OCCUPIERS’ LIABILITY

Question 1

Which statutes is occupiers’ liability governed by?

Answer 1

1) the Occupiers’ Liability Act 1957
- governs an occupier’s duties to ‘visitors’

2) the Occupiers’ Liability Act 1984
- governs an occupier’s duties to other ie trespassers

Question 2

What does s1(1) of the 1957 Act cover?

Answer 2

• ‘dangers due to the state of the premises’
• ‘things done or omitted to be done on the premises’
• must be related to the state of the premises

Question 3

What would the claimant need to do to fall within the 1957 Act?

Answer 3

• establish that they have suffered loss due to the state of the premises
• identify the occupier
• prove that they are a visitor
• establish that occupier failed to take reasonable care for C’s safety

Question 4

Who is an occupier? Use an authority to back this up.

Answer 4

• The Occupier’s liability act doesn’t define occupier
• Wheat v E Lacon & Co Ltd
• the most important characteristic is how much control they have over the premises
• someone who is not an owner of the premises can still have sufficient control over them to be an ‘occupier’

Question 5

Who is a visitor?

Answer 5

• a guest you invite to dinner
• a painter or decorator who enters your house to do a job
• a theatre goer
• a firefighter who enters your house to put out a fire
• visitors are people who have express or implied permission to be on the occupier’s land

Question 6

Define premises.

Answer 6

• it includes open land as well as fixed or moveable structures
• vessels, vehicles or aircraft

Question 7

What is a duty owed by an occupier to visitors called under the Occupiers’ Liability 1957? What obligation does this impose on an occupier?

Answer 7

• a common duty of care
• under s2(2) the duty is to take care as is reasonable in all circumstances to see that the visitor is reasonably safe in using premises
• duty is directed to visitor’s safety as opposed to safety of premises

Question 8

Which relevant factors are taken into account when deciding whether it is a claim in negligence or a standard of care expected of the ‘reasonable occupier?

Answer 8

• nature of the danger
• purpose of visit
• seriousness of injury risked
• magnitude of risk
• cost and practicality of steps required to avoid the danger
• how long the danger has been on the premises
• any warning of the danger
• type of visitor

Question 9

What two types of special visitor are there?

Answer 9

1) one requiring a greater degree of care on the part of the occupier
- children s2(3)a
- cannot be expected to appreciate dangers which would be obvious to an adult

2) or visitors coming onto the premises to exercise their skills s2(3)(b)

Question 10

Glasgow Corporation v Taylor

Answer 10

• concealed danger of the poisonous berries
• allurement (temptation) so should’ve taken more responsibility and precautions
• D should have warned of danger or fenced off shrubs

Question 11

Phipps v Rochester Corporation

Answer 11

• parents should take some responsibility in terms of the safety of their children

Question 12

What is the occupier entitled to expect a skilled visitor to appreciate?

Answer 12

• they’re expected to guard against any special risks which are part of the visitor’s job
• s2 (3)(b) only applies if the risks are usual to the job they’re doing

Question 13

What will an adequate warning of the relevant danger from the occupier do?

Answer 13

• as in Roles v Nathan, the occupier will not be in breach of duty of care
• note this must be ADEQUATE

Question 14

Will a warning of the relevant danger given by an occupier always enable them to escape liabilty?

Answer 14

• no
• depends on whether the visitor is give a sufficient warning

Court will look at:
1) nature of the warning
- did they mention danger by name or was it general warning
- nature of danger, was it hidden or obvious
- type of visitor - adult or child, is written warning enough for child

Question 15

What is the distinction between warnings and exclusion notices?

Answer 15

• a warning notice may allow occupier to prove that they performed their duty
• an exclusion notice may operate as a potential defence to a claim once visitor has established breach of the common duty of care

Question 16

Where does the occupier’s liability stand in terms of independent contractors?

Answer 16

• given the occupier satisfies the three provisos to be found in 2(4)(b), occupier will have discharged their common duty of care
• however it will only apply to ‘work of construction, maintenance or repair’
• it must be reasonable for occupier to engage with the contractor to do the task
• occupier must take reasonable steps to make sure contractor is competent
• they must also take reasonable steps to make sure contractor’s work is done properly e.g make enquiries locally or of Trade Associations

Question 17

Use the cases Woodward v Mayor Hastings and Haseldine v Daw to explain how s2(4)(b) only really works when the occupier has done everything that is reasonably required of them in regards to independent contractors.

