occupiers liability Flashcards
What is the definition of Occupiers’ Liability?
The legal responsibility of an occupier for damage caused by the state of the premises.
Which statute applies to lawful visitors?
Occupiers’ Liability Act 1957
Which statute applies to unlawful visitors?
Occupiers’ Liability Act 1984
What is the first common element of Occupiers’ Liability?
D must be an occupier.
Who is an occupier?
Wheat v Lacon- anyone with enough control over the premises and there can be more than one occupier.
What is the second common element of Occupiers’ Liability?
The defendant must be an occupier of ‘premises’.
What is meant by premises?
S1(3)(a) of the 1957 act refers to having occupation or control of land and buildings, as well as a fixed or movable structure including any vessel, vehicle and aircraft.
What are some examples of premises?
Sheds, bridges, ladders, caravans, scaffolding, greenhouses, houses, factories, warehouses, fields, gardens, lakes, tents, playgrounds etc.
Who is a lawful visitor (third common element)?
-Invitees (people who have been invited onto the premises)
-Licensees (people with express or implied permission to be on the premises for a specific time/purpose
-Anyone with contractual permission (paid to be on the premises e.g ticket holder)
-Anyone with statutory permission (e.g. firefighter, police)
What doesn’t the term lawful visitor include?
Using public rights of way because no permission is needed to be on them.
Who is a trespasser?
A person who has no permission to be on the land or a lawful visitor who exceeds their permission for being on the premises (they then become a trespasser).
When is a duty owed under s2(1) of the 1957 Act?
An occupier of premises owes the same duty, the common duty of care to all their visitors.
What is the duty owed under s2(2) of the 1957 Act?
Occupiers have a duty towards visitors to take care as in all circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which they are invited to be there.
Which cases show what reasonable care means?
Laverton v Kiapasha Takeaway Supreme- Ds not liable as they didn’t have to make the shop completely safe, only reasonably safe.
Dean and Chapter of Rochester Cathedral v Debell- Tripping, slipping and falling are everyday occurrences and no occupier could possibly ensure that all areas were kept in perfect condition. No need to guarantee visitor safety.
What factors will the court take into account to decide if D acted reasonably?
-Size of risk
-Seriousness of potential harm
-Practicality of precautions
-Benefits outweigh the risk
(Don’t need cases from negligence)
What does s2(3)(a) of the 1957 Act say?
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.
What is the main case for s2(3)(a)?
Glasgow Corporation v Taylor- the council knew the berries were dangerous and didn’t fence them off. Berries are an allurement to children so they should have taken more care.
What did Jolley v Sutton say about s2(3)(a)?
It must be foreseeable than an allurement could cause damage for D to be liable.
What is the rule regarding particularly young children under s2(3)(a)?
Phipps v Rochester Corporation- D is entitled to presume that parents will not let young children go to clearly unsafe places unaccompanied.
What does s2(3)(b) of the 1957 Act say?
A person carrying out a trade/calling should appreciate and guard against any special risks ordinarily incident to it. I.e professionals should be able to protect themselves from risks normally part of their job and therefore D needs to take less care.
Which case would you use to show s2(3)(b) of the 1957 Act?
Roles v Nathan. The chimney sweeps had been warned of the danger of carbon monoxide and they should be aware of this risk anyway due to the nature of their job. They should be able to protect themselves from this risk because of their profession.
What are the specific defences to the 1957 Act?
-Exclusion clauses
-Warnings
-Work done by independent contractors
How does the defence of an exclusion clause work?
Under s2(1) it says that a residential occupier may exclude liability via a sign/ticket/term in a contract which acts as a complete defence. However, to exclude liability for children, the child must be able to understand the exclusion and s65 of the Consumer Rights Act 2015 says that a business can’t exclude liability for personal injury or death to consumers under OLA 1957.
How does the defence of warnings work?
S2(4)(a) is a complete defence where D has given a warning that in all the circumstances, would enable the visitor to be reasonably safe. Unlike an exclusion clause, this doesn’t need to be in a contract and could be used by businesses to escape liability for personal injury or death.
