Occupiers Liability Flashcards
Outline
Intro
- if Lawful visitor OLA 1957 applies
- if unlawful OLA 1984 applies
- Possible defences
- conclusion
intro
- identify Claimant/Defendant - Defendant must be the ‘occupier’ of ‘premises’
- danger must arise ‘due to the state of the premises’ geary
- occupier = control Wheat V Lacon
- premises widely defined s.1(2) and includes land, building, vehicles fixed and movable structures etc
Lawful Visitor
layout
- OLA 1957
- Common duty to all lawful visitors
- exception for children
- exceptions for professionals
- Did D breach duty by failing to act as the reasonable occupier would to keep the lawful visitor safe ?
common duty of care owed to all lawful visitors
s.2(2) take reasonable care to keep the visitor reasonably safe for the purpose of their visit (Laverton - took precautions but customer injured -> not completely safe)
Children exception (lawful visitor)
- Occupiers must expect children to be less careful than adults s.2(3)a
- Jolley V Sutton (danger attractive children and some injury forseeeable)
- Phipps V Rochester (too young to play w/out parent)
Professionals exception
- Occupiers can expect professionals to guard against special risks they ought to know about through their work - S.2(3)(b)
- Roles V Nathan - (Chimney sweeps poisonous gas should have been aware)
Defences to a claim by a lawful visitor
- Independent contractors
- Warning Notices
- Exclusion clauses
- Contributory negligence
- Consent(volentii)
independent contractors LV
defence
s.2(4)(b) OLA 1957
- 3 conditions must be met
- reasonable to hire contractor
- reasonable precautions taken to ensure contractor was competent
- If nature of work allows reasonable checks were taken to expect work
Cases for defence of independent contractor LV
- Haseldine v Daw (highly specialist)
- Bottomelly v Todmoren Cricket Club (reasonable care to havve safe & comp)
- Woodward V Mayor of Hastings (checking work would have revealed obvious danger)
Warning Signs defence LV
S.2(4)(a) OLa 1957
- liability discharged if effective warning
- Rae V Morris
(warning sign couldn’t be seen)
- Staples V West Dorset (obvious danger = no need for warning sign)
Exclusion Clauses LV
- operate/restict duty arising
- Applies to Occupiers of residential properties
- but under Consumer Rights Act 2015 prevents businesses restricting liability for death/PI on their premises
Contributory negligence (LV)
- consider degree of care from C for own safety -> may reduce compensation required if C partly responsible
- partial defence
Claimant is a trespasser
- OLA 1984
-duty not automatic 3 conditions must be met s.1(3) - duty
- has occupier discharged duty
3 conditions to apply duty OLA 1984
s.1(3)
- D aware of danger/reasonable grounds to believe it exists (Rhind V Astbury)
- has reasonable grounds to believe trespasser is in vicinity of the danger/may come into the vicinity of the danger (Higgs V Foster)
- risk is one against, in all circumstances, occupier can reasonable be expected to offer some protection from (Tomlinson v Congleton)
Duty OLA 1984
s.1(4) is “to take reasonable care in the
circumstances to see that the trespasser is not injured by reason of
the danger”.
has D discharged duty (UT)
- nature of premises
- Degree of danger
- Practicality of taking precautions (inc. financial rss of occupier)
- age of trespasser (adult should have known better Ratcliff v McConnell0
children (UT)
premises are dangerous from pov of child not adult -> question of fact and degree
defences to an unlawful visitor
- warning signs
- Contributory negligence
- consent
warning signs (UV)
s.1(5) = effective defence
- make danger clear
(westwood v Post Office)
- child depends on age/understanding
contributory negligence (UV)
- reduce compensation by an amount judge feels appropriate to reflect Claimants responsibility
consent (UV)
if trespasser appreciates the nature & degree of risk, more than just existence = complete defence
