Occupiers' Liability Flashcards
Structure of the answer
1) who is the occupier
2) which Act applies
3) what is the duty owned
4) standard of care
- basic formula (reasonableness)
- apply any exceptions
5) was the duty breached
6) causation
7) remoteness
8) damages
9) defences, including exclusion of liability
Occupiers’ Liability Act, 1957
Occupiers’ Liability Act, 1984
1) applies to lawful visitors
2) applies to trespassers
Occupier
Wheat v Lacon - a person, who has a sufficient degree of control:
- if the landlord does not live on the property, the tenant is occupier
- if the landlord retains some part of the premises, he is the occupier of those parts
- if the landlord issues a licence they remain an occupier
- if the occupier employs an independent contractor they generally remain responsible
Multiple occupiers
Collier v Anglian Water Authority - there may be more than one occupier of the premises
Independent contractors
AMF International v Magnet Bowling -
Premises
s. 1(3)(a) OLA 1957
s. 1(2) OLA 1984
- any fixed, movable structure, including any vessel, vehicle or aircraft
Visitors OLA 1957
classification
1) expressed permission or licence
a) by area
Pearson v Coleman Bros - visitors can be denied to enter certain premises
b) by time
Stone v Taffe - occupier can restrict entry by imposing a time limit
c) purpose
R v Smith and Jones - if an invitee goes beyond the purpose they were invited onto the premises, they may become a trespasser
2) Implied permission
Lowery v Walker - permission exists because of the occupiers’ behavior.
3) Lawful authority
s. 2(6) OLA 1957 some persons (with a warrant or with statutory right) can enter property as lawful visitors with or without permission.
4) contractual permission
s. 5(1) OLA1957 if a person enters under the terms of a contract with the occupier, there is, in the absence of express provision to the contrary, an implied term that the entrant is owed common law duty of care.
Who is the duty owed to? OLA1957
s. 2(1) common law duty of care to all his visitors
Standard of duty (OLA1957)
s. 2(2) duty of care to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
Duty relates to “the state of premises” rather than “an activity” on the premises. It is the visitor not premises that must be safe
Breach: special considerations
OLA 1957
1) Children
s. 2(3)(a) - the occupier must be prepared for children to be less careful than adults. Higher standard of care is owed to children
- Doctrine of Allurement - children are allured or attracted on to certain dangerous premises and the occupier should be aware of this; taking precautions is necessary
Glasgow Corp v Taylor - poisoned berries from a bush.
Phipps v Rochester Corp - an occupier is entitled to assume that a child will be subject to parental care.
2) Persons entering in exercise of a calling
s. 2(3)(b) - lower level of standard.
Roles v Nathan - no liability, as this was an ordinary risk
3) warning notices
s. 2(4)(a) if the occupier gives a warning to a visitor of danger, that will only be sufficient to satisfy common law duty if in all the circumstances it was enough to enable the visitor to be reasonably safe
Roles v Nathan - occupier had warned of the danger of fumes and made sure they extinguished the boiler before commencing the work.
Staples v West Dorset District Council - obvious dangers may not require warnings.
Exclusion/limitation of liability
OLA 1957 and restrictions
s. 2(1) occupier can in so far as he is free to and does extent, modify or exclude his duty
Restrictions
1) s. 3 OLA1957 - occupier cannot, by conract, exclude or restrict the common duty of care which he owes to a 3rd party
2) The Unfair Contract Terms Act 1977
s. 1(1)(c) defines negligence, including common DOC under OLA 1957
s. 1(3) provisions of the act would be applied only
3) common law restrictions (common humanity)
British Railway Board v Herrington - represents very minimum legal standard of care which can never be excluded by either agreement or notice.
Independent contractors
General rule - duty owned by an occupier to the visitor is non delegable.
However, the occupier may escape liability if he acted reasonably in entrusting the work to the independent contractor (s. 2(4)(b))
Occupier must show that he acted reasonably in:
1) hiring an independent contractor
2) selecting the independent contractor
3) supervising and checking the work was properly done
Haseldine v Daw - defendant was not liable, as the work was technical and therefore, reasonably entrusted to contractors.
cf
Woodward v Mayor of Hastings - pupil injured himself on an icy step; defendant was able to and should have checked and supervised the contractor
Causation (legal)
for novus actus - claimant’s conduct would have to be extremely reckless.
s. 1(3)(b) - OLA1957 applies to damage to property, including the property of persons who are not themselves his visitors
Defences OLA 1957
1) Volenti
s. 2(5) OLA 1957 - if visitor agrees to run the risk, then the occupier swill not be liable
White v Blackmore
2) Contributory negligence
s. 2(3) OLA 1957 in determining the common law duty of care the degree of care and want of care, which would ordinarily be looked at in such a visitor is taken into account
OLA 1984: Duty of care
s. 1(3) - extremely narrow scope of duty of care
BUT that does not relate to children trespassers
British Railway Board v Herrington - an occupier always owed to anyone on his land a duty of common sense and common humanity
