Occupiers' Liability Flashcards
When is occupiers’ liability relevant?
C has suffered loss due to the state of the premises (not a natural and obvious danger / action)
What constitues premises for purposes of OLA
Open Land
Fixed Structure
Moveable Structure
Vessel
Vehicle
Aircraft
What is the test to determine who constitutes an occupier for purposes of OLA?
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
When is someone a visitor for the purposes of OLA 1954?
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
What is a non-visitor for the purposes of OLA 1987
- Trespasser
- Exceeded terms of permission by act or geography
- enter under access agreement, NPACA, CRWA or exercising private right of way
What kind of user is not offered protection by either OLA
User of public right of way
Is the duty automatic between occupiers and visitors
yes
What is the common duty of care owed by occupiers to visitors?
Occupier must take reasonable care to see the visitor is reasonable safe using the premises for the purposes they are permitted to be there
What is the standard of care owed to children under both OLAs
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
What standard of care is afforded to skilled visitors under OLA?
Lower standard provided risk is incidental to their job
When is an occupier expected to take steps to guard against vulnerabilities of visitors under OLA?
O
Occupier is aware of vulnerability
When will a warning discharge an occupier’s duty of care under OLA?
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
When will an occupier discharge their duty for loss caused by a contractor’s faulty work under OLA?
- Work is of construction, maintenance or repair
- reasonable to appoint contractor;
- took r. steps to satisfy themselves contractor was competent; and
- took r. steps to satisfy themselves the work was properly done (no need to check if work is of technical nature)
What defences are available to visitors and trespassers?
Visitor:
* Consent
* Illegality
* Contrib Neg
* Exclusion Clause
Trespasser
* Consent and Contrib Neg only
5 points
When will an exclusion clause be valid under OLA
- Reasonable steps taken to bring notice to C’s attention before tort committed;
- Wording of notice covers loss suffered by C;
- If business occupier: Fair / reasonable under CRA / UCTA (Smith Bush factors)
- If private occupier: satisfies principle of common humanity (unreasonable if likely and low cost)
- An occupier cannot exclude / restrict liability to contractors’ employees
3 steps
When does an occupier owe a duty to a non-visitor?
- Aware danger exists or reasonable grounds
- Knowledge of trespassers in vicinity of danger at time of incident (e.g. summer / winter)
- Reasonable to offer some protection against risk (considering all circumstances)
When will it likely be reasonable to offer some protection against a danger under OLA (duty / trespassers)
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
Does an occupier owe a non-visitor a duty to prevent property damage
no
What is the standard of care of occupiers toward non-visitors?
Such care as is reasonable to see the trespasser does not suffer injury on the premises by reason of the danger concerned
