Occupiers Liability Act 1984 Flashcards
Introduce OLA 1984.
- OLA 1984: provides compensation for personal injuries only
Explain the first element of establishing a duty of care, in relation to OLA 1984- 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 1984- 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 1984- Unlawful Visitors.
- C was a trespasser- no permission to be there.
- Addie v Dumbreck: rule was harshly applied, trespassers have no rights.
- British Rail Board v Herrington: HoL made full use of Practice Statement 1966, able to change law + introduce a duty of ‘common humanity’ on occupiers to trespassers.
- S.1 (1) (a): duty of care to trespassers only where state of premises poses a danger.
- Tomlinson v Congleton Borough Council: premises must be in a dangerous state, + not C trespassers injuring himself by carrying out an activity that’s inherently dangerous.
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S.1 (3): 3 circumstances must be met to occupier to owe a duty:
1) Occupier’s aware of danger (e.g. through warning notices)
2) D knows/believes that the other (anybody) is in vicinity of danger concerned. (e.g. people regularly weren’t there.)
3) May be expected to offer the other some protection. - S.1 (4): was premises reasonably safe? (objective)
Adult Trespassers:
5 things considered when looking at adult trespassers to establish if D’s held liable (usually 2/3):
Obvious Danger: (always applicable)
* Ratcliff v McConnell: occupier wont be liable for injury if trespasser’s hurt by obvious danger.
Time Of Day + Year: (not always applicable)
* Donoghue v Folkestone Properties: time of day + year when accident happened will be relevant in deciding if occupier owes duty of care.
Money Spent: (always applicable)
* Tomlinson v Congleton Borough Council: D doesn’t have to spend lots of money in order to make premises safe from obvious dangers.
No Reason To Suspect A Trespassers: (not always applicable)
* Higgs v Foster: D wont be liable if had no reason to suspect presence of trespasser.
Not Aware Of Danger: (not always applicable)
* Rhind v Astbury Water Park: D wont be liable if wasn’t aware of danger.
Child Trespassers:
* Baldaccino v West Wittering: rules are the same for children.
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 1984: 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 1984.
- 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 1984.
- 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 1984.
- 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.
