Section B- Occupiers Liability Flashcards
What is occupiers liability
Rule that the occupier may be liable if injury occurs on their land and the occupier had taken proper care.
Created by a statute
What is the occupiers liability act 1957
The occupier of premises owns a DOC to lawful visitors and if the visitor is injured they are entitled to receive compensation.
Occupiers liability act 1984
Trespassers have similar rights when injured on occupiers property
Case of wheat v E. Lancon & c0. Ltd
Manager of pub was allowed to rent out rooms in his private quarter. A guest fell on an unlit stair case and died.
Held- HOL decided that both the manager and employers could be occupiers under the act so can be more than one occupier of the premises
Case of Harris v Birkenhead corporation
Kids fell in an abandoned preoperty and established the person who is in control of the premises will be considered the occupier. May be influenced on whose insurance policy covers the premises.
Case of bailey v arms
Courts can find no one in control which leaves the injured visitor with no claim
Roof of a shop
What is premises
No full statutory definition but OLA 1957 references ‘any fixed or moveable structure, including any vessel, vehicle and aircraft’. Wheeler v copas stated that a premises included a ladder
How to decide liability under the OLA 1957
- is D an occupier of premises
- is C a visitor
-has D breached his duty- failing to keep C safe for their visit
If yes, liable under 57 act
What are the areas under the 1957 act
Adult visitors
Children
Traders
Independent contractors
What is s.2(1)
A lawful visitor is owed a DOC
What is s.2(2)
The occupier must keep the visitor reasonably safe for their visit purpose for which he is invited to be there
What do lawful adult visitors include
Invitees
Licensees
Contractual permission
Statutory permission
Lawful visitors- adults and cases
Dean and chapter of Rochester cathedral v debell stated
1. Te occupier has to ensure the land is reasonably safe for visitors but do not have to guarantee safety.
2. The risk will be reasonably forsee able if there is a real source of danger
Laverton v kiapasha takeaway supreme- shop owners taken reasoable care to ensure customers were safe
Laverton v kiapasha takeaway supreme (adults)
D owned a takeaway and had slip resistant tiles and workers mopped floor when had been raining. C came in when busy and raining and slipped.
Held: COA decided owners had taken reasoable care to ensure their customers were safe- not liable as didn’t have to keep completely safe.
Occupiers liability to children and cases
Will owe an additional special duty to child visitors and must be prepared for children to be less careful than adults so the premises must be reasonably safe for a child of that age.
The standard of care is measured subjectively according to the age of the child.
Occupier should guard against any allurment- Glasgow corporation v Taylor- liable if they are aware an injury could occur even if they couldn’t predict the exact way it could happen
Jolley v London borough of Sutton
Liddle v yorkshire CC
Very young children should be under parental supervision- O not liable
Phipps v Rochester corporation
Bourne leisure v marsden
Case of Glasgow corporation v Taylor (children)
A 7 year old child ate poisonous berries from a shrub in a public park and died
Held: council should have fenced off the danger and buries were an allurment
Case of jolley v London borough of Sutton (children)
For 2 years children played in an abandoned boat which council failed to move. Two boys lifted the boat up and suffered serious injury.
Held: HOL stated council was liable even though it wasn’t forsee able exactly what the children would do on the boat.
Case of liddle v yorkshire CC (children)
A child was injured when jumped off a soil bank
Held- despite obvious allurment the D was not liable since the O had warned the child on M numerous occasions
Case of Phipps v Rochester corporation (children)
5 year old was playing with 7 year old sister and fell down trench
Held- council not liable as O is entitled to expect the parents wouldn’t let them. Go to an unsafe area
Bourne leisure v marsden (children)
A 2 year old drowned in a pond whilst under care of parents
Held- holiday park not liable- pond dangers were ovious and parents should have seen then
Occupier liability to those carrying out trade or calling and cases
O owe tradesmen a common DOC
They won’t be liable where tradesman fail to guard against risks which they should know about or would be expected to know about.- roles v Nathan
Roles v Nathan (traders)
Two chimney sweep died after inhaling carbon monoxide- the sweeps had been warned of danger
Held- O not liable as they were right to presume the sweeps would have been aware of the danger.
