Tort 7: Occupiers Liability

Question 1

What is the duty of care under the Occupiers Liability Act 1957 and 1984

Answer 1

1957: Duty of care on occupiers of premises to lawful visitors.

1984: duty of care on occupiers of premises to trespassers.

Question 2

When is someone a visitor under 1957 act?

Answer 2

Person who is invited into the premise

Not if they then exceed the scope of the permission.

Question 3

Who is an occupier of a premises?

Answer 3

Person who has control over the premises:
- need not be owner
- may be builder taking control over building site
- tenant (except from areas not included in tenancy such as common areas where it is landlord)

Question 4

What counts as a premises for occupiers liability?

Answer 4

Land including:
- any building
- garden

for 1957 act
- fixed or movable structure (such as scaffolding)

Question 5

What is an occupier duty of care to lawful visitors?

Answer 5

Common duty of care to:
- take such care as is reasonable under the circumstances to see that the visitor will be reasonably safe in
- using premises for such purpose as they have been invited or permitted to be there.

Question 6

How to assess if standard of care is breached by occupiers for lawful visitors?

Answer 6

Will have regard to:
- magnitude of risk of harm; and
- practicality to taking precautions, taking into account all precautions and circumstances

Will depend on class of visitor:

• children: occupier should be prepared for children to be less careful so may need to take more precautions
• visitors entering premises in exercise of their calling: these should guard against any special risk incidental to that calling (electrician should be more careful of wiring etc.)

Question 7

What special classes are there of lawful visitors and how does this effect the standard of care of occupiers?

Answer 7

Children:
- occupier should be prepared for children to be less careful so may need to take more precautions

Visitors entering premises in exercise of their calling:
- these should guard against any special risk incidental to that calling (electrician should be more careful of wiring etc.)

Question 8

Can an occupier discharge their duty to lawful visitors?

Answer 8

Warnings
- only if visitor was warned of danger
- in all circumstances it was enough to enable the visitor to be reasonably safe
- for example must give alternate route

Independent Contractors cause tort only if:
- occupier acted reasonably in entrusting the work to an independent contractor
- the occupier took such steps as they reasonably ought to be be satisfied that (1) the contractor was competent, and (2) the work had been done properly

Question 9

What happens if lawful visitor is harmed by danger carried out by independent contractors on a premises?

Answer 9

Occupier not liable so long as below is satisfied

1. Occupier acted reasonably in entrusting the work to an independent contractor
   - often reasonable to use contractors rather than do work yourself
2. Occupier took such steps they reasonably ought to be be satisfied that the contractor was competent
   - maybe references etc.
3. Occupier took such steps as they reasonably ought to be be satisfied that the work had been done properly
   - the more technical and complex work is the less the occupier can be expected to check it personally

Question 10

What defences can an occupier use against claims of occupiers liability?

Answer 10

Exclusion of Liability
- statutory rules apply

Voluntary Assumption of Risk

Contributory Negligence

Question 11

What are the limits on exclusion of liability for lawful visitors for business occupiers?

Answer 11

Business Occupiers (acting in course of business)
- cannot exclude death or PI
- exclusion of other damage must be reasonable for business visitors
- exclusion of other damage must be fair for non business visitors

Question 12

How can occupiers exclude liability for lawful visitors?

Answer 12

Must give effective notice. Must be:

• clear that wording of the exclusion covers damage in question; and
• exclusion must have been adequately brought to attention of claimant.

Contractual Exclusion
- must be incorporated into contract by being brought to attention before contract was made

Non-contractual Exclusion
- must take adequate steps to bring to the attention of visitors before the encounter risk for which liability is excluded

Question 13

What is the difference between an occupier relying on a warning vs notice for lawful visitors?

Answer 13

Warning
- is arguing that duty was fulfilled by warning

notice
- Setting up a defence

Question 14

When does an occupier owe a duty to a trespasser?

Answer 14

Only if all below are satisfied:

• occupier is (or ought reasonably to be) aware of danger;
• Occupier is (or ought reasonably to be) aware that trespasser may come into the vicinity of the danger; and
• The danger is one against which it would, in all circumstances, be reasonable to expect the occupier to offer protection.

Question 15

Do occupiers owe a duty for damage to property?

Answer 15

Only to lawful visitors.

Question 16

How can an occupier discharge a duty owned to trespassers?

Answer 16

Warning
- taking reasonable steps to give warning of the danger or discourage trespasser from including risk

Question 17

What defences can occupier use against liability to trespassers?

Answer 17

Voluntary assumption of risk

Contributory negligence

(Maybe exclusion of liability)

Question 18

What duties are landlords subject to?

Answer 18

Defective Premises Act

Duty
- duty imposed to keep premises reasonably safe under circumstances, pertaining to their repair obligations or rights under tenancy

Duty Owned to
- anyone who might reasonably be expected to be affected by the defect