Occupiers Liability 1957 lawful - Tort structure Flashcards
Introduction para - define etc
Occupiers Liability is the legal responsibility of an occupier for damage caused by the state of the premises. There are two main statutes; Occupiers Liability Act (OLA) 1957 which applies to lawful visitors and OLA 1984 which applies to unlawful visitors.
Define what an occupier is?
There is no statutory definition, however an occupier can be said to be ‘anyone who has sufficient control over the premises’ (Wheat v Lacon) and there can be more than one. It may be but does not have to be the owner/tenant of the premises (Haris v Birkenhead)
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Define premises?
Premises has no statutory definition, except in S3(1)(a) of the 1957 act where it’s referenced to a person having occupation or control of any ‘fixed or moveable structure including any vessel, vehicle or aircraft.’ A few examples may be land, houses, boats (Wheeler v Copas). An occupiers duty is owed wherever a visitor can go.
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Define lawful and unlawful visitor?
Common element 3 is whether or not the claimant (C) is a lawful or unlawful visitor. These can be considered separately as children, workers and adult visitors. A lawful visitor can be and invitee (persons who have been invited onto the premises), Licensees (persons with express/implied permission to be on the premises for a specific time/purpose), anyone with contractual permission or anyone with statutory right of entry. An unlawful visitor/trespasser is a person who has no permission/authority to be on the premises
If Child visitor - define the special duty owed
What are the cases?
For children there is an additional special duty owed. S2(3) OLA 1957 says that the occupier must be prepared for children to be less careful than adults…the premises must be reasonably safe for a child that age.
The standard of care is measured subjectively according to the age of the child. The occupier should guard against any ‘allurement’
Glasgow Corp v Taylor - ‘Council liable to parents - should have guarded ‘allurement’
Phipps v Rochester Corp - ‘Child should be under parents supervision’
Jolley v Sutton - ‘If an allurement exists and the damage/injury suffered is not foreseeable, occupier is not liable’
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Define Duty of Care - OLA 1957 lawful
S2(1) of the act says that an occupier owes a lawful visitor the common duty of care. S2(2) says an occupier have a duty towards visitors to take such care as in all circumstances of the case is reasonable to see the visitor is reasonably safe in using the premises for the purposes for which he is invited to be there (Laverton v Kiapasha Takeaway)
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Define the Breach of Duty - OLA 1957 lawful
The occupier must not have breached their duty. A breach occurs when an occupier fails to take reasonable steps to ensure visitor safety leading to foreseeable harm. (Bolton v Stone)
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Exclusion clauses - mention when needed and apply
S2(1) of the 1957 OLA act, an occupier can ‘restrict, modify or exclude his duty by agreement/otherwise’
S2(1) - Unfair contract terms - Business owners - cannot restrict his liability
S65 - CRA - Traders - cannot by a consumer notice restrict liability.
Warning notices - mention when needed and apply
S2(4) of the 1957 OLA act, a warning ineffective unless ‘in all the circumstances it was enough to enable the visitor to be reasonably safe’
Rae v Marrs - If danger, additional warnings may be needed
Staples v Dorset - If danger obvious and the visitor can appreciate, no additional warning signs needed
What defences can be used in regards to this?
Contributory Negligence
Consent
‘Contributory Negligence’
It can be argued (C) was partially responsible for their injuries (Revill v Newbury).
Damages may be reduced if the injured party shares responsibility.
‘Consent’
Consent is a full defence. If successful, the (C) will receive not damages.
To succeed;
Must have knowledge of precise risk involved
Exercise free choice
Voluntary exception/acceptance of the risk
