Occupiers Liability Flashcards
Where does occupiers liability come from
Statue and common law
What does OLA 1957 concern?
Duty of care owed to visitors
What are the two categories of visitors
Lawful visitors
Persons who are not lawful visitors
OLA 1957 S1(2)
Does not define who is the occupier but does state that the rules of common law shall apply
Under OLA 1957 who is an occupier and which case does this come from
A person who exercises an element of control over a premises
Wheat v Lacon & Co Ltd
In Wheat v Lacon & Co Ltd what are the four ways a person is an occupier
- If a landlord let’s a premises the tenant will be the occupier
- If a landlord let’s part of a building but retains certain areas then they will be the occupier of those areas
- If an owner licenses a person to use the premises but reserves the right of entry then the owner is still the occupier
- If there are contractors employed to carry out work on the premises then the owner will usually remain the occupier although there are cases where they will not
Under common law who is a visitor
Anyone who has express or implied permission to enter the premises
Under OLA 1957 what 4 ways can someone be a lawful visitor
- Someone invited to the premises by the occupier
- Someone who buys a ticket to come onto the land
- Someone who has not been specifically invited but has implied permission
- Anyone who has the right in law to enter the premises
What kind of duty of care is owed to a visitor under OLA 1957
A common duty of care
OLA 1957 S2(3)(a) common duty of care and case
An occupier must be prepared for children to be less careful than adults
Glasgow Corporation v Taylor - 7yr old died after eating poisonous berries in a park, park liable
OLA 1957 S2(3)(b) common duty of care
An occupier can expect a person in the exercise of his calling to appreciate and guard against any special risks ordinarily incident to it
OLA 1957 S2(4)(a) common duty of care
A warning may discharge the duty of care
OLA 1957 S2(4)(b) common duty of care and case
The occupier is not liable for the fault of an independent contractor provided they acted reasonably in entrusting the work to the contractor and took reasonable steps to ensure that the contractor was competent and the work was properly carried out
O’Connor v Swan - plaster fell down in D’s shop, plasterer was liable not D
Defences to a claim by a lawful visitor under OLA 1957
Contributory negligence - would reduce the amount of damages awarded to C
Volenti non-fit injuria - D would not have to pay damages
Warning notices - can be a complete defence
What is a warning notice under OLA 1957 and cases
Can be oral or written and if it is extremely dangerous barriers or display warnings must be used (Rae v Marrs, Staples v W Dorset District Council. Child visitors may still be a problem depending on warning used.
Are occupiers under OLA 1957 and OLA 1984 the same?
Yes
1957 OLA does not apply to who?
Trespassers
Which cases demonstrate how the common law was harsh on trespassers who were children OLA 1984?
Addie v Dumbrek - 4yr old killed when trespassing, “the trespasser comes on the premises at their own risk”
Law was changed in:
BRB v Herrington - 6yr old badly burned on railway, occupier had not taken reasonable steps to prevent trespassers and was liable
What kind of duty of care is owed under OLA 1984
A statutory duty of care
S1(3) OLA states that an occupier owes a duty of care if…
- They are aware of the danger or have reasonable grounds to believe it exists
- They know or have reasonable grounds to believe a trespasser may be within the vicinity or the danger or may come within the vicinity of the danger
- The risk is one against which in all the circumstances the occupier may be reasonably expected to offer some protection to the unlawful visitors
OLA 1984 S1(4)
The occupiers duty to persons other than visitors is to take reasonable care that they are not injured
OLA 1984 Tomlinson v Congleton Borough Council
Dived into a shallow park lake and was paralysed when he hit his head on some rock. Signs clearly prohibited swimming so no duty was owed
Defences to a claim by a trespasser under OLA 1984
Contributory negligence - would reduce damages owed to C
Volenti non-fit injuria - where trespasser appreciates nature and degree of the danger, complete defence
Clear warning - effectiveness of the warning may depend or the age and understanding of a child, could be a complete defence (Westword v Post Office)
OLA 1984 Lord Hoffman:
Under OLA 1957 a duty of care is owed to all visitors but under OLA 1984 a duty is owed only if certain conditions are met
