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Law > Occupier's Liability: Visitors > Flashcards

Occupier's Liability: Visitors Flashcards

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1
Q

Where does occupier’s liability come from?

A
  • Both statute and common law
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2
Q

What are the two key statutes in occupier’s liability? What do they cover?

A
  • The Occupier’s Liability Act 1957, which covers visitors

- The Occupier’s Liability Act 1984, which covers persons other than visitors

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3
Q

Does the occupier’s liability act 1957 define who the occupier is? What does it state?

A
  • No

- States that the rules of common law shall apply

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4
Q

What is the test to be applied in terms of occupier’s liability?

A
  • Occupational control (as in who has control over the premises)
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5
Q

In which case were four categories of occupier identified?

A
  • Wheat v Lacon & Co (1966)
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6
Q

What are the four categories of occupier?

A
  • If a landlord lets premises then the tenant will be the occupier
  • If the landlord who lets part of a building retains certain areas (such as an entry hall) then the landlord will be the occupier in respect of those areas
  • If an owner licenses a person to use premises but reserves the right of entry then the owner remains the occupier
  • If contractors are employed to carry out work on premises, the owner will generally remain the occupier, although there may be circumstances where the contractor could be the occupier
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7
Q

Who is a visitor under common law?

A
  • A person who has express or implied permission to enter the premises
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8
Q

Who can be a visitor under the Occupier’s Liability 1957 Act?

A
  • Persons who have a right to enter premises conferred by law (e.g firemen)
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9
Q

What does the Occupier’s Liability 1957 Act impose?

A
  • A common duty of care
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10
Q

What guidelines does the Occupiers Liability 1957 Act law down in applying the common duty of care? (4)

A
  • The occupier must be prepared for children to be less careful than adults
  • An occupier can expect a person to appreciate and guard against any special risks
  • A warning may discharge the duty of care
  • An occupier will not be liable for the fault of an independent contractor, provided they acted reasonably in entrusting the work and took reasonable steps to ensure the contractor was competent and the work was properly carried out
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11
Q

Explain the man on the Clapham omnibus

A
  • Hypothetical ordinary and reasonable person, used by the courts when it is necessary to decide whether a party has acted as a reasonable person would
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12
Q

What was the case that established the three rules used to exempt liability on the basis of contracting?

A
  • Haseldine v Daw (1941)
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13
Q

What happened in Haseldine v Daw (1941)?

A
  • Claimant injured by a faulty lift which had been surveyed by technicians a week previously
  • Claimant wanted to sue the owner of the building
  • HELD - the technical and specialist nature of lift maintenance meant it was not something that the occupiers could reasonably be expected to verify so the occupiers were not liable
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14
Q

What are the three rules to exempt liability on the basis of contracting that were set out in Haseldine v Daw (1941)?

A
  • The injury must have been caused by the work carried out by the contractor which they were contracted to do
  • It was reasonable for the occupier to employ an independent contractor
  • the occupier must be reasonably satisfied that the contractor was competent
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15
Q

What happened in Phipps v Rochester (1955)? Evaluate the decision in modern terms

A
  • 5 year old boy broke his leg after falling into a trench on a building site. The council knew that children used the site but didn’t do much to stop them
  • HELD - the council had not broken its duty of care - the duty of care of parents to keep them away was greater than any owed by the council
  • It is possible that the defendant would not receive such leniency today as there is clearly more of a duty to protect children
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16
Q

What happened in Wheat v Lacon (1966)?

A
  • Manager and his wife were licensed to run a pub on behalf of a brewery. They were allowed to take in paying guests, one of whom suffered a fatal fall down an unlit stairwell where the handrail coincidentally didn’t reach to the bottom of the stairs
  • HELD - both the pub manager and brewery had the characteristics of an occupier because they both had free access and control over parts of the premises so WOULD have shared liability, but a third party had removed a lightbulb, which was an intervening act
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17
Q

How does the Occupiers Liability Act 1957 define a “premises”?

A
  • land, buildings or any fixed movable structure, including a vessel, vehicle or aircraft
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18
Q

What happened in Glasgow Corporation v Taylor (1992)?

A
  • 5 year old boy died after eating poisonous berries from a tree
  • The council had not put up a fence around the tree, nor a sign indicating the danger, but had known that it was there, and poisonous
  • HELD - breach of duty, but it could have been a different outcome if the victim had been an adult
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19
Q

What happened in Ward v The Ritz Hotel (1992)? What did the courts say would be useful for the defendant to show?

