Occupiers' Liability

Question 1

Which of the following is correct in relation to defining an ‘occupier’ under the OLA 1957?

(a) 
The common law defines an occupier as a person who owns the premises.

(b) The common law defines an occupier as a person who occupies the premises.

(c) 
Section 1(2) OLA 1957 defines an occupier as a person who has a sufficient degree of control over the premises.

(d) Section 1(2) OLA 1957 defines an occupier as a person who occupies the premises.

(e) 
The common law defines an occupier as a person who has a sufficient degree of control over the premises.

Answer 1

(e) 
The common law defines an occupier as a person who has a sufficient degree of control over the premises.

Section 1(2) OLA 1957 does not explicitly define an occupier for the purposes of the OLA 1957, but does refer us to the common law definition. The common law definition is a person who has a sufficient degree of control over the premises

Question 2

During working hours, a building contractor is injured on the occupier’s premises when he falls down a steep staircase with no handrail. Which of the following is correct in explaining why the contractor is a visitor?

(a) 
Under s.2(6) OLA 1957 he has lawful authority to be on the premises.

(b) 
He has express and contractual permission to be on the premises.
(c) 
He has implied permission to use the stairs.

(d) 
He has express permission to be on the premises.

(e) 
He has contractual permission to be on the premises.

Answer 2

(b) 
He has express and contractual permission to be on the premises.

The contractor has been invited onto the occupier’s premises and will have entered into a contract with the occupier to carry out the building work.


Question 3

A university student, Jessica, visits a castle that is open to the public. There is a small sign at the entrance of the castle which, amongst other conditions, informs visitors that they must not enter the outhouse at the very back of the castle grounds. Jessica does not see the sign. She enters the outhouse and twists her ankle on some very uneven paving slabs. Which of the following statements is correct?

(a) 
Jessica will not be classed as a visitor as she did not have permission to enter the outhouse.

(b) 
Jessica will be classed as a visitor as she had implied permission to enter the outhouse.

(c) 
Jessica will be classed as a visitor as she had not seen the sign denying access to the premises.

(d) 
Jessica will be classed as a visitor as she had lawful authority to enter the outhouse.

(e) 
Jessica will be classed as a visitor as she had express permission to be on the premises.

Answer 3

(e) 
Jessica will be classed as a visitor as she had express permission to be on the premises.

Jessica has express permission to visit the castle which is open to the public. The castle has not gone far enough to restrict her permission by area and turn her status into that of a trespasser when she entered the outhouse. The sign was very small containing lots of other information and does not appear to be located near the outhouse itself.


Question 4

A nine year old boy is at a playground with his mother. The playground is owned by the local authority. The boy falls over and cuts his knee badly on glass from a broken bottle. His mother was not watching him at the time. Which of the following is correct under the OLA 1957?

(a) 
The local authority owes the boy a higher standard of care than adult visitors, but it is unlikely to have breached its duty as the boy’s mother should have been supervising him.

(b) 
The local authority owes the boy a higher standard of care than adult visitors and it is likely to be in breach as the boy has been injured.

(c) 
The local authority owes the boy the same standard of care as adult visitors. They are not in breach as an adult would have seen the broken bottle.

(d) 
The local authority owes the boy a higher standard of care than adult visitors and it is likely to be in breach of duty given the playground is an area commonly used by children. 

(e) 
The local authority owes the boy a higher standard of care than adult visitors but it is unlikely to be in breach of duty as it is not their fault someone left a broken bottle at the playground.

Answer 4

(d) 
The local authority owes the boy a higher standard of care than adult visitors and it is likely to be in breach of duty given the playground is an area commonly used by children.

Under s.2(3)(a) OLA 1957 occupiers owe children a higher standard of care. There is likely to be a breach here as the local authority should have got rid of the broken bottle. Children will regularly be in the area, so it is important to take extra precautions in order to keep the premises reasonably safe.


Question 5

Dushal is a professional electrician. He is working at a wealthy client’s house when the wooden stairs give way. He falls and suffers serious injuries. The client thought the stairs required some maintenance work.
Which of the following is correct under the OLA 1957?

(a) 
Dushal is owed a lower standard of care than the ordinary visitor as he is a person entering in the exercise of a calling. However, the client is likely to be in breach of duty as the risk of the stairs collapsing was not a risk incidental to being an electrician.

(b) 
Dushal is owed a higher standard of care than the ordinary visitor as he is a professional visitor. It is likely that the client is in breach of duty.

