Occupiers Liability Flashcards
re: liability of occupiers to visitors
what must C prove to establish?
- That they have suffered a loss due to the state of the premises;
- Identify the occupier;
- Prove that they are a visitor; and
- Establish that the occupier failed to take reasonable care for the visitor’s safety
What is included in the definition of premises?
wide definition, inc.:
o Open land
o Fixed and moveable structures
o Vessels
o Vehicles
o Aircraft
re: liability of occupiers to visitors
explain ‘C must suffer loss due to the state of the premises’
There must be a defective state of premises which has caused harm to C i.e.:
o C is walking up a driveway. They break their ankle in a pot hole. There would be a claim for OL.
o C is walking up a driveway. A car runs over C’s foot and breaks it. There would not be a claim for OL.
who is ‘the occupier’?
An occupier is someone who has ‘a sufficient degree of control over premises’ , it need not be the owner.
- There can be more than one occupier i.e. in Wheat case the managers and the brewing company were both held to be the occupiers
give some examples of an ‘occupier’
o Managers of a pub (Wheat)
o A landlord who lets a block of flats but retains control of the common staircase would be the occupier of the staircase
o Independent contractor (they would have control over the area they are working on)
o People who carry out maintenance
o People with control to let people in and out
re: liability of occupiers to visitors
who is a ‘visitor’?
Visitors are persons who have express or implied permission to be on the occupier’s land
implied permission i.e. if the grounds are open generally to the public
a person may have rights to enter the land under contract or by statute
As soon as someone exceeds the permission given, they become a trespasser and are dealt with under those rules
re: liability of occupiers to visitors
give some example in relation to visitors and trespassers
- police have a warrant and enter a property. They have a right to enter conferred by law. They are a visitor.
- estate agent ignores a sign saying ‘no cold callers’. They are a trespasser.
- boy enters the cinema without paying. They are a trespasser. They were permitted to enter subject to payment, which they have not.
re: liability of occupiers to visitors
what is the ‘common duty of care’
an occupier owed all visitors a ‘common duty of care’.
The DOC owed is to take such care as is reasonable in all the circumstances to see that the visitor is reasonably safe in using the premises for which they are permitted to be there (NB: the duty is to make the visitor safe, not the premises)
This applies equally to death, personal injury and property damage
re: liability of occupiers to visitors
what is the standard of care?
- The occupier must reach the standard of care of the reasonable occupier.
- They will be in breach of duty if they fail to reach this standard
re: liability of occupiers to visitors
what factors does the court consider when determining if the occupier has failed to take reasonable care for the visitor’s safety?
o Nature of the danger (specifically mentioned in 1957 Act)
o Purpose of visit
o Seriousness of injury risked
o Magnitude of risk
o Cost and practicability of steps required to avoid the danger
o How long the danger has been on the premises
o Any warnings of danger
o Type of visitor
warnings and children may reduce liability
what is the position in relation to children? Give an example.
- A higher degree of care is expected from the occupier in relation to child visitors
- This is because they cannot be expected to appreciate the dangers which would be obvious to an adult
- If the danger is an allurement, then the occupier is expected to do even more to safeguard the child’s safety
o Glasgow Corporation v Taylor (1992) C was a 7 y/o boy who died eating poisonous berries in a public garden. His father argued that D knew they were poisonous but the garden did not put adequate notices up. The court held that the berries were an ‘allurement’ to a young child and D should have taken additional precautions i.e. warning of the danger or fencing off the shrub
what can reduce an occupiers’ liability in relation to children?
Parental responsibility can reduce or even eliminate an occupiers’ liability for harm suffered to very young children
An occupier will have complied with its duty if the premises is reasonably safe for a very young child accompanied by an adult
re: liability of occupiers to visitors
what is the position in relation to skilled visitors?
Give examples
The standard of care expected of an occupier can be lowered in relation to a skilled visitor because they can be reasonably expected to appreciate and guard against any risks that are part of their job
Example 1:
o Woyjeck, a window cleaner, is injured in a fall while cleaning the outside of Harriet’s windows. A window handle, which he is using to support himself, is loose and comes off in his hand.
o The risk of such a fall was a special risk ordinarily incidental to the work of a window cleaner. Harriet could, therefore, reasonably expect Woyjeck to appreciate and guard against such a danger.
Example 2:
o James, a window cleaner, is injured on a defective stair when going upstairs in Harriet’s house to clean the inside of her windows.
o In this situation, the relevant risk is not one that is ordinarily incidental to the job of a window cleaner and, therefore, the occupier is not entitled to expect such a visitor to appreciate and guard against it.
what is the position regarding warnings?
If there is an adequate warning, then the occupier will have complied with their common duty of care and not be in breach of duty i.e. simply because there is a warning does not necessarily mean that it is sufficient
what are the key considerations when considering the adequacy of a warning?
o Nature of the warning and specificity i.e. ‘danger – slippery floor’ vs just a sign that says ‘danger’. The more specific, the more likely to be adequate i.e. ‘do not touch’, saying nothing about the warning. It need not state obvious dangers i.e. by water ‘drowning’
o Nature of the danger, is it hidden or obvious? If it is hidden the occupier will need to be more specific
o Type of visitor i.e. child visitors. A written warning may not be enough to enable a child to be reasonably safe. Tourists, does the sign need to be translated?
NB: there is a difference between warnings and exclusion notices. An adequate warning means they have complied with their duty. An exclusion notice operates as a defence.
