Occupiers Liability

Question 1

What is the definition of Occupiers’ Liability?

Answer 1

The legal responsibility of an occupier for damage caused by the state of the premises

Question 2

Which statute applies to lawful visitors?

Answer 2

Occupiers’ Liability Act 1957

Question 3

Which statute applies to unlawful visitors?

Answer 3

Occupiers’ Liability Act 1984

Question 4

What is the first common element of Occupiers’ Liability?

Answer 4

D must be an occupier.

Question 5

Who is an occupier?

Answer 5

Wheat v Lacon- anyone with enough control over the premises and there can be more than one occupier.

Question 6

What is the second common element of Occupiers’ Liability?

Answer 6

The defendant must be an occupier of ‘premises’.

Question 7

What is meant by premises?

Answer 7

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.

Question 8

What are some examples of premises?

Answer 8

Sheds, bridges, ladders, caravans, scaffolding, greenhouses, houses, factories, warehouses, fields, gardens, lakes, tents, playgrounds etc.

Question 9

Who is a lawful visitor (third common element)?

Answer 9

-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)

Question 10

What doesn’t the term lawful visitor include?

Answer 10

Using public rights of way because no permission is needed to be on them.

Question 11

Who is a trespasser?

Answer 11

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).

Question 12

When is a duty owed under s2(1) of the 1957 Act?

Answer 12

An occupier of premises owes the same duty, the common duty of care to all their visitors.

Question 13

What is the duty owed under s2(2) of the 1957 Act?

Answer 13

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.

Question 14

Which cases show what reasonable care means?

Answer 14

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.

Question 15

What factors will the court take into account to decide if D acted reasonably?

Answer 15

-Size of risk
-Seriousness of potential harm
-Practicality of precautions
-Benefits outweigh the risk
(Don’t need cases from negligence)

Question 16

What does s2(3)(a) of the 1957 Act say?

Answer 16

An occupier must be prepared for children to be less careful than adults and so the premises must be reasonably safe for a child of that age.

Question 17

What is the main case for s2(3)(a)?

Answer 17

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.

Question 18

What did Jolley v Sutton say about s2(3)(a)?

Answer 18

It must be foreseeable than an allurement could cause damage for D to be liable.

Question 19

What is the rule regarding particularly young children under s2(3)(a)?

Answer 19

Phipps v Rochester Corporation- D is entitled to presume that parents will not let young children go to clearly unsafe places unaccompanied.

Question 20

What does s2(3)(b) of the 1957 Act say?

Answer 20

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.

Question 21

Which case would you use to show s2(3)(b) of the 1957 Act?

Answer 21

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.

Question 22

What are the specific defences to the 1957 Act?

Answer 22

-Exclusion clauses
-Warnings
-Work done by independent contractors

Question 23

How does the defence of an exclusion clause work?

Answer 23

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.

Question 24

How does the defence of warnings work?

Answer 24

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.

Question 25

In which case was the warning given inadequate?

Answer 25

Rae v Mars. The room was too dark to read the warning and so didn’t enable C to be reasonable safe.

Question 26

How does the defence of work done by independent contractors work?

Answer 26

S2(4)(b) says the occupier is not at fault for the work of an independent contractor if
-It was reasonable for the occupier to give the work to an independent contractor
-D made sure the contractor hired was competent to carry out the task
-The occupier must check the work has been done properly

Question 27

Which case would you use for the first element of work done by independent contractors?

Answer 27

Haseldine v Daw- given the highly specialist nature of the work, it was reasonable to give it to a specialist firm rather than D doing the work themselves.

Question 28

Which case would you use for the second element of work done by independent contractors?

Answer 28

Bottomley v Todmorden Cricket Club- the contractors were clearly not competent because of the way the stunts were performed and the fact they couldn’t get insurance so the defence failed.

Question 29

Which case would you use for the third element of work done by independent contractors?

Answer 29

Woodward v The Mayor of Hastings- it would have been very easy to check the work and it would have been clear that the danger still existed.
However, it may not be reasonable for D to inspect the work if the work requires specialist or technical skills to check.

Question 30

What remedies are available under the OLA 1957?

Answer 30

The occupier can be ordered to pay damages for death or personal injuries or property damage (for lawful visitors only).

Question 31

Why was Parliament forced to introduce the Occupiers’ Liability Act 1984?

Answer 31

The House of Lords said that a duty of ‘common humanity’ was owed to trespassers in Herrington v BRB (which overruled Addie v Dumbreck) which was quite vague and ill defined. Parliament then introduced the Act to make this area of law clearer.

Question 32

When does the OLA 1984 apply?

Answer 32

S1(1)(a) says that it applies to those other than lawful visitors for injury on the premises by reason of any danger due to the state of the premises or things done or omitted to be done on them.

Question 33

What are the first three elements of OLA 1984?

