Tort 4 - OLA Flashcards
What’s the difference between OLA 1957 & 1984
- OLA 1957 applies to visitors 👋
- OLA 1984 applies to non-visitors 👹
What does OLA apply to?
State of premises 🏡, not activity 🤿
(18 y/old diving into shallow lake was not an OLA issue as it was the activity that was dangerous, not the land)
What are the requirements for establishing occupiers’ liability under the OLA 1957?
- C must establish that they suffered loss due to the state of the premises.
- C must identify who the occupier is.
- C must prove that they are a visitor.
- C must establish that the occupier failed to take reasonable care for their safety.
What is the common law duty of care owed by occupiers under OLA 1957?
Occupier of premises owes common DoC to all visitors to take:
a. reasonable care that visitor
b. reasonably safe in using premises
c. for purpose for which they were permitted
What can be claimed for under OLA 1957 for visitors?
- Personal injury 🤕
- Property damage 🏚️
How is breach of duty determined under occupiers’ liability?
By measuring against the standards of a reasonable occupier while considering all circumstances incl:
- Nature of danger
- Purpose of visit
- Seriousness of injury risked
- Magnitude of risk
- Cost and practicability of avoiding danger
- Duration of danger on premises
- Warnings about danger
- Type of visitor
OLA 1957 special treatment for visitors?
- Children: Occupiers owe a greater degree of care to children, especially regarding allurement, and must ensure safety for very young children accompanied by adults.
- Skilled Visitors: Occupiers owe less care to skilled visitors, as these visitors are expected to understand and guard against risks associated with their work.
How can an occupier escape liability for injuries due to dangers on their premises?
By warnings or discharging doc to independant contractor
A. Warnings:
- adequate warnings that enable the visitor to be reasonably safe
- Factors to consider include:
1. Nature of the warning
2. Nature of danger (hidden or obvious)
3. Type of visitor (adult or child)
4. No obligation to warn about dangers that obvious to a particular visitor.
B. IC
- If a visitor is injured due to faulty workmanship of a contractor, the occupier is not liable; visitor must seek recompense from contractor.
- For occupier to be discharged of duty when engaging IC for construction, maintenance, or repair work, they must:
1. Act reasonably in entrusting work.
2. Take reasonable steps to ensure the contractor is competent.
3. Take reasonable care to check the contractor’s work is properly done.
What must be established regarding causation and remoteness of damage in occupiers’ liability?
A. C would not have been harmed if D had not been negligent.
B. No significant intervening event broke the chain of causation.
C. The kind of harm suffered must be reasonably foreseeable.
What is the difference between warnings and exclusion notices in occupiers’ liability?
Warning Notices: Informs visitors of potential hazards or dangers present on the premises- stops breach of duty occurring (example: Caution- wet floor)
Exclusion Notices: aims to limit or entirely exclude liability for injuries or damages occurring on the premises- may serve as a defense against a claim once the visitor has established a breach of duty (example: “The occupier does not accept liability for any personal injury or property damage suffered on these premises, howsoever caused,”)
What are the main defences available to occupiers in liability claims?
- Consent: C had full knowledge of the risk and willingly accepted it.
- Exclusion of Liability:
- Reasonable steps must have been taken to bring the exclusion notice to C’s attention before the tort was committed.
- The wording of the notice must cover the loss suffered by C.
- Cant exclude liability for PI/Death B2B/B2C
- Other B2B/B2C losses - valid if pass reasonableness/fairness test
- Private occupiers not subject to these rules - Contributory Negligence: C’s carelessness contributed to their damage, which can reduce the damages awarded.
How is ‘occupier’ defined?
Someone w/ sufficient degree of control over premises (doesn’t have to be owner
- If landlord doesn’t live there, tenant is occupier
- If landlord retains some part of premises- occupier of those parts
- If landlord issues a licence, they remain occupier
- If occupier employs contractor generally remain responsible with contractor
- Contractor cordoned area off with only them having control- contractor occupier
- Can be multiple occupiers of one part of the premises, and a person can be a visitor to one occupier and a trespasser to another.
- An absent occupier is still considered an occupier
What is the case on occupier?
Counsel A asked B to carry out building works but not to subcontract. B hired C who was injured. C was a visitor for B but not for A.
How is ‘premises’ defined?
Any fixed or moveable structure including vessels, vehicles or aircraft (includes a ladder)
How are ‘visitors’ defined?
- Any person w/ express 🎙️or implied 🤫 permission to be on premises 🏡
- This can be limited by notice, so visitor becomes trespasser (e.g. by area, time or purpose)
