Occupiers Liability Act 1957 Flashcards
Introduce OLA 1957.
- Provides a statutory duty on occupier towards lawful visitors.
- S.2 (2): occupier has to make sure visitor will be reasonably safe in using premises
- Under OLA 1957 can claim for personal injury + damage to property.
Explain the first element of establishing a duty of care, in relation to OLA 1957- Occupiers.
- D doesn’t have to own property.
- No statutory definition of ‘occupier’.
- Wheat v E Lacon + Co. Ltd: Lord Denning stated a person is an occupier if he has a sufficient degree of control over premises.
- Harris v Birkenhead Corporation: still be an occupier even if you aren’t presently there.
Explain the second element of establishing a duty of care, in relation to OLA 1957- Premises.
- Has to be proved personal injury/property damage happened in premises + they were danger.
- S.1 (3) (a): ‘fixed or moveable structure, including any vessel, vehicle + aircraft’
- Revill v Newbury: was premises dangerous?
Explain the third element of establishing a duty of care, in relation to OLA 1957- Lawful Visitors.
- S.2 (1): occupier owes a lawful visitor common duty of care.
- Lawful visitors can be: adults, children, workmen or independent contractors.
Adults: - Invitees: people who have been invited to enter/have express permission to be there.
- Licensees: persons who may have expressed/implied permission to be on land for a particular period.
- Contractual Permission: (e.g. work places, school, tickets to be somewhere)
- Statutory Right Of Entry: legal authority
- S.2 (2): occupier doesn’t have to make premises completely safe for visitor- only do what’s reasonable.
- Laverton: reiterated this.
- Apres Lounge v Wade (2023): confirmed Laverton.
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Dean + Chapter of Rochester Cathedral: Decided that:
1) Tripping, slipping + falling are everyday occurrences. Occupiers not responsible for ensuring roads + paths are maintained to a pristine state.
*2) Risk is reasonably foreseeable, only where there’s a reasonable source of danger which a reasonable person would recognise occupier should take remedial action.
Children:
* Occupier owes children coming onto premises common duty of care, + additional special duty.
* S.2 (3): occupier ‘must be prepared for children to be less careful than adults. Premises must be reasonably safe for children of that age.’
* Glasgow Corporation v Taylor: occupier should guard against any kind of ‘allurement’ or attraction which places child at risk of harm.
* Phipps v Rochester Corporation: where very young children (e.g. toddler) are inured, courts reluctant to find occupier liable, as child should be under supervision of parent. But no age limit is set.
* Jolley v London Borough of Sutton: if any ‘allurement’ exists, no liability on occupier if damage/injury suffered isn’t foreseeable (must be foreseeable).
Workmen:
* S.2 (3) (b): occupier wont be liable where a tradesman fails to guard against any risks they should know about.
* Lewin v Gray (2023): confirmed this, if injured by something different, occupier can still owe duty of care + be sued.
Independent Contractors:
* If visitor’s injured by a workman’s negligent work, occupier may have defence + be able to pass claim to workman.
* S.2 (4): 3 requirements need to be satisfied.
1) Must be reasonable for occupier to have given work to indecent contractor.
2) Contractor hired must be competent to carry out task
3) Occupier must check work’s been properly done. Can require occupier to employ expert to check. (usually fails here- D hasn’t checked).
* Woodward v Mayor of Hastings: if all conditions are satisfied, occupier has a defence to claim + injured C will have to claim against contractor. Claim against D ends here.
Explain the second element of OLA 1957: Breach Of Duty
Standard is objective- of a reasonable person.
Reasonable Person:
* Reasonable person- ordinary person performing the tasks competently.
* There are a number of variations of ‘reasonable person’, + court may have to consider whether D has special characteristics: is he a professional, is he inexperienced, is he a child.
Is He A Professional? (doctor, nurse, teacher, e.t.c.)
* Bolam: professionals are judged by the standard of the profession as a whole. Asks 2 questions for deciding whether professions have breached their duty of care.
1) Does D’s conduct fall below standard of ordinary, competent, member of that profession?
2) Is there a substantial body of opinion within professional that’d support course of action taken by D?
* Pook v Rossall School (2018): more recent case, confirming Bolam.
Is He Experienced?