Answer 17

1) child slips on ice which cleaner has negligently left
2) landlord of block of flats engages highly reputable engineers to maintain lift and visitor injured when lift malfunctions

• under s2(4)(b), the occupier is only meant to check to the extent they can
• since no specialist knowledge is required to recognise that an icy step is dangerous, the occupier in the second scenario, by not checking the contractor’s work, has not discharged their duty of care and so would be liable (Woodward v Mayor of Hastings)
• in contrast, the servicing of a lift is work of a technical nature which an occupier could not reasonably check themselves. Accordingly, the occupier would discharge their duty by entrusting the work to the contractor without the need to check the work for themselves (Haseldine v Daw).

Question 18

Are there any defences available to an occupier who has breached their common duty of care? Use authorities where applicable.

Answer 18

1) under s2(5) volenti
- C must know of the precise risk that causes injury and show by their conduct that they willingly accept legal risk

2) exclusion of liability
- White v Blackmore
- D was unable to escape liability by relying on the warning notices because they did not enable visitor to be reasonably safe
- therefore not adequate
- could not use defence of consent because D was not aware of problems with ropes so therefore could not consent to risk of injury
- claim failed because D had taken reasonable steps to draw attention to clear exclusion notice

3) s2 of UCTA
- business to business relationship
- cannot exclude liabilty for death and personal injury
- can exclude liability for other types of loss, subject to reasonableness test

CRA 2015
- s65(1) cannot exclude liability for death or personal injury
- s62 can exclude liability for other types of loss subject to fairness test

4) contributory negligence
- damages would be reduced

Question 19

Where can the law for occupiers liability in terms of trespassers be found?

Answer 19

The Occupiers’ Liability Act 1984

Question 20

Who is a trespasser?

Answer 20

• Lord Dunedin (in the case of Robert Addie & Sons (Colliery) Ltd v Dumbreck [1929] AC 358) defined a trespasser as ‘one who goes upon land without invitation of any sort and whose presence is either unknown to the proprietor, or, if known, is practically objected to’.

Question 21

To whom is the duty owed?

Answer 21

• s1(1)(a) states that it is owed to people other than visitors

Question 22

Which three other types of entrants does the 1984 Act involve?

Answer 22

• people entering under an access agreement or order under the National Parks and Access to the Countryside Act 1949 (s 1(4)(b) of the 1957 Act).
• people who enter land pursuant to the Countryside and Rights of Way Act 2000 (s 1(4)(a)
  of the 1957 Act) (the duty owed to this category of person is limited by the 1984 Act).
• people who exercise private rights of way over land.

Question 23

What does s3a and b say about whether there is an existing duty under the 1984 Act?

Answer 23

• the occupier must require actual knowledge of facts which would lead a reasonable occupier to be aware of the danger or presence of the occupier
• Donoghue v Folkestone Properties Ltd (didn’t expect there to be a trespasser)
• Rhind v Astbury Water Park ECWA (didn’t expect there to be a danger)

Question 24

What are the relevant factors for the purposes of s1(3)(c) of the 1984 Act?

Answer 24

• the nature and extent of the risk
• the type of trespasser
• the cost and practicability of precautions

Question 25

What may limit the duty under the 1984 Act?

Answer 25

• the 1984 Act only deals with injures which arise due to the state of the premises
• cannot be injured due to an activity or the trespasser’s own conduct e.g diving into shallow pool
• does not cover damage to trespasser’s property ONLY PERSONAL INJURY under s1(4) and (8)
• Tomlinson v Congleton Borough Council

Question 26

What must be shown for the occupier to be in breach of duty?

Answer 26

• under s1(4) if they fall below the standard of the reasonable occupier
• need to take reasonable care

Question 27

What will the court consider when determining whether the occupier is in breach?

Answer 27

• The nature of the danger (ie hidden or obvious and the degree of danger).
• The age of the trespasser (ie adult or child).
• The nature of the premises (ie how dangerous are they? A private house? An electrified
  railway line?).
• The extent of the risk (ie is there a high or low risk of injury?).
• The cost and practicability of precautions (ie how easy would it be to remove or reduce
  the risk and what would such measures cost?).
• The nature and character of the entry (eg burglar, child trespasser or adult
  inadvertently trespassing).
• The gravity and likelihood of injury.
• The foreseeability of the trespasser (ie the more likely people are to trespass, the more
  precautions must be taken).

Question 28

Will a warning to a trespasser always be enough to discharge the occupier’s duty?

Answer 28

• a warning will be inadequate for children
• s1(5) where a warning is inadequate to protect trespasser from danger, the occupier should use an obstacle

Question 29

Give an authority for trespassing children.

Answer 29

• Glasgow Corporation V Taylor
• Phipps v Rochester

Question 30

Are there any defences available to an occupier in terms of liability for trespassers?

Answer 30

1) volenti
- Ratcliff v McConnell and another
- C was aware of the risk of diving into a partly drained swimming pool

2) exclusion of liabilty
- 1984 Act is silent on whether this applies

3) contributory negligence