguarded trench)

Lough v Intruder Detection (burglar alarm installer fell from staircase being repaired.)

Question 29

When will warning notices work?

Answer 29

if such a warning “was enough to enable the visitor to be reasonably safe” s 2(4)(a) OLA 1957.

Question 30

Role v Nathan?

Answer 30

repeated warnings against cleaning the chimes and even pulling the sweeps out discharged the occupiers from liability when they died from CO poisoning owing to not extinguishing the boiler.

Question 31

Cases on volenti that succeeded?

Answer 31

Simms v Leiigh RFC: hit head on wall, in accordance with RU’s regulations so willingly accepted risk.

Titchener v BRB: 15-year-old admitted she knew of danger in being on line.

Question 32

Cases on volenti that did not succeed?

Answer 32

White v Blackmore: competitor was not aware that barriers at racing event were faulty.

Slack v Genie: participants did not know of faulty breaks so did not consent to crash.

Question 33

Which cases are examples fo CN?

Answer 33

Slack v Genie: passenger unskilled and so CN applied despite lack fo volenti.

Laverton v Kiapasha: no breach but had there been, damages would have been reduced by N.

Question 34

Can the duty be excluded?

Answer 34

OLA s2(1): ‘Occupier can extend, restrict, modify or exclude his duty to visitor in so far as he is free to do so’

Question 35

What does UCTA apply to?

Answer 35

Business liability

s2(1) Cannot exclude liability for death or personal injury

s2(2) Can exclude liability for other losses if it is reasonable to do so

Question 36

What does CRA apply to?

Answer 36

Consumer contracts

s 65(1) can’t restrict any liability for death / personal injury arising from negligence.

s 62(1): an unfair term is not binding.

Question 37

What is the position on exclusion of liability in common law?

Answer 37

White v Blackmore: Can exclude liability for any loss if it is reasonable to do so e.g. personal injury and property damage.