(c) 
Dushal is owed a lower standard of care than the ordinary visitor as he is a person entering in the exercise of a calling. It is therefore unlikely the client is in breach of duty as Dushal should have protected against all risks.

(d) Dushal is owed the same standard of care as any ordinary visitor. It is likely that the client is in breach of duty.
(e) 
Dushal is owed the same standard of care as an ordinary visitor. It is unlikely that the client is in breach of duty as it is known that stairs can be dangerous.


Answer 5

(d) Dushal is owed the same standard of care as any ordinary visitor. It is likely that the client is in breach of duty.

Dushal will be owed the standard of care under s.2(2) OLA 1957. Although he is a person entering in exercise of a calling, a lower standard is only owed in relation to risks incidental to the person’s trade/job. The risk of stairs collapsing is not a risk incidental to being an electrician. The occupier is likely to be in breach if the stairs were unsafe: he knew the stairs required maintenance and had the money to repair them.


Question 6

An occupier of premises puts up a large sign on their electrical fence saying “Danger. Electrical fence. Do not touch.” A visitor touches the fence and is electrocuted. Which of the following is correct under the OLA 1957?

(a) 
The occupier has discharged their duty of care to the visitor as the warning was enough to ensure the premises were reasonably safe (s.2(4)(a) OLA 1957).

(b) 
The occupier has discharged their duty of care to the visitor as they have warned of the danger concerned (s.2(4)(a) OLA 1957).

(c) The occupier has discharged their duty of care to the visitor as the warning was enough to enable the visitor to be reasonably safe (s.2(4)(a) OLA 1957).
(d) 
The occupier has discharged their duty of care to the visitor as the warning is in writing (s.2(4)(a) OLA 1957).

(e) 
The occupier has discharged their duty of care to the visitor as the danger was an obvious danger (s.2(4)(a) OLA 1957).

Answer 6

(c) The occupier has discharged their duty of care to the visitor as the warning was enough to enable the visitor to be reasonably safe (s.2(4)(a) OLA 1957).

Under s.2(4)(a) OLA 1957 the occupier discharges the duty of care owed to a visitor if they warn the visitor of the danger concerned, and the warning is enough to enable the visitor to be reasonably safe. Case law suggests that this means informing the visitor of what the danger is, where it is and how to avoid this. The occupier’s warning (“Danger. Electrical fence. Do not touch.”) does this.


Question 7

A university student is temporarily banned from the university premises. He enters the premises to meet some of his friends at the student bar. When he is leaving, he falls down a steep staircase which has no handrail or lighting. He breaks his neck and is left paralysed.
Which of the following is correct under the OLA 1984?


(a) The student will not be owed a duty of care by the university as he was banned from the university premises.

(b) 
The student will not be owed a duty of care by the university as his injuries were caused by his activity on the premises, rather than the state of the premises themselves.

(c) 
The student will be owed a duty of care by the university if they were aware of the danger, knew that someone would be in the vicinity of the danger, and the risk was one against which the university ought to offer protection.

(d) 
The student will be owed a duty of care by the university if they were aware of the danger and knew the claimant would be in the vicinity of the danger.

(e) 
The student will not be owed a duty of care by the university as he has suffered personal injury.

Answer 7

(c) 
The student will be owed a duty of care by the university if they were aware of the danger, knew that someone would be in the vicinity of the danger, and the risk was one against which the university ought to offer protection.


Question 8

Following on from question one, the university had erected a temporary barrier to try and prevent students using the staircase. The student had difficulty climbing over the barrier to get to the staircase. Which of the following is correct under the OLA 1984?


(a) A physical barrier is likely to be a sufficient warning under the OLA 1984.
(b) 
A physical barrier is not a sufficient warning under the OLA 1984 especially as the student was able to climb over it.

(c) The university do not need to warn trespassers of any dangers.

(d) 
A physical barrier is not sufficient for the purpose of warning of a danger under the OLA 1984. There should have been a written sign accompanying the barrier denying access.

(e) 
A physical barrier is not sufficient for the purpose of warning of a danger under the OLA 1984. A sufficient warning must make it clear what the danger is, where it is and how to avoid it.

Answer 8

(a) A physical barrier is likely to be a sufficient warning under the OLA 1984.

It is easier for the occupier to discharge their duty under the OLA 1984 than the OLA 1957. Under s.1(5) OLA 1984 the occupier will discharge their duty of care if they have warned the trespasser of the danger or discouraged persons from incurring the risk. The physical barrier is likely to be enough to discourage persons from incurring the risk, as it was in the case of Titchener v British Railway Board.


