Occupiers Liability

Question 0

Which act covers visitors and which trespassers?

Answer 0

OLA 57: visitors.

OLA 84: trespassers.

Question 1

Write an introduction for an occupiers liability question.

Answer 1

The law concerning the duty that occupiers owe to visitors has been codified into the Occupiers Liability Act 1957 (OLA 57). Similarly, the lesser duty that occupiers ow to non-visitors and trespassers- those who enter the premises without invitation and whose presence is either unknown to the proprietor or, if known, practically objected to (Lord Dunedin in ADDIE v DUMBREK)- is codified in the Occupiers Liability Act 1984 (OLA 84). These acts run alongside the common law in application, and in the present scenario there are a number of claims that potentially trigger one or more of these statutory provisions. This is because several of the parties are injured by the state of the land in question as opposed to harm consequent of general negligence.

Question 2

A non-visitor/trespasser is defined in which case?

Answer 2

Lord Dunedin in ADDIE v DUMBREK: someone who enters the premises without invitation and whose presence is either unknown to the proprietor or, if known, practically objected to.

Question 3

How do you determine if there is an occupier?

Answer 3

Not defined in the act, but WHEAT v LACON: any person with a sufficient degree of control over the land may have the duty imposed upon them.

Can be multiple occupiers: WHEAT.
Independent contractors may be sued: AMF INTERNATIONAL v MAGNET BOWLING.
Common areas: MOLONEY v LAMBETH: landlord and council liable.
Absent owners: HARRIS v BIRKENHEAD: actual occupation not required.

Question 4

Which case holds there may be multiple occupiers simultaneously?

Answer 4

WHEAT v LACON.

Question 5

Which case holds that independent contractors may be sued?

Answer 5

AMF INTERNATIONAL v MAGNET BOWLING.

Question 6

Which case holds that for common areas the council/landlord is liable?

Answer 6

MOLONEY v LAMBETH.

Question 7

Which case holds that absent owners may be sued and that actual occupation is not required?

Answer 7

HARRIS v BIRKENHEAD.

Question 8

How do you determine if there is a premises?

Answer 8

Premises is defined at s1(3)(a) OLA 57: any fixed or moveable structure including any vessel, vehicle or aircraft.

Has been interpreted widely: WHEELER v COPAS: even a ladder.

COLTMAN v BIBBY TANKERS: ship.

Question 9

What are the five ways a claimant could be a visitor?

Answer 9

EXPRESS PERMISSION
IMPLIED PERMISSION
LAWFUL AUTHORITY
CONTRACTUAL PERMISSION
DOCTRINE OF ALLUREMENT: CHILDREN.

PUBLIC/PRIVATE RIGHT OF WAY? Public not covered by either act. Private by OLA 84.

Question 10

What case holds that permission may be implied?

Answer 10

LOWERY v WALKER; prior toleration created an implied visitor access.

Question 11

How can permission be limited?

Answer 11

BY AREA: PEARSON v COLEMAN; circus. THE CALGARTH: at the scale of the house.

BY TIME: STONE v TAFFE: after hours party goer still a visitor.

BY PURPOSE: R v SMITH & JONES; if invitee exceeds reason for initial invite.

Claimants must know the limits of the authority.

Question 12

Which section discusses lawful authority as a type of permission?

Answer 12

s2(6) OLA 57: emergency services/those with a warrant enter as visitors.

Note: HIGGS v FOSTER: police must have a warrant.

Question 13

Which section discusses contractual permission?

Answer 13

s5(1) OLA 57.

Question 14

If deemed to be a visitor, does the occupier owe them a duty of care?

Answer 14

Under s2(1) OLA 57 they owe a duty. Duty is stated at s2(2): must take reasonable steps to ensure the visitor is safe using premises for the invited purpose.

i.e. WARD v TESCO: someone shopping should be safe whilst shopping.

Question 15

How do you determine if this duty has been breached?

Answer 15

LATIMER v AEC: an objective test; must be reasonable in all the circumstances.

e.g. CLARE v PERRY: exit hotel by wall; hotel not in breach.

LAVERTON v KIAPASHA: had taken reasonable steps to ensure floor not slippery.

Question 16

Are there any special factors to consider? What are these factors?

Answer 16

CHILDREN: s2(3)(a).
& DOCTRINE OF ALLUREMENT.
EXPERTS: s2(3)(b).
WARNINGS: s2(4)(a).

Question 17

What does s2(3)(a) state an occupier must be with regards to children?

