Occupier's Liability [Tort Law] Flashcards
Who is the Occupier?
This definition has been developed through case law, where an O is said to be anyone in control of the land (Wheat v E.Lacon) and that there can be more than one (Harris v Birkenhead Corporation).
What are premises?
Under s1(3)(a), a premises is said to be ‘a person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft’ and can even include lifts or ladders.
Types of Lawful Visitors
There are invitees, under s1(2), who are those who have express permission to enter,
there are licensees, under s1(2), who have express/implied permission to enter for a period of time,
there are those with contractual permission, under s5(1), those who have permission by contract to enter,
and there are those with statutory right of entry, under s2(6), who’re those who have the legal right to enter a property
Common DOC to Lawful Visitors
Under s2(2), O owes a common DOC, which is ‘a duty to take such care as is reasonable in all circumstances of the case to see that the visitor will be reasonably safe in using the premises for the purpose for which they are invited or permitted by the O to be there’. The O should take reasonable care to ensure the visitor is reasonably safe (Laverton v Kiapasha Takeaway Supreme).
Duty to Lawful Child Visitors
Under s2(3)(a), ‘an O must be prepared for children to be less careful than adults’. O owes a higher Standard of Care (SOC) if there are ‘allurements’ (Taylor v Glasgow Corporation), parents are expected to accompany children in unsafe places (Phipps v Rochester Corporation) and the harm to the child must be reasonably foreseeable (Jolley v Sutton L.B.C).
DOC to Tradespeople
O owes a DOC to the tradesperson, but not for risks they should know of as part of their job. Under s2(3)(b), ‘an O may expect that a person, in the exercise of their calling, will appreciate and guard against any special risks ordinarily incident to it’.
Tests for DOC to Independent Contractors
The first says that it must be reasonable for the O to give the work to an independent contractor (Haseldine v Daw & Son).
The second says the contractor must be competent and that the O should verify their competency (Bottomley v Todmorden Cricket Club).
The third says the O should check the work is done properly, either themselves or by hiring another (Woodward v Mayor of Hastings).
Defences: Contributory Negligence
The first is contributory negligence under the Law Reform (Contributory Negligence) Act 1945. If the C contributed to their own injuries/damage, then the amount owed to them in damages will be reduced.
Defences: Volenti Non Fit Injuria
The second is Volenti Non Fit Injuria, the defence of consent. If C ‘willingly accepted’ the risk of harm/damage then this can be a full defence for the O.
What are the differences of the Defence of Consent?
Under s2(5) of ola 1957 and s1(6) of ola 1984
Defences: Warning Signs (1957)
The third is warning signs, which, under s2(4)(a), will not be sufficient ‘unless in all circumstances it was enough to enable the visitor to be reasonably safe’. The sign must be informative, a general warning of danger is not enough (Rae v Mars) and if the risk is obvious then the O cannot be liable (Darby v National Trust).
Defences: Warning Signs (1984)
The third are warning signs, under s1(5). If there are sufficient warning signs that are not just general warning of danger, then this may be a full defence for the O.
Establishing DOC to Trespassers
The Duty of Care (DOC) owed to trespassers, under s1(3), is much more limited and is split into 3 tests that must be met by the O. The first under s1(3)(a) says that the O must know or have reasonable grounds to expect that danger exists (Rhind v Astbury Water Park).
The second under s1(3)(b) says that O must know or have reasonable grounds to expect someone will come into the vicinity of the danger (Higgs v Foster).
The third under s1(3)(c) says that the risk is one which O would be reasonably expected to guard against to offer some protection (Tomlinson v Conglenton Borough Council).
DOC owed to trespassers
Under s1(4), they are ‘to take such care as is reasonable in all the circumstances of the case to see that they do not suffer injury on the premises by reason of the danger concerned’.
Obvious Risk
Firstly, if the risk of injury is obvious then the O is not liable for C’s injuries (Ratcliff v McConnel).