Question 9

A defendant can argue the following defences in response to a claim under the OLA 1984:

(a) 
Consent and illegality.

(b) 
Consent, contributory negligence and illegality.

(c) 
Contributory negligence and illegality.

(d) 
Necessity and consent.

(e) 
Consent and contributory negligence.

Answer 9

(b) 
Consent, contributory negligence and illegality.


Question 10

A client would like advice on whether they can exclude their liability under the OLA 1957. The client owns a small sweet shop and wants to protect themselves against claims from customers who injure themselves on their premises.
Which of the following is correct?

(a) 
The exclusion notice will be subject to UCTA 1977. The client cannot exclude liability for any personal injury caused by their negligence but can for other types of loss if the notice is reasonable.

(b) 
The exclusion notice will be subject to the CRA 2015. The client cannot exclude liability for any personal injury caused by their negligence but can for other types of loss if the notice is considered fair.
(c) 
The exclusion notice will be subject to common law restrictions. The client can exclude liability for any type of loss if it is considered reasonable to do so.

(d) 
The exclusion notice will be subject to the CRA 2015. The client can exclude liability for any type of loss provided the consumer notice is considered fair.

(e) 
The exclusion notice will be subject to UCTA 1977. The client can exclude liability for any type of loss provided the consumer notice is considered reasonable.

Answer 10

(b) 
The exclusion notice will be subject to the CRA 2015. The client cannot exclude liability for any personal injury caused by their negligence but can for other types of loss if the notice is considered fair.

The customers would be consumers and the client would be a trader. The CRA 2015 would therefore apply to any consumer notice. Section 65(1) CRA 2015 says that a trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence (this includes a breach under the OLA 1957).In respect of damage other than death or personal injury, an unfair notice is not binding on the consumer (s.62(2) CRA 2015).


Question 11

Which of the following statements is correct?

(a) 
Under the OLA 1984, exclusion/limitation clauses can be subject to section 3 OLA 1957; UCTA 1977; CRA 2015; or common law restrictions.

(b) 
Under the OLA 1957, exclusion/limitation clauses can be subject to section 3 OLA 1957; UCTA 1977; CRA 2015; or common law restrictions. Under the OLA 1984, exclusion/limitation clauses can be subject to UCTA 1977; CRA 2015; or common law restrictions.

(c) 
Under the OLA 1957 and OLA 1984, exclusion/limitation clauses can be subject to UCTA 1977; CRA 2015; or common law restrictions.

(d) 
Under the OLA 1957 and the OLA 1984, exclusion/limitation clauses can be subject to section 3 OLA 1957; UCTA 1977; CRA 2015; or common law restrictions.

(e) Under the OLA 1957, exclusion/limitation clauses can be subject to section 3 OLA 1957; UCTA 1977; CRA 2015; or common law restrictions.

Answer 11

(e) Under the OLA 1957, exclusion/limitation clauses can be subject to section 3 OLA 1957; UCTA 1977; CRA 2015; or common law restrictions.

Question 12

A householder invites friends over for lunch. They are having a tennis court built on their property and have erected a sign at the entrance to their property reading “Tennis court under construction on this property and the construction site is dangerous. Under no circumstances will the occupier be liable for any injury caused to those on/near the construction site.” One of the householder’s friends decides to look at the tennis court. The friend’s heel gets stuck in wet clay, causing them to fall. They break their ankle and wrist. The friend sues the householder for breach of duty under the Occupiers’ Liability Act 1957.
Which of the following statements is correct?

(a) 
The sign is an exclusion notice and may operate as a potential defence to the claim. The exclusion notice will not be subject to UCTA 1977 or the CRA 2015.
(b) 
The sign is an exclusion notice but will be subject to the CRA 2015, so the householder is unable to exclude liability for personal injury.

(c) 
The sign is an exclusion notice but will be subject to the UCTA 1977, so the householder is unable to exclude liability for personal injury.

(d) 
The sign is an exclusion notice but will be subject to section 3 OLA 1957, so the householder is unable to exclude or restrict the duty of care that they owe their friend.

(e) 
The sign is an exclusion notice but will be subject to the UCTA 1977 and the CRA 2015, so the householder is unable to exclude liability for personal injury.

Answer 12

(a) 
The sign is an exclusion notice and may operate as a potential defence to the claim. The exclusion notice will not be subject to UCTA 1977 or the CRA 2015.