Answer 33

Same as for the 1957 Act i.e. occupier, premises and visitor.

Question 34

What does s1(3) of the OLA 1984 cover?

Answer 34

When a duty of care is owed. There are three elements that must be passed.

Question 35

What does s1(3)(a) of the OLA 1984 say?

Answer 35

D must be aware of the danger or has reasonable grounds to believe it exists.

Question 36

Which case is an example of s1(3)(a) of the OLA 1984?

Answer 36

Rhind v Astbury Water Park- D was not liable as they didn’t know the object was there, meaning no duty was owed.

Question 37

What does s1(3)(b) of the OLA 1984 say?

Answer 37

D must know or have reasonable grounds to believe that the trespasser is in vicinity of the danger or that he may come into the vicinity of the danger. The occupier will not be liable if he had no reason to suspect the presence of a trespasser.

Question 38

Which case is an example of s1(3)(b) of the OLA 1984?

Answer 38

Higgs v Foster- D was not liable because they couldn’t have anticipated the officer’s presence there or in the vicinity of the pit.

Question 39

What does s1(3)(c) of the OLA 1984 say?

Answer 39

The risk must be one against which the occupier may be expected to offer the trespasser some protection. The occupier will not be liable if the trespasser is injured by an obvious danger, as he shouldn’t be expected to keep people safe from things they can keep safe from themselves.

Question 40

Which case is an example of s1(3)(c) of the OLA 1984?

Answer 40

Tomlinson v Congleton Borough Council- the court said that where the risk is obvious, D needed to take very little precautions to ensure C’s safety.

Question 41

What is the duty owed under the OLA 1984?

Answer 41

s1(4) says the occupier has a duty to take such care as is reasonable in the circumstances to see that the trespasser is not injured by reason of the danger.

Question 42

How do you decide if D acted reasonably under the OLA 1984?

Answer 42

Use the risk factors from negligence (without cases).

Question 43

What is the rule for child trespassers under the OLA 1984?

Answer 43

Keown v Coventry- the same rules apply to child trespassers as they do to adult trespassers, the duty owed does not change.

Question 44

What does s1(5) of the OLA 1984 say?

Answer 44

If D can show he has taken such steps as are reasonable in the circumstances to give a warning of the danger, or to discourage trespassers from taking the risk, this will be a complete defence.

Question 45

Which case is an example of the warning defence of the 1984 Act working?

Answer 45

Westwood v Post Office- the sign was clear enough to discourage unauthorised people from entering so D was not liable.

Question 46

What remedies can C claim under the OLA 1984?

Answer 46

s1(8) says the occupier can be ordered to pay damages for death or personal injuries but not property damage.

Question 47

What is eval point no1?

Answer 47

The duty for lawful visitors is an objective one; D always owes a duty to keep D reasonably sage, It does not matter if D knew of the danger. Whereas the duty of trespassers is subjective, as D must know of the danger and know of the trespasser (or a risk of these). This is positive as it ensures protection for lawful visitors, and only punished D for a failure to protect trespassers in limited situations- which seems to create justice. However, the subjective test for trespassers is inconsistent with other torts such as negligence, and means each trespasser case will be decided on its own facts, creating potential uncertainty and confusion.

Question 48

What is eval point no2?

Answer 48

The OLA 57 offers extra protection to children if they are lawful visitors. Whereas the OLA 84 offers no extra protection to child trespassers. This is positive because children are more likely to be harmed, so D should make his premises safer if he knows they are going to be on land. However, children are the most likely to trespass for ‘innocent’ reasons, whereas adults may have more sinister motives to trespass. Furthermore, children are less likely to recognise obvious dangers than adults, making them more likely to be injured but les likely to be protected.

Question 49

What is eval point no3?

Answer 49

In recent years, Judges have encouraged C’s to take more responsibility for themselves rather than suing occupiers, like in Tomlinson v Congleton and Dean v Debelle. This is positive because it encourages people to keep themselves safe, makes sure occupiers do not have an unreasonable responsibility to keep their land safe from all dangers, and potentially reduces the number of future claims. However, the very purpose of the 2 acts are to make sure occupiers keep their land safe from danger, and the courts being reluctant to allow claims may lead to occupiers lowering their standards of safety, which goes against parliaments wishes and their supremacy

Question 50

What is eval point no4?

Answer 50

The occupiers liability act doesn’t define many key terms and so judges have had to interpret these. For instance, Wheat v Bacon defines occupiers, and s1(3)(a) OLA 57 only gives examples of premises rather than strictly defining it. This is positive because it allows judges to be flexible when making decisions rather than having to make an absurd decision based on a limited definition. It also allows for the law to change and update over time rather than being time locked. However, if the definitions keep changing, this can create uncertainty in the law and it may be hard for people to prepare properly in their trial. Furthermore, judges may interpret occupiers/premises in a way parliament would not have really wanted, undermining their intent.