Independent contractors and cases
If a visitor is injured by a worksmans negligent work, the occupier may have a defence and able to pass the claim to the workman, making them liable not the O.
1.must be reasoable for o to given work to IC- haselsine v daw& son ltd
2. Contractor must be competent to carry out task- bottomley v todmorden cricket club
3, O must check that the work has been properly done- Woodford v mayor of Hastings
If these conditions are satisfied then the C will claim from the IC rather than the occupier
Haseldine v daw & son ltd (IC)
The C was killed when lift fell to bottom of the shaft
Held- O not liable as the work was highly specialist- reasoable to give work to IC
Bottomley v todmorden cricket club (IC)
Hired a stunt team to carry the firework display but were not insured to use their own hand made fireworks
Held- cricket club was not able to pass liability as hadn’t carried out competent checks and IC was not competent to carry out the task
Woodward v mayor of Hastings (IC)
School couldn’t pass liability as didn’t check if the ice had been cleared
What are the defences in occupiers liability
Contributory negligence
Volenti non fit injuria (consent)
Warning notices
Exclusion causes
What is the difference between traders and independent contractors
Traders is when the trader is injured and have to find whether occupier is liable or the traders fault and they are support to know the risk.
IC is when somebody is injured and occupier can pass liability to IC if they were in charge to keep something safe in their specialist area.
Contributory negligence and case
When the C is partly responsible then the law reform (CN) act applies and damages can be reduced according to the amount of C fault
Yvonne Forrest v Iceland foods ltd
Yvonne Forrest v Iceland foods ltd (CN)
C tripped on raised edge outside supermarket- damages were 15000
Held- court deducted 25% as it was Cs fault for not looking where they were going
Volenti non fit injuria (consent) conditions
Will be no liability where the C has consented to the danger. Must show: a. Claimant had full knowledge of the precise risk involved. B.the claimant exercised free choice. C. C voluntarily accepted the risk.
Warning notices (defences) and cases
Complete defence and the warning can be oral or written. OLA states that a warning is ineffective unless ‘in all the circumstances it was enough to enable the visitor to be reasonably safe’ if there is extreme danger there is expected to put up additional warnings.
Rae v mars (UK) ltd
Staples v west Dorset district council
Rae v marrs (UK) ltd (warning notices)
A warning sign in a sheet about a pit in the shed was not sufficient
Whereas if the danger is ovious and the visitor is able to appreciate it, no additional warnings is necessary
Staples v west Dorset district council (warning notices)
The C slipped on wet algae and claimed on the basis that there were no warning signs
Held: the algae was obvious so no further warnings were required
Exclusion causes (defences)
Under OLA 1957 an occupier is able to ‘restrict, modify or exclude his duty by agreement or otherwise’ able to limit or exclude his liability for any injury caused to the visitor e.g. in car parks might restrict or remove liability.
A trader cannot exclude or restrict liability for death or personal injury resulting from negligence’
what is an issue with there not being a statutory definition for occupier
conflicts with the separation of powers as common law is being referred to, parliament should clarify this definition. this means judges are using their own judgement which could lead to judicial creativity. however this allows judges to be flexible with their decisions and create the best outcomes.
why is it a positive that there can be more than one occupier
increases likelihood of the claimant having a successful claim. in turn increases the cs access to justice. however the decision in bailey v armes appears to be a fair decision in this case but an issue will usually arise if the courts can not establish the occupier because the lawful visitor without a remedy.
why could the area of law around premises be deemed uncertain
due to the vague definition, the term premises is open to interpretation and therefore lead to inconsistencies. this in turn will lead the law being uncertain as different judges can interpret the thing in question differently and therefore conflicts with the rule of law.