A
  • Claimant injured when he fell over the rail on a hotel room balcony that was too low according to the British Safety Standards
  • Claim successful
  • The court said it is always useful for the defendant to show that they have met the required safety standards, although it is not a complete defence
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20
Q

What does case law suggest may go some way to absolving the defendant of liability?

A
  • Warning signs, but it depends on the sign and the hazard
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21
Q

What happened in Horton v Jackson (1996)?

A
  • Claimant lost an eye at a golf club driving range after being struck by a golf ball
  • The defendant argued there was a sign asking people to wait until golfers on the adjoining tee had taken their shots and it did not matter that this rule of etiquette was not enforced
  • It was also relevant that accidents at the club resulting in injury had been very scarce (2 in 800,000 rounds of golf)
  • Claim failed
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22
Q

What happened in Darby v National Trust (2001)?

A
  • Death by drowning at a National Trust property. There was no sign
  • Widow of victim sued saying that there was no sign highlighting the risk of drowning
  • CoA held - there didn’t need to be a sign as the risk of drowning in a deep pond was obvious
23
Q

What happened in Clare v Perry (2005)?

A
  • Claimant injured by climbing over a wall outside a hotel which led to a dangerous drop. She had chosen not to take the proper exit. Her argument was that there was no fencing preventing her from taking this route
  • HELD - the defendant’s duty as an occupier to take reasonable care did not extend to protecting guests from their own foolish behaviour
24
Q

What happened in Perry v Butlins (1997)?

A
  • 3 year old boy fell onto a low wall with hard and sharp angles
  • The wall was near where children of that age were entertained
  • HELD CoA said the case was borderline, but on the facts the sharpness of the wall along with its location swung the balance towards a breach of a duty of care
25
Q

What happened in Jolley v Sutton LBC (2009)?

A
  • Children tried to mend a boat that had been dumped on council land, which resulted in one being injured and paralysed
  • HELD - children could be relied upon to find ingenious ways of hurting themselves and it was reasonably foreseeable that this could happen
  • The council were therefore liable for a breach in their duty for not removing the boat at the earliest opportunity
26
Q

What happened in Bourne Leisure v Marsden (2009)?

A
  • Two year old boy drowned after wandering away from his mother in a pond in a caravan park
  • Bourne Leisure said they made it clear to customers that the ponds were there and posed a hazard to young children
  • HELD - no breach of duty of care
27
Q

Do occupiers need to take precautions against risks that normally arise in the course of a person’s work? According to what Act?

A
  • No

- Occupiers Liability 1957 Act

28
Q

What happened in Roles v Nathan (1963)?

A
  • Two chimney sweeps died after ignoring ample warnings of carbon monoxide emissions and were found dead after returning in the evening to clean flues that they were told to stay away from until the next day
  • Widows brought an action under the 1957 Occupiers Liability Act
  • HELD - not liable - they were warned SO MANY TIMES
29
Q

What happened in Ogwo v Taylor (1988)?

A
  • Defendant negligently set fire to his own home after botched DIY
  • The resulting fire injured the fireman (claimant) who attended the scene
  • Could this be regarded simply as something the claimant had to face as a risk because of his job?
  • HELD - no - the risk of injury was foreseeable, but not necessarily inevitable, and the defendant’s actions had placed the fireman in that position
30
Q

In terms of duty of care, the courts are reluctant to lay down a rule in regard to what? What about Ogwo?

A
  • The duty of care owed to people in lines of work that expose to risk
  • The fire in the Ogwo case was caused negligently
31
Q

An occupier is not liable for the negligence of the contractor they appointed in what circumstance?

A
  • If in choosing them they exercised all reasonable care
32
Q

What was held in Woodward v The Mayor of Hastings (1945)?

A
  • Held that the failure of occupiers tp put in place someone to check the work of the cleaner made them liable
  • No technical expertise was needed to see whether a step had been cleared of snow
33
Q

What happened in Bottomley v Todmorden Cricket Club (2003)?

A
  • Claimant was a volunteer helping out at a fireworks display, and was injured
  • HELD - cricket club liable for not hiring someone competent enough to do the job, and for failing to check that they had insurance that covered the display
34
Q

What happened in Gwilliam v West Hertfordshire Hospital NHS Trust (2002)?

A
  • Injuries suffered by claimant on a ‘splat wall’ organised by a sub-contractor
  • HELD - the sub-contractor was no competent to put on this activity and had no insurance
  • Hospital owed a duty of care, but there was no breach as they had asked and been told by the sub-contractor that they did have insurance (when they didn’t)
35
Q

What does section (4)(b) of the 1957 Occupiers Liability Act state?

