Occupiers Liability

Question 1

List the requirements for occupiers liability.

Answer 1

Claimant needs to:

1) establish that they have suffered a loss due to the state of the premises;
2) identify the occupier;
3) prove they are a visitor;
4) establish that the occupier failed to take reasonable care forth visitors safety.

Question 2

Define occupier for the purposes of occupiers liability.

Answer 2

Someone who has a sufficient degree of control over the premises.

Question 3

Can there be more than one occupier of a premises?

Answer 3

Yes.

Whet v E bacon - held that both the owners and the managers had sufficient control over the premises to be occupiers.

Question 4

Could an independant contractor be an occupier in relation to premises they are working on?

Answer 4

Yes.

It would depend on the degree to which they occupy whether this was sufficient to class them as an occupier.

Question 5

What is the 1957 Act?

Answer 5

Imposes duty on occupier towards their visitors.

Question 6

What is a visitor for the purposes of the 1957 Act?

Answer 6

Persons who have express or implied permission to be on the occupiers land.

This includes those who have such permission via terms of contract, or are on the land exercising a right conferred by law.

Question 7

What happens where a lawful visitor exceeds their express or implied permission to be on the land?

Answer 7

They may then lose thwprotection of the 1957 Act and fall within the 1984 act (which deals with unlawful visitors).

Question 8

What is the 1984 Act?

Answer 8

This deals with the duty owed to unlawful visitors.

Question 9

Define land for the purposes of the 1957 Act.

Answer 9

Includes open land swell as fixed or movable structures.

Specifically includes vessels, vehicles or aircraft.

Question 9

Explain the common duty of care owed by the 1957 Act.

Answer 9

The duty is to take such care that is reasonable in all of the circumstances to see tat the visitor is reasonably safe in using the premises for the purpose for which they are permitted to be there.

Question 10

What factors will be considered when deeming the ‘reasonable’ duty of care owed to visitors?

Answer 10

Specifically , the type and nature of the visitor.

Question 11

Which two groups of people are owed a different duty of care than others under the 1957?

Answer 11

1) Children;

2) Visitors exercising their skills.

Question 12

Explain the standard of the duty of care owed to children visitors.

Answer 12

Children are owed a higher duty of care from the occupier than other visitors.

Question 13

Explain the standard of care owed to experts entering the land a visitors to exercise their skills.

Answer 13

An occupier can expect them to appreciate and guard against any risks which are part and parcel of their job.

This effectively lowers the standard of care owed to skilled visitors.

Question 14

Explain the decision in Glasgow Corporation v Taylor.

Answer 14

Explained that occupiers must take precautions to warn children of allurements which could cause them danger/ harm.

In this case 7 year old boy ate berries which were poisonous. Corporation should have taken care to fence these off/ erect signs warning of the danger.

Question 15

Explain the duty of occupiers to warn of allurements in relation to children.

Answer 15

Where danger is an allurement, occupier must do even more to safeguard a child’s safety.

Question 15

Explain how parental responsibility can affect the standard of care occupiers owe to children.

Answer 15

Phipps v Rochester - boy fell into trench and broke leg.

There was no evidence the children regularly went there alone, and the occupier was entitled to assume the parents would take releasable steps to stop children going through the building site unattended.

Question 16

Explain the effect of Phipps v Rochester.

Answer 16

Occupiers will have complied with their duty to very young children if they make their premises reasonably safe for a child who is accompanied by a reasonably responsible guardian.

Question 17

What is the rule in relation to skilled visitors?

Answer 17

Occupier will not be liable if injury is caused where the visitor is carrying out work incidental to their job.

Eg window cleaner falling from a ladder whist cleaning would be something an occupier is not liable for. If they tripped on a defective staircase inside the house, occupier would be liable as this is not incidental to their job.

Question 18

Can an occupier escape liability for breach by warnings ?

Answer 18

Occupiers will not be in breach if they have provided an adequate warning as to the danger which causes the injury.

Question 18

When will an independent contractor assume liability for injury caused on the occupier’s premises which results from their faulty workmanship?

Answer 18

The burden falls to the contractor (in respect of injury arising from their work) if the occupier acted reasonably in:

1) Entrusting the work to an independent contractor;

2) Took steps they reasonably ought to in order to satisfy themselves the contractor was competent.

