Occupiers' Liability Flashcards
Liability of occupiers to visitors
Someone seeking to prove an occupier’s liability to a visitor must establish a number of
important factors. To fall within the 1957 Act a claimant would need to:
* establish that they have suffered loss due to the state of the premises;
* identify the occupier;
* prove that they are a visitor;
* establish that the occupier failed to take reasonable care for the visitor’s safety
Who is the occupier?
most important characteristic of an occupier is the element of
control they have over the premises. Control need nott be exckusive, eg: An independent contractor, working on another person’s premises, could also constitute an
‘occupier’ while on the premises (along with the owner of the premises), having the required
degree of control over the area where it is working. Thics control is determined by a question of degree.
Who is a visitor?
A visitor who exceeds his express or implied permission becomes a trespasser and will potentially fall under the Occupiers’ Liability Act 1984
Common duty of care: the duty is directed towards the visitor’s reasonable safety rather
than towards the safety of the premises. NB: standard of care expected of an occupier is the same
as that in an ordinary claim in negligence.
when assessing the standard of care expected of the ‘reasonable occupier’. These factors
include:
* nature of the danger;
* purpose of visit;
* seriousness of injury risked;
* magnitude of risk;
* cost and practicability of steps required to avoid the danger;
* how long the danger had been on the premises;
* any warning of the danger;
* type of visitor.
Cont’d
Special visitors/risks
Children: Where the danger is an allurement, an occupier must therefore do even more to safeguard a child’s safety than where it is not. This has the effect of further increasing the standard of care. the courts have considered that parental responsibility can reduce or eliminate the liability of occupiers for the harm suffered to very young children. Occupiers will have complied with their duty to a very young child visitor if they make their premises reasonably safe for a child who is accompanied by the sort of guardian by whom the occupier is entitled, in all the
circumstances, to expect the child to be accompanied.
Skilled workers: the occupier is entitled to expect such a visitor to appreciate and guard against any special
risks which are part of/ordinarily incidental to the visitor’s job.
Escaping breach by warnings:
An adequate warning will mean that the occupier has complied with their common duty of care. The occupier will not, therefore, be in breach of duty.
Was the warning given by the occupier was sufficient
to enable the visitor to be reasonably safe? this is a ? of fact.
Court will consider: nature of the warning (was it specific?); nature of the danger (was it hidden? or obvious?); and the type of visitor
NB: It is necessary to distinguish between a warning notice on the one hand, and a notice which
purports to restrict or exclude an occupier’s liability on the other. The significance of this distinction is that an occupier may comply with their
common duty to a visitor by a warning notice. EN is a potential defence.
Independent contractors: provided the occupier satisfies the three
requirements to be found in the 1957 Act, the occupier will have discharged their common
duty of care. If injury then results from the faulty workmanship of the contractor, the occupier is
not liable.
the occupier had
acted reasonably in:
* entrusting the work to an independent contractor; and
* had taken such steps (if any) as they reasonably ought in order to satisfy themselves that
the contractor was competent; and
* had taken such steps (if any) as they reasonably ought in order to satisfy themselves that
the work had been properly done
NB: The ‘work’ must be ‘work of construction, maintenance or repair’.
Next!
Consider now:
Causation and remoteness of damage
Defences:
Consent
Exclusion fo liablity
* Reasonable steps must have been taken to bring the exclusion notice to the claimant’s
attention before the tort was committed.
* The wording of the notice must cover the loss suffered by the claimant.
Applicatin takes subject to UCTA and CRA - death and persnal injury can not be excuded against .
NB: Private occupiers, on the other hand, are not subject to the control of UCTA or CRA. Ordinary
householders can, therefore, display a prominent notice at the entrance to their property
excluding their liability to visitors.
Contributory negligence
Liability of occupiers to trespassers
Duty owed to? - TRESSPASSORS - As
being a trespasser is determined by whether the entrant does in fact have express or implied
permission, it does not matter that the entrant is unaware that they are trespassing.
NB: Illegality - If such a trespasser is injured in their attempt to
commit a serious crime and the occupier is found to have breached a duty owed under the1984
Act, if the defence of illegality applied, it would deprive the trespasser of a remedy. x
