Tort law - Occupiers' Liability

Question 1

What does occupiers’ liability concern? (1)

Answer 1

The loss caused by the state of premises, it is an extension of the traditional rules of negligence, but is largely governed by statute.

Question 2

What does OLA 1957 govern? (1)

Answer 2

Duty owed by occupiers to visitors.

Question 3

What can a claimant recover for under OLA 1957? (2)

Answer 3

Personal injury and property damage.

Question 4

What is a visitor automatically owed under OLA 1957? (1)

Answer 4

Duty of care by the occupier of the premises.

Question 5

What is the key case for occupiers’ liability? (1)

Answer 5

Wheat V Lacon OLA 1957

Question 6

What can express and implied permissions be limited by? (1)

Answer 6

Area, time and / or purpose.

Question 7

Key case for express permissions limitations? (1)

Answer 7

Pearson V Coleman Bros

Question 8

Key case for implied permissions limitations? (1)

Answer 8

Lowery V Walker 1911.

Question 9

What does s26 OLA 1957 state? (2)

Answer 9

Some persons such as policy with a warrant or persons with a statutory right6, can enter the premises as lawful visitors without permission e.g. to exercise a right conferred by law.

Question 10

What does s5(1) OLA 1957 provide a contractual permission is? (2)

Answer 10

If a person enters the premises under the terms of the contract with the occupier, in the absence of an express provision to the contrary, there is an implied term that the entrant is owed the common duty of care.

Question 11

What covers those using a public right of way (footpath)? (1)

Answer 11

Common law, neither OLA 1957 OR 1984 covers them.

Question 12

What covers those using a private right of way? (1)

Answer 12

OLA 1984 and not OLA 1957

Question 13

What covers those exercising their rights under the National Parks & Access Countryside Act 1949? (1)

Answer 13

Not regarded as visitors under OLA 1957 but are owed a duty under OLA 1984.

Question 14

What does S2(2) OLA 1957 state? (1)

Answer 14

An occupier owes a duty to take reasonable care to see that the visitor will be reasonably safe in using the premises for the purposes for which they are invited or permitted by the occupier to be there.

Question 15

Describe the standard of care an occupier owes under OLA 1957? (1)

Answer 15

Objective test like in negligence and a higher standard is owed to children and visitors with particular vulnerabilities.

Question 16

When is a lower standard of care owed under OLA 1957? (1)

Answer 16

When a person enters in the exercise of a calling.

Question 17

When will the occupier not be in breach of duty under OLA 1957? (4)

Answer 17

If they warned the claimant of the danger and the warning was enough to enable the visitor to be reasonably safe.
They will also not be in breach if where construction, repair or renovation is carried out by an independent contractor and they acted reasonably in entrusting the work to the independent contractor and satisfy the three requirements in s2(4)(b) OLA 1957.

Question 18

What are the elements of s2(4)(b) OLA 1957? (3)

Answer 18

1. Show it was reasonable to use an independent contractor
2. Checked qualifications, experience, references, local enquiries on independent contractor
3. Supervising and checking the work was done properly

Question 19

Key case for independent contractors? (1)

Answer 19

Haseldine V Daw 1941.

Question 20

What case provides that very obvious dangers may not require warning under OLA 1957? (1)

Answer 20

Staples V West Dorset District Council 1995.

Question 21

What is meant by a warning may have a dual effect? (1)

Answer 21

By giving the claimant a warning of the danger and also operate as an exclusion notice.

Question 22

What defences are available under OLA 1957? (3)

Answer 22

Volenti, contributory negligence and illegality.

Question 23

What does s2(5) OLA 1957 define volenti as? (2)

Answer 23

Consent - the claimant must be fully aware of the particular risk and through their conduct willingly accept the risk.

Question 24

What does the OLA 1984 govern? (1)

Answer 24

Duty owed by occupiers to non-visitors / trespassers.

Question 25

What is recoverable under OLA 1984? (1)

Answer 25

Only personal injury, property damage is not recoverable.

Question 26

What is a trespasser defined as in Robert Addle & Son Ltd V Dumbreck 1929? (1)

Answer 26

He who goes on to the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to.

Question 27

What must a trespasser satisfy in order to prove that the occupier owed them a duty of care? (1)

Answer 27

S1(3)(a-c) OLA 1984.

Question 28

Is there an automatic duty owed by an occupier to a non-visitor under OLA 1984? (1)

Answer 28

No.

Question 29

What is the three stage test to be satisfied to determine that an occupier owes a non-visitor a duty? (6)

Answer 29

1. If the occupier is aware of the danger or have reasonable grounds to believe it exists. S1(3)(a) 2. They know or have reasonable grounds to believe that the other is in the vicinity of danger concerned or may come into the vicinity of the danger. S1(3)(b) 3. The risk is one against which, in all circumstances, they may reasonably be expected to offer the other some protection. S1(3)(c)

Question 30

What is the key case for aware of the danger? (1)

Answer 30

Rhind V Astbury Water Park Ltd

Question 31

What is the key case for knowledge that the other is in vicinity? (1)

Answer 31

Donoghue V Folkestone Properties Ltd

Question 32

What is the key case for reasonable risk to protect trespassers against risk? (1)

Answer 32

Tomlinson V Congleton Borough Council 2003.

Question 33

What will the courts consider when analysing breach of duty under OLA 1984? (7)

Answer 33

1. Negligence breach factors 2. Age of claimant 3. Nature of danger 4. Nature of premises 5. Purpose of claimant 6. Foreseeability of trespassing 7. Whether a sufficient warning of the danger was given under s1(5)OLA 1984.

Question 34

Key case for breach of duty and OLA 1984? (1)

Answer 34

Swain

Question 35

What does S2(1) OLA 1957 allow an occupier to do? (2)

Answer 35

To extend, restrict, modify or exclude their duty to visitors but there are 4 restrictions, s3 ola 1957, ucta 1977, cra 2015 and common law.

Question 36

Can liability be excluded under OLA 1984? (1)

Answer 36

It is silent as to whether it is possible to be restricted.