Occupiers liability and Product Liability Flashcards
What is occupiers liability?
An occupier owes the common duty of care to all their visitors
Concerned with loss caused by state or condition of premises.
The 1957 act governs it to visitors
And then 84 governs it to non-visitors
Visitors occupiers liability?
Loss
- Both personal injury and property damage
Duty of care
- Duty of care is as reasonable to see that the visitor will be reasonably safe in the premises for the purposes for which they were permitted by occupier to be there.
Occupier
- Imposes duty on the occupier of the premises. Someone who has sufficient degree of control over premises
In wheat
- If landlord does not live in property, then tenant is occupier
- If landlord retains some part of premises like common areas, they are the occupier
- If landlord issues a license, they remain an occupier
- If occupier employs an independent contractor
There can be multiple occupiers
What does the duty apply to?
Occupier owes an automatic duty of care to visitors
- Visitors are persons who have express or implied permission to be on premises. Includes those with lawful authority and contractual permission
Test for occupier liability?
- Reasonable occupier – objective test – VISITOR HAS TO BE REASONABLY SAFE NOT THE PREMISES – IF AWARE OF VULNERABILITY THEN SHOULD TAKE MEASURES
- Child visitors owed a higher standard of care
- Persons entering in exercise of calling are owed a lower duty of care – builders
To test whether it fell below - Use likelihood and magnitude of harm, cost of preventive measures.
When can a duty be discharged?
Discharge a duty through warning – if they warn the visitor - can sometimes serve as an exclusion notice.
In order for it to defeat a claim in negligence the wanting needs to be sufficient enough to ensure the visitor would be reasonably safe. So be specific.
Discharging duty through independent contractors –
3 requirements
- Hiring an independent contractor
- Selecting the independent contractor – check qualifications
- Supervision and checking the work was done properly – only what’s reasonable
Defences to visitors occupiers liability?
- Volenti/consent – claimant must be fully aware of the particular risk and through conduct accept the risk
- Contributory negligence
- Illegality
Non visitors occupiers liability?
1984 act imposed a duty upon the occupier to take reasonable care that trespassers do not suffer injury in their premises by reason of the danger concerned.
DO NOT SUFFER HARM FROM THE STATE OF THE PREMISES.
Duty owed to non-visitors
Loss
- Occupier is only liable for physical injury – not property damage
Occupier – defined in same way as visitors
Premises – same way at 1957
Robert Addie V Dumbreck - a little boy was known to go into field and even though they are a trespasser NOW would be afforded some protected.
Duty of care
- No automatic duty of care – only owe it if: 3 stage test.
- 1. The are aware of the danger or reasonable to expect them to be
- 2.Reasonable grounds to believe someone could be in danger from it
- in a car someone knew people swam during the winter but not aware people swam during the night at midwinter.
- 3.Risk is one which they may be reasonably expected to offer some protection
- special consideration if they’re a child.
Breach under OLA 1884
- The standard if that of a reasonable occupier
- Weigh up negligence breach factors
- like nature if danger, whether it’s a child, nature of premises,
- Warning notices – take reasonable steps to bring it to other persons notice.
- difficult for notices to discharge duty WHEN CLAIMANT IS A CHILD. TO YOUND TO APPRECIATE THE DANGER.
Same defences as above
- consent
- contributory negligence
-illegality
Exclusion clauses for occupiers liability? For visitors.
Section 3 OLA
- Occupiers cannot by contract exclude or restrict common duty of care they owe a third party. So if it’s bound by a contract to let people use the premises the duty it care is still owed to those strangers and cannot be restricted by contract.
- So, if a and b contract, b’s employees will have a claim
Unfair contract terms
- Applies to business-to-business liability
- Cannot exclude liability for death or personal injury from negligence
- Person can exclude or restrict liability
- Should be fair just and reasonable
Consumer rights act
- APPLIED WHEN THE defendant is acting as trader – a trader cannot restrict liability for personal injury or death from negligence. In other losses it can if the notice is fair.
Common law restrictions
Common humanity.
What is product liability?
The CPA provides a statutory basis for claiming in relation to damage caused by defective products. It aimed to introduce a strict liability regime
S2(1) –
- Subject to following provisions, where any damage is caused wholly or partly by defect in a product every person to whom subsection (2) applies shall be liable for damage.
Product
- Means any goods, or electivity, or raw part
Defect –
- If safety if is not such that a person’s generally expected it to be
This is different to negligence and the standard of reasonable care to ensure product is up to standards BUT ITS MEANT TO DEMAND MORE OF MANUFACTURERS
Damage
- Includes most kind of loss NOT Pure economic loss
- Limits
- No claim in relation to property damage unless it exceeds £275 not including interest.
- No claim for damage to property unless property is ordinarily intended as private use/occupation/consumption
- Cant recover for business purposes
Persons liable for damage
- Who is liable
- Either producer, manufacturer, or person who has imported it
Who can sue and be sued and defences in product liability?
Persons liable for damage
- Producer of product
- Any persons who held them out as producer
- Any persons who imported product into UK
Who can bring a claim
- Consumers
Defences
- The defect did not exist in product at relevant time
- The state of scientific and technical knowledge was would not have recognised the defect
Exemption clauses
- S7 PROHIBITS ANY EXLCUSION
Limitation
- Must be brought within 3 years from date of injury or damage.
