OLA 1957

Question 1

Scope

Answer 1

• death, personal injury and property damage (s1(3)(b))
• occupancy/activity duties (s1(1) or s1(2)?)

Tomlinson v Congleton (swimming); Fairchild (asbestos); Bottomley v Todmorden (fireworks).

Question 2

An occupier

Answer 2

The control test (Wheat v E Lacon)

• Shtern v Cunnings: landowner not occupier.
• Harris v Birkenhead: physical occupation is not necessary.

Question 3

A premise

Answer 3

“Any fixed or moving structure” s1(3)

• railway lines (Videan v BTC)
• airport runway (Monarch v Luton)
• harbour waters (Anchor v Dundee)
• open land next to path (Singh v CCC)
• ladder (Wheeler v Copas)

Question 4

A visitor

Answer 4

• Express permission: right by law s2(6)
• Implied permission:

Stone v Taffe (party) and Ferguson v Welsh (sub-contractor): ostensible authority
Taylor v Glasgow: children ('doctrine of allurement')
Frequent use (Lowery v Walker) although repeated trespass is insufficient (Edwards v Railway Executive)

• Exceeded permission:

The Calgarth (banister)
Tomlinson v Congleton (swimming)

Question 5

Common duty of care

Answer 5

Includes both negligent acts and negligent omissions: Dufosse v Melbry (tree icicle) although this is not a duty to guard against all dangers: Berryman v Hounslow (lift) and Pierce v WSCC (fountain)

Question 6

Common duty of care - a breach

Answer 6

Likelihood of harm; gravity of harm and social value (Tomlinson v Congleton)

Question 7

Common duty of care - the visitor

Answer 7

• must have care (s2(3)): Tacagni v CCC (cliff running)

- known vulnerabilities (s2): Pollock v Cahill (blind)

Question 8

Common duty of care - obvious risks

Answer 8

No liability on autonomy and defensiveness reasons.

• Poppleton v Trustees: dangerous manoeuvre whilst climbing
• Edwards v Sutton: bridge without a fence

Although a moat ending was not obvious in Taylor v English.

Question 9

Common duty of care - children

Answer 9

The occupier must expect the child to have less care section 2(3)(a).

However, he can also expect the child to be supervised: Bourne v Marsden (over fence to lake); Phipps v Rochester (industrial building site).

Question 10

Common duty of care - common callings

Answer 10

s2(3)(b): Roles v Nathan - chimney sweeps

Question 11

Common duty of care - independent contractors

Answer 11

There is a duty upon the occupier to have made a reasonable entrustment and him to take steps to ensure that work was properly done and the contractor was competent.

• Alexander v FPL: door closing mechanism.
• Gwilliam: consider insurance position (velcro wall).
• Naylor v Payling: no need to consider insurance position (club entrance)

Glaister affirmed Naylor v Payling.

Question 12

Common duty of care - warnings

Answer 12

Warnings must be specific:

• Rae v Mars (no mention of immediacy of danger)

Warnings must cover danger that actually arises:

• White v Blackmore (motorcycle)

Warnings are unnecessary for obvious dangers:

• Darby v NT (swimming with notice in car park).

Question 13

Defences

Answer 13

• Contributory negligence: Rae v Mars.

- Volenti non fit iniuria: White v Blackmore (motorcycle); Geary v JD (banister)

Question 14

Statutory exclusion of liability

Answer 14

• C is not a consumer, D is acting in course of business (even non-profit) => UCTA 1977.

s2(1): no exclusion for personal injury or death.
s2(2): must be reasonable.
s1(3)(b): exception for education/recreational visits.

• C is a consumer, D is a trader => CRA 2015.

s2(2): “trader” - acting for purposes relating to trade, business, craft or profession.
s2(3): “consumer” - acting for purposes wholly/mainly outside that individual’s trade, business, craft or profession.
s65(1): no exclusion for personal injury or death.
s62: cannot be “unjust”.
s66(4): exception for recreational purposes.