Occupiers’ liability Flashcards
A solicitor’s client is an elderly woman who lives a supervised living facility for elderly people with mobility issues.
Next to the facility is a fish & chip shop run by a couple and their adult son (the Owner).
Residents at the facility form a large part of the shop customers and your client is a regular on Fridays when the shop is extremely busy. The floor of the shop is covered by old linoleum tiles.
The recent weather has been non-stop heavy rain.
Last Friday, another rainy day, the solicitor’s client entered the shop for her usual order when she slipped on the wet floor and broke her hip.
The Owner stated that all three of them were busy dealing with customers and could not both serve and mop the floor being such a small business.
They were planning on installing non-slip tiles when their income would permit but had not been able to afford it yet.
Which of the following statements best describes a court’s approach to breach of duty by the Owner?
A-The Owner’s standard of care will be compared to that of the reasonable shop owner with the same financial ability. Since the cost of taking precaution was too high, the owner would not be found to be in breach.
B-The Owner’s standard of care will be compared to that of the reasonable shop owner in the circumstances. Since the circumstances were that the floor was slippery floor because of a natural occurrence, the Owner would not be found to be in breach.
C-The Owner’s standard of care will be compared to that of the reasonable shop owner in the circumstances. Since the circumstances were that there was an obviously foreseeable risk of harm to an elderly person, the Owner would be found to be in breach.
D-The Owner’s standard of care will be compared to that of the reasonable shop owner in the circumstances. Since in the circumstances there was a foreseeable risk of serious harm the cost of taking precautions does not prevent the Owner from being in breach.
E-The Owner’s standard of care will be compared to that of the reasonable shop owner in the circumstances. Since the fish & chip shop has great social value to the locals, the Owner would not be found to be in breach.
Option D is the correct answer. The court will balance the factors and since the risk of the accident was high (Bolton v Stone) and the seriousness of the harm was potentially serious due to the cross-section of customers (Paris v Stepney BC), lack of financial means does not preclude breach. Unlike in Latimer v AEC Ltd, the defendant did not take all reasonable precautions. Here at the very least, regular mopping should have occurred regardless of how busy the shop was.
Option A is wrong because financial ability is considered as part of the circumstances to weigh the risks involved, not as a feature of the reasonable person.
Option B is wrong because the reason for the risk here was failure to keep the floor dry and not the rainfall.
Option C is wrong because likelihood of harm is only one of the factors to be considered alongside others.
Option E is wrong because the social value relates to the nature of the risk taken not to the nature of the business or activities in which the defendant engages.
A beautiful old castle is open to the public during the day. A burglar climbed the wall of the castle at night with a view to stealing priceless jewellery that is on display in one of the castle’s state rooms during the day. The occupier of the castle had installed an electrified wire at the top of the wall with a view to keeping burglars out of his premises. This wire was not visible at ground level. When the burglar made contact with the wire he fell and suffered a broken back.
Which of the following is the best argument the occupier of the castle could rely on as a defence to any claim the burglar could make for his broken back?
A-The burglar was injured during the course of attempting to commit a criminal act.
B-The burglar was injured at a time when the castle was closed to visitors.
C-In climbing the wall, the burglar had consented to the risk of personal injury.
D-In fitting the electrified wire, the occupier of the castle had put in place a barrier to discourage non-visitors from entering his premises.
E-In climbing the castle wall the burglar was behaving carelessly and this carelessness contributed to his broken back.
Option E is correct because s1(1) of the Law Reform (Contributory Negligence) Act 1945 provides that “Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage:” Under the same Act, s4 provides that ““fault” means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.”
Option A is not the best answer as a duty under the Occupiers’ Liability Act 1984 can extend to a non-visitor who is committing a criminal act. Also the occupier cannot use the defence of illegality because in Revill v Newbery [1996] 2 WLR 239 the Court of Appeal took the view that it would thwart Parliament’s intention if the defence of illegality were to be available in relation to liability under the OLA 1984.
Option B is not the best answer because this is irrelevant. The question concerns a non-visitor.
Option C is not the best answer as in order for the defence to work, the claimant must be fully aware of the risk posed. As the wire was not visible at ground level, the burglar would have had no knowledge of its existence until it was too late.
Option D is not the best answer as this is not a defence under the OLA 1984. It is instead a way in which the occupier may be able to discharge their duty under the Act. Also, this was a dangerous and invisible discouragement.
A customer parked in a supermarket car park. The car park displayed a notice explaining that renovation work was being carried out to the exterior of the building and that the supermarket would incur no liability for any injury or damage caused. As the customer was getting out of their car, scaffolding from the supermarket roof fell, damaging the windshield of their car and severely injuring the customer. The supermarket is seeking to rely on the notice and exclude their liability to the customer.
Which of the following statements best describes the supermarket’s attempt to exclude liability in this situation?
A-The supermarket will be able to exclude liability for both the customer’s personal injury and the damage to their car, providing the notice is held to be fair.
