occupiers liability

Question 1

what is the duty of care for occupiers?

Answer 1

occupier of a premises owes the common duty of care to ALL of their visitors.

Question 2

what is the standard of the duty of care on occupiers?

Answer 2

take such care as is reasonable in all circumstances to see if the visitor will be reasonably safe in using the premises for purposes for which they were permitted by the occupier to be there.

duty is to keep the visitor reasonably safe rather than the premises

Question 3

what does the occupiers’ liability act 1984 govern?

Answer 3

governs the duty owed by occupiers to non-visitors

Question 4

what does the occupiers’ liability act 1957 govern?

Answer 4

governs the duty owed by occupiers to visitors

Question 5

for occupiers liability does the duty relate to ‘the state of premises’ or ‘an activity on the premises’?

Answer 5

it relates to the state of premises

Question 6

who is an occupier?

Answer 6

an occupier is someone who has a sufficient degree of control over the premises.

Question 7

in wheat, lord denning divided ‘occupiers’ into 4 categories - what are they?

Answer 7

1. if the landlord doesnt live at the property, the tenant is the occupier
2. if the landlord retains some part of the premises eg, common areas like stairways, they are the occupier of those parts
3. if the landlord issues a licence; they remain an occupier
4. if occupier employs an independent contractor, they generally remain responsible

Question 8

does an occupier need to have entire control over the premises or exclusive possession?

Answer 8

no they do not need either, instead it is sufficient to have some degree of control which they may share with others.

Question 9

what is the definition of premises?

Answer 9

it has a wide definition and can include ‘any fixed, or moveable structure, including any vessel, vehicle or aircraft’

Question 10

who is a visitor?

Answer 10

visitor is someone who has express or implied permission to be on the occupier’s premises. also includes those with lawful authority and contractual permission to be on the premises.

Question 11

if a person uses a public right of way - are they covered by occupiers liability?

Answer 11

no - they are instead reliant on common law

Question 12

is a private right of way covered by occupiers liability?

Answer 12

only covered for non-visitors (OLA 1984) and not visitors (OLA 1957)

Question 13

who is a visitor? (what are the 4 things that they need to show - only need to show one)

Answer 13

1. express permission
2. implied permission
3. statutory authority
4. contractual permission

Question 14

how can express and implied permission be limited? (there are 3 ways)

Answer 14

1. area
2. time
3. purpose

Question 15

if a visitor has personal characteristics can this affect the standard of care owed by the occupier?

Answer 15

yes it can, where the occupier is aware of a vulnerability of the visitor, they can reasonably be expected to take steps to guard against it.

Question 16

what is the standard of care owed for child visitors?

Answer 16

child visitors are owed a higher standard of care

Question 17

what is the standard of care owed for persons entering premises in the exercise of their calling (to exercise their skills)?

Answer 17

they are owed a lower standard of care

Question 18

how is it assessed if the D has fallen below the standard of care?

Answer 18

same test as in negligence
eg, likelihood of harm, magnitude of harm, social value of the activity which gives rise to the risk and the cost of preventative measures

(factors are balanced against one another)

Question 19

can an occupier discharge their duty through warnings?

Answer 19

yes, an occupier can discharge their duty if they warn the visitor of the danger and the warning was enough to enable the visitor to be reasonably safe.

Question 20

what should a warning sign contain in order to discharge the duty?

Answer 20

what the danger is, where it is and how to avoid it

Question 21

what are the 3 requirements needed that allow duty to be discharged to an independent contractor?

the occupier acted reasonably in….

Answer 21

1. hiring an independent contractor
2. selecting the independent contractor (taken steps to check competency)
3. supervising and checking the work was properly done

Question 22

what are the 3 defences that are available for occupiers liability?

Answer 22

1. consent
2. contributory negligence
3. illegality

Question 23

what type of loss is an occupier liable for?

Answer 23

only liable for physical injury (including disease and any impairment of either a person’s physical or mental condition)
property damage is not recoverable

Question 24

is there an automatic duty of care for visitors or non-visitors?

Answer 24

only automatic duty of care for visitors

Question 25

what is the 3 requirements needed for an occupier to owe a duty to a non-visitor?

Answer 25

1. they are aware of the danger or have reasonable grounds to believe that it exists
2. they know or have reasonable grounds to believe that the other is in the vicinity of the danger concerned or that they may come into the vicinity of danger
3. the risk is one against which, in all the circumstances they may reasonably be expected to offer the other some protection

Question 26

what is the standard of care under OLA 1984 (for non-visitors)?

Answer 26

that of a reasonable occupier

Question 27

what does an occupier need to do for warning signs under OLA 1984 (non-visitor)?

Answer 27

D just needs to take reasonable steps to bring danger to C’s attention

notice will be sufficient if discourages the C from trespassing

(easier to satisfy than for a visitor)

Question 28

is a physical barrier likely to be a sufficient warning under OLA 1984?

Answer 28

yes, physical barrier is likely to be enough to discourage people from incurring the risk (this is for non-visitors)

(not sufficient for a normal visitor)