Occupiers Liability Flashcards
General definition
Legal responsibility of an occupier for damage caused by the state of the premises
Two statutes
Occupiers Liability Act 1957- lawful visitors
1984- unlawful visitors
Common element 1 (apply to both Acts)
Wheat v Lacon
Occupier is anyone with enough control over the premises
Common element 2- S1(3)(a)
1957 Act
Premises are land, and buildings, as well as a fixed or moveable structure, including any vessel, vehicle or aircraft
Element 3 (1957)- ‘lawful visitor’
Invitees- guests (family,friends)
Licensees- express or implied permission to be on premises for time/purpose (trades people, posting leaflets, milkman)
Contractual- paid/work (ticket for concert)
Statutory rights- (firefighter, police officer)
DOES NOT INCLUDE USING PUBLIC RIGHT OF WAY
Element 4 (1957) when duty owed S2(1)
An occupier of premises owed the same duty of common duty of care to all lawful visitors
Element 5 (1957) what is the duty
S(2)(2)
Debell
Take reasonable care to ensure they are reasonable safe
Elements to take into account if D has taken reasonable care
Size of risk (Miller v Jackson)
Seriousness of potential harm (Paris v SBC)
Practicability of precautions (Paris v SBC)
Benefit outweighs cost (Watt v HCC)
Different type of duty
S2(3)(a)
An occupier must be prepared for children to be less careful than adults and so the premises must be reasonable safe for a child of that age (Jolley v Sutton)
Phipps v Rochester Corporation
D is entitled to presume parents will not let young children go to clearly unsafe places unaccompanied
Different type of duty
S2(3)(b)
Tradesperson should appreciate and guard against any special risks ordinarily incident to it (Roles v Nathan)
Exclusion clauses (1957) S2(1)
Complete defence:
A residential occupier may exclude liability via a sign/ticket/term in a contract
Children must be able to understand sign
S65 Consumer Rights Act 2015 says a business cannot exclude liability with a sign for personal injury or death
Warning sign S2(4)(a) 1957
Warning ‘in all circumstances would enable the visitor to be reasonably safe’
Rae v Mars
Exclusion S2(4)(b) 1957
Occupier is not at fault for the work of an independent contractor if:
- reasonable for occupier to give work to an independent contractor
- D made sure the contractor hired is competent
- occupier must check work has been done properly
Exclusion independent contractors
1. Reasonable for occupier to give work to an independent contractor
Haseldine v Daw
Exclusion independent contractors
2. Contractor hired is competent to carry out task
Bottomley v Todmorden Cricket Club
Exclusion independent contractors
3. Occupier must check the work has been done properly
Woodward v The Mayor of Hastings
Remedies 1957
Pay damages for death or personal injuries or property damage
S1(1)(a) OLA 1984
Applies to unlawful visitors for injury caused by dangerous premises (danger must come from state of premises not trespasser’s actions)
1984 S1(1)(a) defining unlawful visitors
Someone who does not have permission to be where they are or do what they are doing
1984 Duty only applies if
S1(3)(a) occupier is aware of the danger or has reasonable grounds to believe it exists
S1(3)(b) occupier knows or has reasonable grounds to believe that the other is in the vicinity of the danger or that he may come in to the vicinity of the danger
S1(3)(c) the risk is one against which he may be expected to offer the other some protection
S1(3)(a) 1984
Aware of danger or has reasonable grounds to know it exists
Rhind v Astbury Water Park
S1(3)(b) 1984
D knows or has reasonable grounds to believe that the other is in the vicinity of the danger or may come into vicinity of the danger (occupier will not be liable if he had no reason to suspect the presence of a trespasser)
Higgs v Foster
S1(3)(c) 1984
Risk is one against which he may be expected to offer the other some protection (occupier will not be liable if the danger is obvious)
Tomlinson v Congleton borough council
S1(4) 1984
D had to take such care as is reasonable in circumstances to see he is not injured by reason of the danger
Keown v Coventry Healthcare NHS Trust
Same rules apply to children as trespassers
S1(5) 1984/ Westwood v Post Office
Taken reasonable steps in circumstances to give warning of the danger, or to discourage trespassers from taking the risk
S1(8) 1984
Ordered to pay damages for death/personal injury only
Evaluation: lack of statutory definitions
OLA does not define terms so judges have to interpret (Wheat v Lacon & S1(3)(a)
✅- allows judges to be flexible when making decision
- bad decisons not due to narrow wording
- allows law to change rather than time locked
❎ - definitions changing can create uncertainty
- hard for people to prepare for trials
- definitions may go against what P intend
Evaluation: objective vs subjective tests
Lawful visitors always owe duty- does not matter if D knew of danger that C is in- unlawful is subjective as D must know of danger and trespasser
✅- ensures protection for all lawful visitors
- only protects trespassers in limited circumstances which creates justice
❎- having subjective tests for trespassers is inconsistent with other torts (negligence)
- each case decided on facts creates uncertainty
Evaluation: protecting children
OLA 57 protects children vs 84 offers no extra protection (Jolley v Sutton vs Keown v Coventry NHS Trust)
✅- children more likely to be harmed so law is fair and creates justice
❎- children more likely to get hurt and more likely to trespass innocently
- more likely to be injured and less likely to be protected
Evaluation: making C more responsible
Trespassers have to avoid obvious risks (Tomlinson v Congleton BC)
✅ ensured occupiers dont carry unusual responsibility
Avoids unneccassary cases which saves P’s time
❎ avoids purpose of making D liable for damage caused by their land so now creates uncertainty