B-The supermarket will be able to exclude liability for both the customer’s personal injury and the damage to their car, providing it is reasonable in all the circumstances for the supermarket to rely on the exclusion notice.
C-The supermarket will be unable to exclude liability for the customer’s personal injury. They may be able to exclude liability for the damage to the car, providing the notice is held to be fair.
D-The supermarket will be unable to exclude liability for the customer’s personal injury. They may be able to exclude liability for the damage to the car, providing it is reasonable in all the circumstances for the supermarket to rely on the exclusion notice.
E-The supermarket will be unable to exclude liability for the customer’s personal injury. They may be able to exclude liability for the damage to the car, providing the injury and damage suffered are reasonably foreseeable.
Option C is the best answer because traders will be subject to the controls under the Consumer Rights Act 2015 and are unable to exclude liability for a consumer visitor’s personal injury. They may be able to exclude liability for other losses (the damage to the car), providing the notice is held to be fair under s62 of the Act.
Option A is wrong because whilst traders can exclude liability for other loss (the damage to the car), they are unable to exclude liability for a consumer visitor’s personal injury (under the Consumer Rights Act 2015).
Option B is wrong because the answer refers to the test of reasonableness, which is a consideration under the Unfair Contract Terms Act rather than the Consumer Rights Act 2015 (which would apply here). Further, whilst traders can exclude liability for other loss (the damage to the car), they are unable to exclude liability for a consumer visitor’s personal injury (under the Consumer Rights Act 2015).
Option D is wrong because whilst it has some merit as to what can and cannot be excluded, it refers to the reasonableness test (under the Unfair Contract Terms Act) rather than the test of fairness (under the Consumer Rights Act 2015).
Option E is wrong because it refers to a test of foreseeability.
A solicitor is instructed by a client who is claiming damages for her broken leg which she suffered when she recently attended an art gallery. The client had purchased a ticket to enter the gallery. Whilst at the gallery the client walked through a hallway having read the notice at the entrance door of the hallway which said “Beware, uneven floor tiles”. The client broke her leg when she tripped over an uneven floor tile in the hallway.
Does the occupier of the art gallery owe a duty of care to the client in respect of her injuries?
A-Yes, because the occupier is aware of the danger, knew that others might come within the vicinity of the danger and the risk of injury is one they ought reasonably to have offered protection against.
B-Yes, because under statute a duty of care is owed by occupiers to visitors of their premises to ensure their visitors are reasonably safe.
C-No, because the client knew of the danger and voluntarily agreed to the risk of injury when she entered the hallway.
D-No, because the client has suffered injuries as a result of her own activity rather than because of the state of the premises.
E-No, because the warning of the danger at the entrance of the hallway enabled the visitor to be reasonably safe.
Option B is correct. Under the Occupiers’ Liability Act 1957 the occupier of premises owes a duty of care to their visitors to ensure they are reasonably safe. Here the client is a visitor as she had express permission to enter the gallery when she purchased a ticket.
Option A is wrong. These are the requirements that need to be satisfied to establish a duty of care is owed by an occupier to a non-visitor to their premises. On the facts the client is a visitor.
Option C is wrong. These requirements need to be established for the defence of volenti to apply whereas the question is asking about duty of care,
Option D is wrong because on the facts the client has suffered injuries as a result of the state of the premises ie the uneven floor tiles rather than as a result of their own activity.
Option E is wrong because the warning is relevant to the issue of breach of duty of care whereas the question is asking about the existence of the duty of care.
Which of the following are the conditions which give rise to a duty of care under the Occupiers’ Liability Act 1984?
The occupier must: be aware or have reasonable grounds to believe the danger exists;
Know or have reasonable grounds to believe that the trespasser is in or may come into the vicinity of danger;
Be reasonably expected to offer the trespasser some protection against the risk
What best describes whether an occupier owes a duty of care to a burglar for injuries the burglar may suffer due to the state of the occupier’s premises?
The occupier may owe a duty of care depending upon all the circumstances of the case.
D is the correct answer. Whether an occupier owes a duty of care to a trespasser depends upon all the circumstances of the case (as set out in s.1 (3) OLA 1984). A is therefore wrong.
Does the Occupiers liability act cover trespassers damaged property?
C is the correct answer. The boy was injured due to the state of the cinema premises. By entering into Screen 2 the boy exceeding his permission to be in the cinema and became a trespasser. The cinema as an occupier will only owe a duty of care to trespassers under the Occupiers’ Liability Act 1984 (the Act) if three conditions are satisfied. The cinema are aware of the danger of people being injured due to the seat. The cinema may also be found to have reasonable grounds to believe that trespassers may be in Screen 2 because people do ‘sneak in’ to watch films that they have not paid for. The cinema would certainly be reasonably expected to offer some protection against the risk of being injured by the seat. It is likely, therefore, that the boy will be owed a duty of care. However, the duty under the Act does not cover damage to the trespassers property. D is therefore wrong.
