Occupiers' Liability Flashcards
What types of loss can visitors claim for? (OLA 1957)
- personal injury
- CEL
- property damage
What is the common duty of care owed by an occupier to visitors? (OLA 1957)
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.
Who can be considered an occupier? (OLA 1957)
Someone who has ‘sufficient control of the premises’ (Wheat v E. Lacon & Co [1966]). This includes owners, tenants, licensees, and contractors. There can be multiple occupiers.
What are considered premises? (OLA 1957)
Land, buildings, any fixed or moveable structure, including any vessel, vehicle, or aircraft.
Who is considered a visitor? (OLA 1957)
Those with express permission (considering area, time, and purpose).
Those with implied permission (e.g., postman), unless reasonable steps are taken to prevent it.
Those with lawful authority.
Those with contractual permission.
Those using a public right of way are not covered by either OLA.
What is the standard of care required by an occupier? (OLA 1957)
To take reasonable care to see that the visitor (not any visitor) will be reasonably safe in using the premises. This does not mean ensuring that the premises themselves are safe.
How should personal characteristics be taken into account? (OLA 1957)
Children are owed a higher standard of care, but the occupier is entitled to rely upon the supervisory role of parents.
Visitors entering premises to exercise their skills are owed a lower standard of care.
What are the factors to consider for falling below the standard of care? (OLA 1957)
The same test in negligence: likelihood of harm, magnitude of harm, the social value of the activity which gives rise to the risk, and the cost of preventative measures.
What can satisfy the duty of care? (OLA 1957)
A warning if it was enough to enable the visitor to be reasonably safe. Warnings could become exclusion notices. Very obvious dangers may not require warnings.
When can an occupier escape liability for work done by an independent contractor? (OLA 1957)
If the occupier acted reasonably in
* Hiring an independent contractor
* Selecting the independent contractor (checking competency)
* Supervising and checking the work was properly done to a reasonable extent (Depends on nature of the work done)
Causation and Remoteness in relation to OLA 1957
can be assumed
Defences (OLA 1957)
- Consent
- cont neg
What act governs liability towards non-visitors
Occupiers’ Liability Act 1984
what damages are recoverable under OLA 1984
Only physical injury, not property damage.
Who is considered a trespasser/non-visitor?
“He who goes onto the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to.”
When does an occupier owe a duty of care to non-visitors?
Only if all of the following are satisfied:
- The occupier is aware of the danger or has reasonable grounds to believe that it exists.
- They know or have reasonable grounds to believe that the other is in the vicinity of the danger or may come into the vicinity.
- The risk is one against which, in all the circumstances, they may reasonably be expected to offer the other some protection.
What are occupiers not expected to protect against?
Obvious risks or self-inflicted harm unless there was no genuine and informed choice by the claimant.
What is the standard of care for non-visitors?
That of a reasonable occupier, taking into account that the claimant is a non-visitor, so the standard of care should be lower.
What factors are considered when determining if the standard of care has been breached?
Nature of the danger
Whether the claimant was a child or adult
Nature of the premises
Purpose of the claimant
Whether the occupier could or should have foreseen trespassing
How can occupiers satisfy their duty with warning notices?
Easier to satisfy than under OLA 1957
Sufficient if the warning simply discourages trespass.
Physical barriers can discharge the duty
Hard to discharge duty with a warning where the claimant is a child
Defences (OLA1984)
- consent
- cont neg
Can occupiers restrict liability?
Yes but with 4 restrictions:
Cannot exclude or restrict the common duty of care to a third party (Section 3 OLA 1957).
In B2B transactions, cannot exclude/restrict liability for death or personal injury and can only restrict liability in other situations if it satisfies the requirement of reasonableness (UCTA 1977).
In B2C transactions, traders cannot exclude/restrict liability for death and personal injury and can only restrict for other forms of loss if the term or notice is fair (does not cause a significant imbalance).
Can be judged against ‘common humanity’ as per British Railway Board v Herrington [1972].