The householder is a private occupier, so not occupying the premises for business purposes or acting as a trader. The exclusion notice may be subject to the common law restrictions but seems unlikely to succeed here, although further information needed.


Question 13

What does OLA 1957 govern?

Answer 13

Duty owed by occupiers to visitors

Question 14

What duty of care does an occupier owe to visitors and what are the obligations under it?

Answer 14

Common duty of care: duty to take such care as is reasonable in all circumstances to see that visitor will be reasonably safe in using premises for purposes for which they were permitted by occupier to be there

Duty is to keep visitor reasonably safe rather than premises

Question 15

For what loss can visitor claim under OLA 1957?

Answer 15

1. Personal injury
2. Property damage

Question 16

What is the definition of an occupier?

Answer 16

Occupier = someone who has sufficient degree of control over premises - in all cases question of fact

Test is one of control, so someone who is not owner can still be occupier

4 categories:
1. If landlord does not live on property, tenant is occupier
2. If landlord retains some parts of premises, eg common areas like stairways, they are occupier of those parts
3. If landlord issues licence, they remain occupier and
4. If occupier employs independent contractor, they generally remain responsible

Question 17

Can you have multiple occupiers?

Answer 17

Yes

May be more than one occupier - not necessary for occupier to have entire control over premises or exclusive occupation, sufficient to have some degree of control which they may share with others

Different occupiers may have responsibility for different parts of premises or different dangers - C may be visitor to one occupier and trespasser to another

Question 18

What is the definition of premises?

Answer 18

‘Any movable structure, including any vessel, vehicle or aircraft’

Wheeler v Copas: included ladder

Question 19

What is the definition of a visitor?

Answer 19

‘Persons who are to be treated as visitors are the same as the persons who would at common law be treated as invitees and licensees’

Includes those with express permission - however this may be limited by:
1. Area
2. Time
3. Purpose

Includes those with implied permission which exists bc of occupier’s behaviour eg postman - can be limited by notice

Includes those with lawful authority - s. 2(6): some persons eg police officers with warrant or persons with statutory right eg gas board officials, can enter premises as lawful visitors with or without contractual permission

Includes those with contractual permission - s. 5(1): if person enters premises under terms of contract with occupier, there is, in absence of express provision to contrary, implied term that entrant is owed common duty of care

Question 20

Are those with public/private rights of way covered by OLAs?

Answer 20

Those using public right of way eg footpath are not covered by OLAs and are reliant on common law

However, those using private right of way are covered by OLA 1984

Question 21

What is the standard of care under OLA 1957?

Answer 21

Standard is therefore that of reasonable occupier and that is objective test

Visitor might have personal characteristics which affect standard of care owed - where occupier is aware of vulnerability of visitor, they can reasonably be expected to take steps to guard against it

Two exceptions
1. Child visitors owed higher standard of care under OLA 1957
2. Persons entering premises in exercising of their calling (to exercise their skills) are owed lower standard of care under OLA 1957 - Occupier can reasonably expect such persons to appreciate and guard against any risks ordinarily incidental to it ie to their job

Question 22

What is the test to assess whether D has fallen below standard of care?

Answer 22

Test is same used in negligence claim eg likelihood of harm, magnitude of harm, social value of activity which gives rise to risk and cost of preventative measures - factors balanced against one another

Courts will take into account resources available to occupier when considering what reasonable steps might have been taken

Question 23

When can you discharge duty through a warning as an occupier?

Answer 23

Where there is adequate warning, written, visual or oral, occupier may have discharged duty

Warning should make visitor aware of:
1. What the danger is
2. Where it is
3. How to avoid it

This will be question of fact - will depend upon what particular danger was and upon scope, content and form of warning

Possible that notice may have dual effect - it can potentially satisfy occupier’s duty by giving C warning but it may also act was exclusion notice - would then have to conducer both potential effects

Question 24

Can you discharge duty through an independent contractor?

Answer 24

General rule: duty owed by occupier to visitor is non-delegable

However, where building, construction, repair or renovation is carried out by independent contractor, and C suffers loss as result of fault of contractor, occupier may escaper liability if they satisfy three requirements:
1. Must be shown that it was reasonable to use independent contractor
2. Was it reasonable to choose independent contractor in question eg checked qualifications, experiences, references, made enquiries locally and of Trade Associations?
3. Supervising and checking work was properly done - occupier can only do what is reasonable

Question 25

How does causation and remoteness affect OLAs?

