Tort Law - Occupiers' Liability Flashcards
A nine year old boy is at a playground with his mother. The playground is owned by the local authority. The boy falls over and cuts his knee badly on glass from a broken bottle. His mother was not watching him at the time. Which of the following is correct under the OLA 1957?
- The local authority owes the boy a higher standard of care than adult visitors, but it is unlikely to have breached its duty as the boy’s mother should have been supervising him.
- The local authority owes the boy a higher standard of care than adult visitors and it is likely to be in breach of duty given the playground is an area commonly used by children.
- The local authority owes the boy a higher standard of care than adult visitors and it is likely to be in breach as the boy has been injured.
- The local authority owes the boy a higher standard of care than adult visitors but it is unlikely to be in breach of duty as it is not their fault someone left a broken bottle at the playground.
- The local authority owes the boy the same standard of care as adult visitors. They are not in breach as an adult would have seen the broken bottle.
2 - is correct.
OLA 1957 occupiers owe children a higher standard of care. There is likely to be a breach here as the local authority should have got rid of the broken bottle. Children will regularly be in the area, so it is important to take extra precautions in order to keep the premises reasonably safe.
Under OLA 1957, when are visitors owed a DOC when they are invited or permitted to be on the occupier’s premises? What is the extent of the DOC?
Automatic DOC - to reasonably take care that the visitors is “reasonably safe” while on the premises.
(unless they exceed their permission and become trespassers).
When are DOCs owed to trespassers?
How far does the DOC extend for trespassers?
Danger must be known or reasonably suspected;
Trespasser must be known or reasonably suspected to be in the vicinity of the danger, or could be close to the vicinity of the danger;
In all circumstances of the case, the occupier would be reasonably expected to protect the trespasser from harm.
The DOC is to take reasonable care so that trespassers are not harmed on the premises.
What counts as “premises” for OLA?
Any part of any land, any part of any building (e.g. staircase) and any moveable structure, e.g. a vessel, vehicle or aircraft.
Even a ladder can be “premises”, e.g. where a farmer lends a dodgy ladder to the builders working on his property and one of them slips.
Is a DOC owed for inherently risky activities?
No, likely DOC does not attach - whether trespasser or visitor.
Key is that the land is not the source of the danger, but the C’s action, e.g. jumping in a lake which the council had forbade the public from entering; same story for a pool where C broke in whilst drunk, dived in and suffered serious harm.
Same for 15-year old who walked through a hole in a fence onto a live trainline - this was defended by the local counsil under “consent” (Volenti Non Fit Injuria).
Can warning discharge a DOC, and in what circumstances will this be successful?
Warning can discharge liability but they must be sufficient to meet the DOC standard
- reasonable care to keep visitors “reasonably safe”
- reasonable care to keep trespassers away from home
Lord Denning’s example:
- bridge is dangerous
- bridge to access this property is dangerous. Please use another bridge, 500m to the West.
The second is better to discharge liability than the first, which merely highlights the danger!
Can warnings exclude liability and in what circumstances will this be successful?
Warning can exclude liability (and they can do this *as well as * discharge liability via the warning):
“Danger ahead, please us the bridge to the East. The occupier does not accept liability if you attempt to cross using this dangerous bridge”.
Exclusion of liability is subject to UCTA 1977, CRA 2015, s.3 OLA 1957 and common law, if none of these apply.
Essentially, you cannot exclude liability for personal injury or death, nor can you exclude liability for people who come onto your land pursuant to contract (e.g. a building company’s employees).
Other losses from negligence can be excluded if the notice is fair (i.e. fair and reasonable; gives the person enough to rely on [UCTA] OR not in bad faith; does not cause imbalance between the parties to the detriment of the consumer [CRA 2015].
Otherwise, common law rules apply to private occupiers where statute does not apply: terms cannot be against principle of common humanity: would another occupier with D’s knowledge and skill rectified a risk of damage at small cost to themselves?
Professionals are owed a lower standard of care, only if the risk is _____
Incidental to their profession, e.g. a professional plumber will have the same standard of care owed to him if the ceiling falls in on-top of him.
What is a main difference between visitors and trespassers, re what damages they can claim?
Trespassers cannot claim property damage; only personal injury or death.