Answer 17

They must be prepared for the fact that children are less careful than adults.

Question 18

How does the doctrine of allurement work?

Answer 18

GLASGOW CORP v TAYLOR: may change from trespasser to visitor; ate toxic fruit; council liable.

But note: PHIPPS v ROCHESTER: occupiers are entitles to assume parents are supervising their children.

UNLESS: an area where supervision is known to be less: PERRY v BUTLINS.

Question 19

s2(3)(b) holds what with regards to experts on the premises?

Answer 19

There is no need to protect them against risks incidental to their job.

ROLES v NATHAN: chimney sweep didn’t turn off boiler.

Question 20

How do warnings impact upon a potential breach?

Answer 20

s2(4)(a): only sufficient to satisfy the duty if they are in all the circumstances enough to make the visitor reasonably safe.

ROLES v NATHAN.

Obvious dangers may not require warnings: STAPLES v WEST DORSET.

Question 21

How can liability be excluded?

Answer 21

SHIFTING LIABILITY TO INDEPENDENT CONTRACTORS: s2(4)(b).

EXCLUSION/EXEMPTION CLAUSES: s2(1).

Question 22

How can liability be shifted to independent contractors: s2(4)(b)?

Answer 22

If the IC has caused the danger and the occupier has:

1. ACTED REASONABLY IN ALL THE CIRCUMSTANCES.
2. CHECKED THE CONTRACTOR WAS COMPETENT.
3. ENSURED THE WORK WAS DONE PROPERLY.

WOOSWARD v HASTINGS: should have checked as the work wasn’t technical.

Contrast to HESELTINE v DAW: lift engineering too complicated to warrant checking.

Question 23

How can liability be excluded by an exclusion clause: s2(1)?

Answer 23

Occupers are free to exclude/limit liability in so far as they are able to do so.

As such, they are subject to UCTA 77 and the rules governing exemption clauses found there.

s2(1) UCTA: cant exclude death or personal injury.

s1(3)(b) UCTA: act applies to duties arising from occupation for business purposes, or for things done in the course of a business; s1(3)(a).

Question 24

Which section states that for visitors, damage to property also extends to the property of persons who are not themselves visitors?

Answer 24

s1(3)(b) 57.

Question 25

What defences does the act specifically mention are applicable?

Answer 25

s2(5): VOLENTI: specifically mentions that if ignore warning signs; suggests knowledge of the risk is not enough because a person would need a free choice.

s2(3): CONTRIBUTORY NEGLIGENCE: s2(3).

Question 26

If the claimant is considered a trespasser; does the occupier owe them a duty?

Answer 26

s1(3)(a)-(b); three stage test to see if the duty under s1(4) arises.

a. Defendant was aware of the danger/had reasonable grounds to know.
b. Defendant was aware of people in the vicinity/may come into the vicinity/ had reasonable grounds to know.
c. The danger is one in which the defendant should have protected against, reasonably so in all the circumstances.

Contrast SWAIN v NATU (no evidence of children previously on roof) with YOUNG v KENT: ruled that children trespassing on roof was an obvious risk.

Question 27

s1(4) states the duty owed to trespassers; what is it?

Answer 27

To take such care as is reasonable in all the circumstances to see that an entrant does not suffer injury.

Question 28

How do you determine if this duty has been breached?

Answer 28

CONSIDER WARNINGS: s1(5).

EXCLUSIONS: silence.

Question 29

How are warning signs treated in OLA 84?

Answer 29

s1(5): easier to satisfy than OLA 57 because trespassers almost always have a choice to enter.

TOMLINSON v CONGLETON: dive into shallow water with warnings; no duty because injury from own actions.

Question 30

How are exclusion notices dealt with by OLA 84?

Answer 30

The act is silent about them and if UCTA applies: so should be entitled to exclude.

However: HERRINGTON v BRB: cites duty of common humanity as the minimum standard, and so exclusion notices should comply with this.

Question 31

What do s1(8) & (9) OLA 84 hold with regards to recoverable damage?

Answer 31

1(8): doesn’t extend to property of the trespasser.

1(9): only physical injury and mental damage.

Question 32

What defences are available for occupiers for OLA 84 claims?

Answer 32

VOLENTI: TITCHENER v BRB: suggest a different test for the use of volenti, one that is more objective to ensure they are offered a lesser volenti protection, but TOMLINSON v CONGLETON disputed this.

CONTRIB NEG: REVILL v NEWBURY: claimant had damages reduced by two thirds due to illegal activity.