Occupiers' Liability

Question 2

When is occupiers’ liability relevant?

Answer 2

C has suffered loss due to the state of the premises (not a natural and obvious danger / action)

Question 3

What constitues premises for purposes of OLA

Answer 3

Open Land
Fixed Structure
Moveable Structure
Vessel
Vehicle
Aircraft

Question 4

What is the test to determine who constitutes an occupier for purposes of OLA?

Answer 4

Anyone who has a sufficient degree of control over the premises
* Manger
* Tenant if LL does not reside at premises
* LL over common parts
* contractor over area has control
* More than one person can be liable

Question 5

When is someone a visitor for the purposes of OLA 1954?

Answer 5

Express or implied permission to be on land including contract or right conferred by law
* any attempt to restrict areas permitted to visit must be obvious

Question 6

What is a non-visitor for the purposes of OLA 1987

Answer 6

• Trespasser
• Exceeded terms of permission by act or geography
• enter under access agreement, NPACA, CRWA or exercising private right of way

Question 7

What kind of user is not offered protection by either OLA

Answer 7

User of public right of way

Question 8

Is the duty automatic between occupiers and visitors

Answer 8

yes

Question 10

What is the common duty of care owed by occupiers to visitors?

Answer 10

Occupier must take reasonable care to see the visitor is reasonable safe using the premises for the purposes they are permitted to be there

Question 11

What is the standard of care owed to children under both OLAs

Answer 11

Children require a higher degree of care
* Occupier must be prepared for children to be less careful than adults
* if danger is an allurement, must do even more
* if child is very young, complied with duty if make premises reasonably safe for a child who is accompanied by a resonsible parent

Question 12

What standard of care is afforded to skilled visitors under OLA?

Answer 12

Lower standard provided risk is incidental to their job

Question 13

When is an occupier expected to take steps to guard against vulnerabilities of visitors under OLA?

O

Answer 13

Occupier is aware of vulnerability

Question 14

When will a warning discharge an occupier’s duty of care under OLA?

Answer 14

Allows visitor to be reasonably safe considering type of visitor, nature of danger and specificty of warning.

If trespasser, simply making access more difficult (e.g. barrier) may be sufficient

Question 15

When will an occupier discharge their duty for loss caused by a contractor’s faulty work under OLA?

Answer 15

1. Work is of construction, maintenance or repair
2. reasonable to appoint contractor;
3. took r. steps to satisfy themselves contractor was competent; and
4. took r. steps to satisfy themselves the work was properly done (no need to check if work is of technical nature)

Question 16

What defences are available to visitors and trespassers?

Answer 16

Visitor:
* Consent
* Illegality
* Contrib Neg
* Exclusion Clause

Trespasser
* Consent and Contrib Neg only

Question 17

5 points

When will an exclusion clause be valid under OLA

Answer 17

1. Reasonable steps taken to bring notice to C’s attention before tort committed;
2. Wording of notice covers loss suffered by C;
3. If business occupier: Fair / reasonable under CRA / UCTA (Smith Bush factors)
4. If private occupier: satisfies principle of common humanity (unreasonable if likely and low cost)
5. An occupier cannot exclude / restrict liability to contractors’ employees

Question 18

3 steps

When does an occupier owe a duty to a non-visitor?

Answer 18

1. Aware danger exists or reasonable grounds
2. Knowledge of trespassers in vicinity of danger at time of incident (e.g. summer / winter)
3. Reasonable to offer some protection against risk (considering all circumstances)

Question 19

When will it likely be reasonable to offer some protection against a danger under OLA (duty / trespassers)

Answer 19

Nature and extent of risk
* Hidden danger
* Risk of injury is high

Type of trespasser
* adult or child
* deliberate or inadvertent

cost and practicality of precuation
* difficulty to remove / mitigate
* cost of removing / mitigating

Question 20

Does an occupier owe a non-visitor a duty to prevent property damage

Answer 20

no

Question 21

What is the standard of care of occupiers toward non-visitors?

Answer 21

Such care as is reasonable to see the trespasser does not suffer injury on the premises by reason of the danger concerned