Occupiers' Liability

Question 1

What type of people does the Occupiers’ Liability Act 1957 apply to?

Answer 1

Lawful visitors.

Question 2

What are the types of permission a visitor can have?

Answer 2

Implied - e.g. customer into a shop.

Express - Actively invited onto the premises.

Question 3

What does s.2(2) of the 1957 Act state?

Answer 3

The duty is, ‘to make the premises reasonably safe for those who come upon it’.

Question 4

Give two cases that relate to the duty owed to children.

Answer 4

Cases:

• Glasgow Corp. v. Taylor
• Jolley v. Sutton LBC
• Phipps v. Rochester Corp.

Question 5

What can claimants claim for under the 1957 Act?

Answer 5

Personal injury & Damage to property.

Question 6

What does the Unfair Contract Terms Act 1977 say about excluding liability?

Answer 6

Libility cannot be excluded for personal injury caused by negligence.

Question 7

Is a warning sign required for an obvious danger? Give a case to solidify your anser.

Answer 7

No - Derby v. National Trust - risk of drwonong in a lake is obvious.

Question 8

What does s .1(3) of the 1984 Act state?

Answer 8

An occupier owes a duty if:

1) . They are aware of the danger.
2) . They are aware that trespassers may come into th evicinity of the danger.
3) . The danger is one he is reasonably expected to offer some protection against.

Question 9

What does s. 1(4) of the 1984 Act state?

Answer 9

A visitor can become a trespasser.

Question 10

Give a case when someone became a trespasser.

Answer 10

Tomlinson v. Congleton BC

Question 11

Is a duty owed for obvious dangers?

Answer 11

No. (Ratcliff v. McConnell)

Question 12

What happened in Woodward v. Mayor of Hastings?

Answer 12

The danger didn’t require expert knowledge to identify - snow on a ramp.

Question 13

What can trespassers claim for?

Answer 13

Personal injury only.

Question 14

What does s. 1(5) of the 1984 Act state?

Answer 14

The occupier must, ‘take all steps that are reasonable’. Thus a warning sign may exclude liability.

Question 15

What does s. 1(6) of the 1984 Act state?

Answer 15

No duty is owed if the trespasser has willingly accepted the risk. Volenti non fit injuria.

Question 16

In what way is the 1957 Act fair and just on claimants?

Answer 16

Permissible answers:
- Multiple occupiers - Wheat v. E. Lacon - Able to maximise compensation/indemnification.

• Higher standard of care for children - s. 2(3)(a) - protecting the most vulnerable.
• Can claim for bother personal injury and damage to property.

Question 17

In what way is the 1957 Act fair and just on occupiers?

Answer 17

Permissible answers:
- Duty placed on parents - (Phipps v. Rochester) - places responsibility in the hands of the most suitable persons.

• Visitor is only visitor for the invited purpose - ‘foolhardy and reckless few’ (Sutton LJ in The Calgarth ‘use stairs… not bannisters’).
• Persons exercising a calling can be responsible - professionals are expected to take precautions.

Question 18

In what way is the 1984 Act fair on the occupier?

Answer 18

Permissible answers:
- Hard to prove - s .1(3) - therefore acts as a deterrent for trespassers

• Adult claimants are less successful - Volenti will apply in most cases - as the C. will be said to consent - e.g. Radcliff v. McConnell.
• Only claim for personal injury - shouldn’t have been there in the first place - also acts as a deterrent.
• Warnings can exclude liability - however a fence wouldn’t cost much more yet add greater protection for people of all ages.

Question 19

Give 4 disadvantages of the law on occupiers’ liability.

Answer 19

Permissible answers:
- Floodgates argument means legally actionable claims are unsuccessful - e.g. Rochester Cathedral v. Debell - tripping when not looking.

• Higher standard of care for children asks too much of occupiers as they have to second-guess the unpredictable nature of children.
• Implied permission is vague - Lowery v. Walker - farmer clearly objected - also s.2(2) - ‘reasonably safe’ is too vague - lawyers like certainty to properly advise clients.
• Blurred lines between parental responsibility and occupier’s responsibility (Phipps v. Rochester Corp) (Glasgow Corp. v. Taylor).

Question 20

Give an avenue for reform.

Answer 20

• Compulsory insurance for occupiers - rise in premiums.
• No fault liability - occupiers will be liable regardless - increase the No. of claims - Lord Hobhouse - Burglar received compensation from victim of theft in Revill v. Newbery - ‘never policy of law…protect…foolhardy and reckless few’.