Occupiers' liability

Question 1

What is the common duty of care under S2(2) OLA 1957?

Answer 1

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

Question 2

What is the definition of an occupier as set out in Wheat v Lacon (1966)?

Answer 2

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

Question 3

What are the four categories of occupier as set out in Wheat v Lacon (1966)?

Answer 3

1. If the landlord does not live on the property, the tenant is the occupier
2. If the landlord retains some part of the premises, they are the occupier of those parts
3. If the landlord issues a license, they remain an occupier
4. If the occupier employs an independent contractor, they generally remain responsible

Question 4

Can there be multiple occupiers?

Answer 4

Yes, there may be more than one occupier if the degree of control is shared with others, including independent contractors if they are in sufficient control of the place they are working.

Question 5

What is the definition of premises under S1(3)(a) OLA 1957?

Answer 5

Any fixed or moveable structure, including any vessel, vehicle or aircraft.

Question 6

What is the definition of visitors under S1(2) OLA 1957?

Answer 6

The persons who are to be treated as visitors are the same as the persons who would at common law be treated as invitees and licensees.

Question 7

In what three ways may express permission to be on the premises (guests) be limited by notice?

Answer 7

1. Area - Darby v National Trust (2001): sign saying no bathing in the pond was not next to the pond and was inconspicuous therefore C remained a visitor.
2. Time - Stone v Taffe (1974): a guest in a pub after licensing hours was held to be a visitor as the pub did not restrict entry by imposing a clear time limit on their opening hours.
3. Purpose - Tomlinson v Congleton (2003): it was made clear to the C that the lake was to be used for canoeing, fishing and windsurfing only. By swimming, the C was a trespasser not a visitor.

Question 8

In what way may a visitor have implied permission to be on the premises, refer to Lowery v Walker (1911)?

Answer 8

A postman has implied permission to be on a person’s property to deliver letters.

Lowery v Walker (1911): public used D’s land as a shortcut for 35 years and the C was held to have implied permission as the D was aware of this and took no action to prevent it.

Question 9

What is lawful authority under S2(6) OLA 1957?

Answer 9

S2(6) OLA 1957: some persons such as police officers with a warrant or gas board officials can enter the premises as lawful visitors due to their statutory right to do so.

Question 10

What is contractual permission under S5(1) OLA 1957?

Answer 10

S5(1) OLA 1957: if a person enters the premises under the terms of a contract with the occupier, there is an implied term that the entrant is owed the common duty of care.

Question 11

What is the standard of care under OLA 1957?

Answer 11

The standard of care is that of the reasonable occupier and is an objective test.

Question 12

What is the standard of care for children, refer to the cases of Taylor v Glasgow CC (1922) and Phipps v Rochester Corp (1955)?

Answer 12

S2(3)(a) OLA 1957: an occupier must be prepared for children to be less careful than adults.

Taylor v Glasgow CC (1922): higher standard owed as D should have protected children against danger of poisonous berries.

Phipps v Rochester Corp (1955): where reasonable an occupier is entitled to assume that a child will be subject to parental care.

Question 13

What is the standard of care for professionals, refer to the case of Roles v Nathan (1963)?

Answer 13

S2(3)(b) OLA 1957: an occupier can reasonably expect such persons to appreciate and guard against any risks incidental to their job.

Roles v Nathan (1963): chimney sweeps failed to extinguish the boiler and were killed by carbon monoxide. The sweeps should have protected against this risk as it was connected to their work and their training.

Question 14

What test is used to determine whether the D has fallen below the standard of care?

Answer 14

The test used is the same as in a negligence claim which takes into account:
-likelihood and magnitude of harm,
-social value of activity
-cost of preventative measures.

Question 15

Can an occupier discharge the common duty of care through warnings, refer to the case of Roles v Nathan (1963)?

Answer 15

S2(4)(a) OLA 1957: an occupier will satisfy the common duty of care if they warn the visitor of the danger and the warning was enough to enable the visitor to be reasonably safe.