Answer 25

Nothing under 1957 setting out how causation or remoteness should be tackled

Once loss has been suffered by C and once D has breached duty to that C, then there’s assumption that causation and remoteness have been satisfied

Courts have only tended to discuss causation and remoteness where there are glaring issues with either

Question 26

What defences are available under OLA 1957?

Answer 26

1. Volenti/consent: C must be fully aware of particular risk and through their conduct willingly accept risk
2. Contributory negligence: In determining common duty of care, degree of care and of want of care which would be ordinarily be looked for in such visitor is taken into account
3. Illegality

Question 27

What does OLA 1984 govern?

Answer 27

Duty owed by occupiers to non-visitors

Question 28

What loss is recoverable under OLA 1984?

Answer 28

Occupier is only liable for physical injury

Question 29

True or false: the definition of occupier and premises under OLAs are different.

Answer 29

False - they are the same.

Question 30

What is the definition of a non-visitor?

Answer 30

He who goes on to land without invitation of any sort and whose presence is either unknown to proprietor or, if known, is practically objected to

Question 31

Is the duty of care owed to non-visitors automatic?

Answer 31

There is no automatic duty here owed by occupier to non-visitor

Question 32

What is the three stage test to establish DOC to non-visitors?

Answer 32

1. They are aware of danger or have reasonable grounds to believe that it exists (Reasonable grounds requires actual knowledge of facts which would lead to reasonable occupier to be aware of danger)
2. They know or have reasonable grounds to believe that other is in vicinity of danger concerned or that they may come into vicinity of danger (whether other has lawful authority for being in vicinity or not) - the relevant time for this is time of accident
3. Risk is one against which, in all circumstances, they may reasonably be expected to offer other some protection (Balancing costs of occupier to make premises safer against foreseeability and seriousness of injury)

Question 33

What is the standard of care under OLA 1984 and what factors will court consider for breach?

Answer 33

Standard of care is that of reasonable occupier

Courts will weigh up negligence breach factors - other factors that may be relevant are:
1. Nature of danger (obvious or hidden)
2. Whether C adult or child
3. Nature of premisses (how dangerous were they eg building site)
4. Purpose of C (was C burglar or trespassing by accident)
5. Whether occupier could or should have foreseen trespassing (eg where occupiers aware that people were trespassing and if so, what measures were taken to prevent this? More likely the trespass was, the more precautions should have been taken)

Question 34

Can warning notices discharge duty under OLA 1984?

Answer 34

Provides that duty may be satisfied if occupier takes all reasonable steps to give warning of danger concerned or to discourage persons from incurring risk

Easier to satisfy here than under 1957

Notice will satisfy occupier’s duty if it sufficiently discourages C from trespassing - will be harder to discharge duty with notice where C is child as they may be too young to read or fully appreciate danger

Question 35

What are the defences available under OLA 1984?

Answer 35

1. Volenti/consent
2. Contributory negligence
3. Illegality

Question 36

Can you use exclusion or limitation clauses under OLA 1957?

Answer 36

Allows occupier, in so far as they are free to do so, extend, restrict, modify or exclude their duty to visitors

However there are 4 restrictions:
1. s. 3 OLA 1957: States that occupier cannot, by contract, exclude or restrict common law DOC which they owe to TP. Where occupier is bound by contract to allow people who are strangers to contract to enter or use premises, DOC that occupier owes to those strangers as visitors cannot be excluded or restricted by contract.

2. UCTA 1977: business to business - Person cannot exclude/restrict their liability for death or personal injury resulting from negligence. In relation to other loss: person can exclude/restrict liability for negligence if term/notice satisfies requirement of reasonableness.
3. CRA 2015: trader and consumer: Trader cannot exclude/restrict liability for death or personal injury resulting from negligence. In relation to other loss: trader can exclude/restrict liability for negligence if term/notice is fair. Term is unfair if, contrary to requirement of good faith, it causes significant imbalance in parties’ rights and obligations under contract to detriment of consumer - similar clause for notices.
4. Common law: Would conscientious person with D’s knowledge, skill and resources be reasonably expected to have done smth which would have helped avoid accident? - Represents minimum legal standard of care which can never be excluded by agreement or notice - applies where eg D is private occupier

Question 37

Can you use exclusion or limitation clauses under OLA 1984?

Answer 37

Likely that same common law restriction would apply as OLA 1957 - however provisions of UCTA and CRA would NOT apply