* Nettleship v Weston: learners/anyone in experience is expected to perform tasks to the same standard as a more experienced person.
Is He A Child? (look out for age)
No age of legal responsibility in tort law.
* Mullin v Richards: standard for children, is that of a reasonable person of D’s age at same time of accident.
Risk Factors:
Has C Any Special Characteristics Which should Be Taken Account Of?
* Paris v Stepney Borough Council: higher standard of care required
What’s The Size Of The Risk? (always applicable)
* Bolton v Stone: where risk is small, unlikely there’s a breach of duty.
* Lewis v Wandsworth London Borough (2020): confirmed decision in Bolton.
Have All Appropriate Precautions Been Taken? (always applicable)
* Latimer v AEC Ltd
Were Risks Known About At Time Of Accident?
* Roe v Minister Of Health: if risk of harm isn’t known, can be no breach.
Is There A Public Benefit To Taking Risk?
* Day v High Performance Sports: if there’s an emergency, then greater risks can be taken + lower standard of care’s accepted.
Explain the third element of OLA 1957: Damage
- Looks at both causation + remoteness of damage.
- Negligence can’t be sustained where damage is trivial + real damage must’ve been suffered.
Factual Causation: - Ritz Hotel Casino v Al-Daher: ‘But for’ D’s act/omission, injury/damage wouldn’t have occurred.
- Intervening at can break chain of causation (novus actus interveniens)- 3rd party, C’s own act, natural but unpredictable event.
Remoteness Of Damage- Legal Causation: -
The Wagon Mound: test for remoteness- injury/damage must be reasonably foreseeable (test for legal causation). DAMAGE TO PROPERTY FINISHES HERE.
Type Of Injury Foreseeable: -
Bradford v Robinson Rentals: consequence foreseeable, even if more severe.
Take Your Victim As You Find Him: - Smith v Leech Brain + co: ‘egg shell rule’- type of damage is reasonably foreseeable, but is much more serious because C had a pre-existing condition, then D’s liable for all consequences.
Explain how the defence of Contributory Negligence can be used in relation to OLA 1957.
- Law Reform (Contributory Negligence) Act 1945: any damages awarded to C can be reduced according to extent/level they contributed to their own harm.
- Sayers v Harlow Urban District Council: not a full defence + only results in reduction of damages.
- Jayes v IMI (Kynoch) Ltd: possible for there to be a 100% reduction in damages.
- O’Connell v Jackson: damages can be reduced where motorcyclist fails to wear crash helmet.
- Stinton v Stinton: C accepted lift from drunk driver- knew he was over the limit. Damages were reduced.
Explain how the defence of Consent (Volenti Non Fit Injura) can be used in relation to OLA 1957.
- Subjective- takes into account factors
- Full defence, C accepts voluntary assumption of risk of harm.
To succeed D has to show:
1) Knowledge of the precise risk involved
2) Exercies of free choice by C
3) Voluntary acceptance of risk - S.149 Road Traffic Act 1998: defence can’t be used for road traffic accidents- as of 3rd party insurance.
- Stermer v Lawson: defence wont apply merely because C knows of existence of risk; must have full understanding of nature of actual risk.
- Smith v Baker: wont succeed where C has no choice but to accept risk.
- Sidaway v Governors of Bethlem Royal + Maudsley Hospitals: consent relevant in medical claims.
- If C acts against employers orders + is injured, defence likely to succeed
Explain how the defence of Warning Notices can be used, in relation to OLA 1957.
- Complete defence.
- Can be oral or written.
- S.2 (4): warning is ineffective unless in all circumstances was enough to enable visitor to be reasonably safe.
- Rae v Mars Ltd: if premises are extremely dangerous, occupier may be req to erect barriers or additional warnings to keep visitors safe.
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Staples v West Dorset District Council: if danger’s obvious + visitor’s able to appreciate it, no additional warnings is necessary.
Warning Notices- Exclusion Clauses: - S.2 (1): occupier’s able ‘to restrict, modify, or exclude his duty by agreement or otherwise’. (limit/exclude liability)
- S.2 (1) Unfair Contract Terms Act 1977: for business occupiers a notice can’t be referenced to, to restrict his ability resulting from personal injury or neg caused by death.
- If there are such clauses, they’re ineffective + can’t operate as a defence to occupier.