Roles v Nathan (1963): the D had issued numerous warnings regarding the danger of fumes and even physically removed the C from the chimney at one point because they had not turned off the boiler!

Question 16

What are the three requirements for an occupier to escape liability via an independent contractor defence under S2(4)(b) OLA 1957?

Answer 16

1. Hiring an independent contractor-it must have been reasonable to do so. The more technical the work, the more reasonable.
2. Selecting the independent contractor (competency check)-was it reasonable to choose the independent contractor in question e.g. qualifications, experience, references.
3. Supervising and checking the work was properly done-the occupier must supervise and check the work as reasonably as possible.

Question 17

Describe the defence of volenti/consent under S2(5) OLA 1957, with reference to the case of Titchener v BRB (1983).

Answer 17

S2(5) OLA 1957: C must be fully aware of the particular risk and through their conduct willingly accept the risk.

Titchener v BRB (1983): a 15 year old consented to the risk when she walked through a gap in the fence onto a live railway line.

Question 18

Describe the defence of contributory negligence under S2(3) OLA 1957, with reference to the case of Young v Kent (2005).

Answer 18

S2(3) OLA 1957: the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, is taken into account.

Young v Kent (2005): where the C is a child, the child will be judged against a reasonable child of the same age.

Question 19

What does the OLA 1984 govern?

Answer 19

OLA 1984 governs the duty owed by occupiers to non-visitors, also known as trespassers.

Question 20

What loss is recoverable under OLA 1984?

Answer 20

The occupier is only liable for physical injury, including disease and any impairment of either a person’s physical or mental condition (ss1(1)(a) and 1(9) OLA 1984).

Property damage and economic loss is not recoverable (s1(8) OLA 1984).

Question 21

What is the definition of trespasser/non-visitor?

Answer 21

He who goes on to the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to.

Question 22

What is the duty of care under S1(4) OLA 1984?

Answer 22

The duty of care is to take such care as is reasonable in all the circumstances to see that the entrant does not suffer injury on the premises by reason of the danger concerned.

Question 23

What is the three-stage test that needs to be satisfied to establish a duty under OLA 1984?

Answer 23

1. The occupier is aware of the danger or have reasonable grounds to believe it exists
2. Knowledge that the other is in the vicinity
3. Reasonable to protect trespasser against the risk

Question 24

Can an occupier satisfy their duty under OLA 1984 through warning notices, refer to Titchener v BRB (1983)?

Answer 24

S1(5) OLA 1984 provides that the duty may be satisfied if the occupier takes all reasonable steps to give warning of the danger concerned or to discourage persons from incurring the risk.

Easier to satisfy the duty under OLA 1984 than OLA 1957.

Titchener v BRB (1983): fences constructed by the D were sufficient warnings, physical barriers are enough to discourage trespassers from taking the risk.

Question 25

Describe the defence of volenti/consent under S1(6) OLA 1984, with reference to the case of Ratcliff v McConnell & Harper College (1997)?

Answer 25

This defence is provided for under S1(6) OLA 1984.

Ratcliff v McConnell and Harper College (1997): the defence of consent would have been successful for the C drunkenly diving into a swimming pool and breaking his neck. He was well aware of the risks of diving into a shallow pool and was of full capacity and had voluntarily chosen to engage in an inherently risky activity.

Question 26

Can the defence of contributory negligence be used against OLA 1984 claims?

Answer 26

Not provided for in OLA 1984 but has been successfully relied upon in the past.

Young v Kent CC (2005): Court of Appeal found that the C had been contributorily negligent to the percentage of two-thirds.

Question 27

Can an occupier use an exclusion clause in relation to the common duty of care owed under OLA 1957?

Answer 27

S2(1) OLA 1957 allows an occupier, in so far as they are free to do so, to extend, restrict, modify or exclude their duty to visitors.