what was the purpose in passing the 57 act
purpose in passing this act was to create a common duty of care to all lawful visitors because prior to the act different duties were owed to different types of lawful visitor. the act had the effect of being fairer and more consistent to different lawful visitors and possibly fairer to the occupier also. this adheres to parliamentary sovreighnety.
the 57 act is vague to regards to what ‘reasonably safe’ means. why is this an issue?
one problem is that it is subjective from judge to judge therefore can be difficult to know the outcomes of a case. this means lawyers are unable to advise clients about how safe reasonably safe actually is so hard to predict outcomes. this leads to claimant not pursuing the case due to the feat of the judge favouring the occupier, particularly if its a wealthy company.
should the standard of care be changed to ‘completely safe’ ?
yes- people can get injured and not receive compensation because there claimed to be some safety. however not possible to maintain and may deter people from owning businesses in the fear of being sued, this would remove the responsibility of c and blame D over things which may be hard to keep factors completely safe at all times.
this is evidenced in Laverton v kiapasha takeaway supreme where at busy times they cant control all risks but did the best they could.
is the 57 act balancing the rights of both the occupier and visitor
the occupier is protected as long as they kept some safety and protects them against frivolous claims which prevents the courts from being overwhelmed. the C can receive compensation if there was a lack of safety and the courts determine this so avoids occupiers from cutting corners. however as liability is only for the conditions of premises it may limit possible claims.
what is the argument behind favouring the occupier
the opposite ruling would open the floodgates for additional claims. this may then set an unrealistic high level of responsibility upon occupiers.
what is an advantage relating to allurements
the rule relating to allurements was decided before the act but is still used to effectively protect children as it lowers the threshold required for breach. this means occupiers must provide greater protection
how much protection depends on the child’s age- is this fair on both parties?
its fair on the claimant as they are eligible to compensation as long as the age of the child justifies the level of protection provided not being sufficient. this is also fair on occupier as they can escape liability for example if they are so young its the parents responsibility.
how does the test being one of general foreseeability favour the C over the C?
it ensures children are more likely to claim due to the language being non-specific- ‘child of that age’- claim is more likely to be successful as it if anything is foreseeable.
is there a lack of consistency when it comes to occupiers liability and children
there is a lack of age limit when a parent should stop taking responsibility and an occupier should become responsible. the case of Phipps also shows further inconsistency in this area as the decision conflicts with the case of Glasgow where the parents were able to claim for the death. however this may have been because children could be expected to be alone is parks without their parents.
parliament need to reform this so the courts and public are clear as to the boundaries of the law. however most people would agree that parents should take some of the responsibility for their children.
why is there a lack of protection for the claimant in traders
risk relevant to the trade in question can allow the occupier to escape liability. this could be an issue if inexperienced e.g. apprentice and not fully aware of risks involved can be left without compensation. however the tradesman who was injured related to their trade should have their own insurance to cover medical expenses.
in bottomley v todmorden cricket club is it fair to blame the cricket club?
yes- its a basic question to ask if the contractor was insured and its unclear why they didnt check. this encourages a greater standard of care as the public could be injured due to incompetence.
however this is arguably too high a standard and doing lots of checks can be time consuming. the stunt team should not be doing it if they are uninsured.
How is independent contractors fair on both parties
As the occupier avoids liability due to them not being at fault but the claimant can still claim from the contractor. Therefore the C gets compensation for injuries and ensures IC takes accountability when they are at fault and can’t hide behind not being the occupier. However the requirements are difficult to evidence so O may have to take liability.
What might a problem be in defences in regard to a child
Children may not be able to read warning signs and therefore what might be effective for an adult wont be for a child. Furthermore children willingly take risks and as a result a noticeable warning signs could further allure children to the danger. Therefore occupiers need to take greater precaution such as fencing off dangers but will be an expense to occupier which may be costly.