3) Took such steps they reasonably ought to, in order to satisfy themselves the work had been completed properly.

Question 19

What are the main facts to consider when determining whether the warning was adequate?

Answer 19

1) Nature of the warning (how specific was it - eg ‘danger slippery floor’ is more reasonable than ‘danger’).

2) Nature of the danger - was it a hidden or obvious danger. If hidden danger warning must be more specific.

3) The type of visitor - eg a written warning for a child may be insufficient, but sufficient for an adult.

Question 20

To discharge occupiers duty of care, what work does the independent contractor have to have done?

Answer 20

It doesn’t apply to all work done by independent contractors, the work must be work of construction, maintenance or repair.

Question 21

Explain what is deemed ‘reasonable steps’ to check the contractors work in order to discharge burden.

Answer 21

If the work is technical (eg a lift being serviced) the burden is discharged without the occupier even checking.

If non-technical (eg recognising an icy step being a danger) the occupier would need to take reasonable steps to check this danger had been removed properly as no technical expertise would be required to do so.

Question 22

Do the issues of causation ad remoteness of damage apply to OL?

Answer 22

Yes.

Question 23

Explain the defence of consent.

Answer 23

IF the claimant knows of the precise risk that causes the injury, and show by conduct they accepted the legal risk willingly, the defence of consent may be used.

Question 24

Explain exclusion of liability notices by occupiers.

Answer 24

1957 act permits occupier to exclude their liability if:

1) They took reasonable steps to bring exclusion notice to C’s attention before the tort was committed; and
2) The wording of the notice covered the loss suffered by the claimant.

Question 25

Explain the effect of CRA and UCTA on excursion of liability notices by occupiers.

Answer 25

Private occupies are not subject to these acts.

However where the occupier is a business or trader, they will be subject to the limitations imposed by UCTA and CRA. This means businesses/ traders cannot exclude liability for death or PI.

Question 26

To whom is a duty owed under the 1984 Act?

Answer 26

To people other than visitors.

Effectively, to people that do not have any express or implied permission to be on the premises.

Question 27

Does it make any difference whether the trespasser knows they are trespassing?

Answer 27

No.

Question 28

Explain the requirements for a sure to trespassers to exist under the 1984 Act.

Answer 28

Occupier must:

1) Be aware of the danger or have reasonable grounds to believe it exists;

2) Know or have releasable grounds to believe the trespasser in in the vicinity of the danger; and

3) Be reasonably expected to offer the other some protection against the risk (considering all of the circumstances of the case).

Question 28

Which three categories of people are also covered by the 1984 act (other than trespassers)?

Answer 28

1) People entering under an access arrangement or oder under National Parks Access to the countryside Act 1949;

2) People entering land pursuant to the Countryside and Rights of Way Act 2000; and

3) People exercising private rights of way over land.

Question 29

Explain the limitation which exists from Tomlinson v Congleton Borough Council.

Answer 29

C dived into shallow lake and was injured.

The council placed notices advising not to do so, and had striated leaflets warning of the dangers.

Claim failed as this risk was extremely obvious and the injury was caused as a result of the claimant’s own conduct.

Question 29

Explain the requirement that the occupier must have reasonable grounds to believe the danger exists.

Answer 29

This requires a dual knowledge of the facts which would lead to a reasonable occupier being aware of the danger or the presence of the trespasser.

Question 30

What factors to the courts consider to determine whether it is reasonable to expect the occupier to have offered the trespasser some protection?

Answer 30

Nature and extent of the risk - depends on the risk and whether it is an obvious or hidden danger.

Type of trespasser - this requirement is more likely satisfied where the trespasser is a child or an inadvertent trespasser (as opposed to deliberate and maliciously trespassing).

Cost and practicality of the precautions - if cost is low to remove or reduce the risk, this may mean court find it reasonable the occupier should have done so.

Question 31

Does the 1984 act cover damage to a trespasser’s property?

Answer 31

No.

Question 32

What is a discouragement to protect trespassers from danger?

Answer 32

Occupier should put a barrier or obstacle round the danger as a preventative measure where a mere warning could be deemed inadequate.

Question 32

Explain the defence of illegality in relation to the 1984 Act.

Answer 32

If trespasser is injured in their attempt to commit a serious crime, the defence of illegality will apply and prevent that trespasser from remedies.