Occupier's Liability Flashcards by Harrison Edmonds

Definition of Occupier stems from common law

s. 1(2) OLA 1957

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Test for occupier

Wheat v Lacon:

per Lord Denning - occupier has sufficient degree of control over the particular matrix of fact that effected claimant.

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Sub-contractor can be deemed as occupier

Ferguson v Welsh

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Joint-liability between multiple occupiers

Alexander v Freshwater Properties Ltd

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Definition for visitor stems from common law

s. 1(2) OLA 1957

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User of public right of way does not get to claim occupier’s liability

McGeown v Northern Ireland Housing Executive

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Visitor can become non-visitor through exceeding permission or purposes for which they were invited

Tomlinson v Congleton BC

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Definition of premises as land, buildings, as well as fixed and moving structures

s. 1(3) OLA 1957

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D can cease to be occupier of property if there is contractual relationship between them an another occupier

Wheeler v Copas

ladder case

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Occupier has a duty to keep visitor reasonably safe for the purposes for which they are there (not to keep premises safe)

s. 1(1) OLA 1957

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Occupancy v activity

Fairchild v Glenhaven Funeral Services Ltd:
occupier not liable for C’s exposure to asbestos as that was a result not of state of premises but because employers got them to do activity that exposed C.

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Occupancy v activity

Portsmouth Youth Activities Committee v Poppleton:

Climbing wall with matt. Occupier not liable as C jumped and knew risks.

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Common duty of care

s. 2(2) OLA 1957:
duty to take all the reasonable circumstances of the case as is reasonable to see that the visitor will be reasonably safe in using premises for the purpose for which they have been invited.

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Children

s. 2(3)(a) OLA 1957:

Occupier must do more to discharge duty towards children than to adult of sound mind (age matters)

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Allurements to children

Glasgow Corp v Taylor:

poisonous shrub - known danger to adults appealing to children - take precautions to prevent harm.

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Young child under accompaniment

Phipps v Rochester Corporation
if child is really young, there could be an expectation that guardian would keep them away - warnings must be sufficient for an adult.

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Wooden boat is an allurement to children

Jolley v Sutton LBC

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Water fountain not an allurement

West Sussex CC v Pierce:

occupiers do not have duty to insulate children from all risk.

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Exercise of calling

s. 2(3)(b) OLA 1957

Chimney Sweeps

Roles v Nathan:

occupier brings in professional and makes warnings

Firefighter and chip pan fire

Salmon v Seafarer Restaurants:
Occupier does not do much to prevent injury and brought it about through their own negligence, which made the premises more dangerous

Warnings can make a visitor reasonably safe

s. 2(4) OLA 1957

Statutory enshrinement of volenti defence

s. 2(5) OLA 1957

National Trust

Darby v National Trust:

Lack of warning signs at lake irrelevant, as danger was obvious

Volenti defence not always applicable

Bunker v Charles Brand: | C accepted risk of walking over rollers, but liability of occupier for not putting in plank walkway.

Exclusions of business/ trader liability

s. 65 CRA 2015

No exclusion for recreational liability

s, 66 CRA 2016

Liability can pass to a contractor if they have sufficient control

s. 2(4)(b) OLA 1957

Asking for insurance is enough for duty to be discharged to contractor

Gwilliam v West Hertfordshire Hospitals NHS Trust

If occupier engages with contractor reasonable, liability can shift to contractor

Maguire v Sefton: | occupier relied on contractor telling them gym machines were in good order

Liability to non-visitors

OLA 1984

Cause of OLA 1984

British Railways Board v Herrington: | children who didn't know better often non-visitors

Visitor becomes non-visitor if he exceeds permission and 2 assumptions

Tomlinson v Congleton per Lord Hoffman: | visitor assumed to have duty; non-visitor is no duty

Limited notion of duty owed to tesspassers

s. 1(1)(a) OLA 1984

Duty owed to Ramblers

Countryside and Rights of Way Act 2000

No automatic duty owed to non-visitors as there is to visitors

Lord Hoffman in Tomlinson v Congleton BC

3 limb test for whether duty is owed to non-visitors

s. 1(3) (a)-(c) OLA 1984 | Discretion for judges

Exclusion of duty to highway users

s. 1(7) OLA 1984

Exclusion of liability to property damage of non-visitors

s. 1(8) OLA 1984

Duty to take care as is reasonable that non-visitor does not suffer injury on the premises

s. 1(4) OLA 1984

If danger is obvious, it is non-visitor's fault

Donoghue v Folkestone Properties and Tomlinson v Congleton BC

Child as non-visitor in the middle of spectrum

Keown v Coventry Healthcare NHS Trust: | 11 year old knew climbing fire escape was dangerous.

Assumption of risk by non-visitor

s. 1(6) OLA 1984

Volenti defence in non-visitor case

Ratcliffe v McConnell

Presumption that no exclusions to 1984 Act

As it is Parliamentary statute

3 ways to discharge a duty as occupier

Remove the danger from premises. Give suitable and reasonable warnings (different per visitor and purpose, or non-visitor (if child)). Volenti defence