A
  • occupiers have to take reasonable steps to satisfy themselves that the contractor is reasonably competent to carry out the work that they have been contracted to complete
36
Q

What does section 2(3)(a) of the 1957 Occupiers Liability Act state?

A
  • Occupiers must be prepared for children to be less careful than adults
37
Q

What did Naylor v Payling (2004) say? How was it different to Gwilliam?

A
  • Gwilliam could be distinguished on its facts because the splat wall activity was a one off event and the defendants had made adequate inquiries as to competence and insurance in any case
  • In Naylor, the situation was a little different in that the contractor had been subjected to regular checks and training by the local police and council, and a compulsory part of the job was to undergo these checks
38
Q

In Naylor v Paylinh (2004), what did the court say about insurance?

A
  • There wasn’t a duty on the part of the occupiers to check for insurance
39
Q

What does section 5(1) of the 1957 Occupiers Liability Act state?

A
  • Where a contractor enters premises under the terms of a contract, the duty of care they are owed is the same as that of a visitor - unless a higher standard has been agreed contractually
40
Q

Name a case where contributory negligence has been used as a defence to an action brought under the 1957 Occupiers Liability Act

A
  • Clare v Perry (2005)
41
Q

According to Roles v Nathan (1963), what is an effective warning? What isn’t?

A
  • If a defendant had pointed out the safest course of action to a visitor, then they have given an effective warning
  • if the visitor has no choice but to take a risk, and the defendant merely points out this unavoidable risk, then that is not a sufficiently effective warning`
42
Q

What happened in Rae v Mars (1990)?

A
  • An experienced surveyor injured himself falling down a 3 foot drop on entering an unlit storeroom at the defendant’s factory
  • Defendants liable under the 1957 Act because the claimant had not been given a specific warning of the immediacy of the danger
  • BUT - the claimant was held to be contributorily negligent 1/3 because he neither switched on his torch nor cast his eye to the ground
43
Q

What happened in Staples v West Dorset (1995)?

A
  • Claimant slipped on green algae whilst taking a photo on a quayside wall that had been made famous as the location for a film
  • Court said that the risk of slipping was so obvious that no warning sign was necessary. Furthermore, it said that the whole point of the quayside was that it did not have a barrier which would have detracted from its status as a tourist attraction
44
Q

What happened in English Heritage v Taylor (2016)?

A
  • A tourist attraction (castle) had a narrow path above a dry moat which was a 12 foot drop on the other side
  • Claimant lost footing and fell into the moat
  • Defence was that the risk of harm was obvious, but the CoA said it wasn’t obvious enough to offer a defence
  • On the facts, there should have at least been a warning sign in place
45
Q

Describe valid exclusion clauses. How old are they? What do they do?

A
  • 20 years before the 1977 Unfair Contract Terms Act

- Prohibiting any valid exclusion or death or personal injury

46
Q

Following the Unfair Contract Terms Act 1977, when will an exclusion clause trying to absolve liability for death or personal injury operate successfully? What does this depend on?

A
  • So long as it is reasonable to do so
  • Depends on whether the claimant has actually accepted a degree of risk, and the extent to which they are equipped to avoid it, in terms of expertise of protective equipment
47
Q

What is the duty of care if the visitor has not entered an agreement with an exclusion clause?

A
  • That of the common law/what is reasonable
48
Q

When does the Unfair Contract Terms Act 1977 not apply?

A
  • Where visitors have entered premises for leisure, business or educational purposes
49
Q

What does section 2 of the 1957 Occupiers Liability Act state?

A
  • someone in the position of the claimant visitor MUST have specifically accepted the risk as part of the contract of hire
50
Q

Can occupiers avoid liability by displaying a notice saying it doesn’t accept liability for any injuries? Says who?

A
  • No

- 1957 Occupiers Liability Act

51
Q

What does the 2015 Consumer Rights Act state?

A
  • In a consumer contract, you cannot exclude liability for death or personal injury in any event
52
Q

What is the difference between a consumer contract and a business contract?

A
  • Consumer contract is one where one side is not an expert and there is an inequality of bargaining power as a result
  • In business contracts the expertise and risk acknowledgement would be greater
53
Q

The 1957 Occupiers Liability Act says that consequential damage is recoverable, but not pure economic loss. What is the exception? Case? Under what conditions?

A
  • Caparo v Dickman Industries (1990) shows that pure economic loss is recoverable where it is foreseeable and reasonable to do so, if there is reliance, proximity and the remoteness rules have been satisfied

Law (45 decks)

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